69504 Federal Register / Vol. 71, No. 231 / Friday, December 1, 2006 / Proposed Rules 

(iii) The name of the owner or 

operator of the terminal if other than the 

account-holding institution. 

(6) Third party transfer. The name of 

any third party to or from whom funds 

are transferred. 

* * * * * 

fl(e) Exception for receipts in smallvalue transfers. A financial institution is 

not subject to the requirement to 

provide a receipt under paragraph (a) of 

this section if the amount of the transfer 

is $15 or less.fi 

3. In Supplement I to part 205, under 

§ 205.11—Procedures for Resolving 

Errors, under 11(a) Definition of Error, 

paragraph 6. would be added. 

Supplement I to Part 205—Official Staff 

Interpretations 

* * * * * 

Section 205.11—Procedures for 

Resolving Errors 

11(a) Definition of Error 

* * * * * 

fl6. Terminal receipts for transfers of 

$15 or less. The fact that an institution 

does not make a terminal receipt 

available for a transfer of $15 or less in 

accordance with § 205.9(e) is not an 

error for purposes of §§ 205.11(a)(1)(vi) 

or (vii).fi 

* * * * * 

By order of the Board of Governors of the 

Federal Reserve System, November 27, 2006. 

Jennifer J. Johnson, 

Secretary of the Board. 

[FR Doc. E6–20301 Filed 11–30–06; 8:45 am] 

BILLING CODE 6210–01–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

21 CFR Part 1312 

[Docket No. DEA–282P] 

RIN 1117–AB03 

Authorized Sources of Narcotic Raw 

Materials 

AGENCY: Drug Enforcement 

Administration (DEA), Justice. 

ACTION: Notice of proposed rulemaking; 

extension of comment period. 

SUMMARY: DEA is extending the 

comment period on the Notice of 

Proposed Rulemaking entitled 

‘‘Authorized Sources of Narcotic Raw 

Materials’’ published October 4, 2006 

(71 FR 58569). 

DATES: The period for public comment 

which was to close on December 4, 

2006, will be extended to January 3, 

2007. Written comments must be 

postmarked, and electronic comments 

must be sent, on or before January 3, 

2007. 

ADDRESSES: To ensure proper handling 

of comments, please reference ‘‘Docket 

No. DEA–282P’’ on all written and 

electronic correspondence. Written 

comments being sent via regular mail 

should be sent to the Deputy Assistant 

Administrator, Office of Diversion 

Control, Drug Enforcement 

Administration, Washington, DC 20537, 

Attention: DEA Federal Register 

Representative/Liaison and Policy 

Section (ODL). Written comments sent 

via express mail should be sent to DEA 

Headquarters, Attention: DEA Federal 

Register Representative/ODL, 2401 

Jefferson-Davis Highway, Alexandria, 

VA 22301. Comments may be directly 

sent to DEA electronically by sending an 

electronic message to 

dea.diversion.policy@usdoj.gov. 

Comments may also be sent 

electronically through http:// 

www.regulations.gov using the 

electronic comment form provided on 

that site. An electronic copy of this 

document is also available at the 

http://www.regulations.gov Web site. 

DEA will accept attachments to 

electronic comments in Microsoft word, 

WordPerfect, Adobe PDF, or Excel file 

formats only. DEA will not accept any 

file formats other than those specifically 

listed here. 

FOR FURTHER INFORMATION CONTACT: 

Christine A. Sannerud, PhD, Chief, Drug 

and Chemical Evaluation Section, Office 

of Diversion Control, Drug Enforcement 

Administration, Washington, DC 20537, 

telephone: (202) 307–7183. 

SUPPLEMENTARY INFORMATION: DEA 

published a notice of Proposed 

Rulemaking (71 FR 58569, October 4, 

2006) proposing to update the list of 

nontraditional countries authorized to 

export narcotic raw materials (NRM) to 

the United States by replacing 

Yugoslavia with Spain. This action will 

maintain a consistent and reliable 

supply of narcotic raw materials from a 

limited number of countries consistent 

with United States’ obligations under 

international treaties and resolutions. 

On November 3, 2006, DEA received 

a request that the comment period be 

extended to February 5, 2007. The 

Australian Government indicated that 

the additional time would be necessary 

to consult with the Australian State of 

Tasmania, the Tasmanian Poppy 

Advisory and Control Board and the 

Australian poppy industry to better 

evaluate the short- and long-term 

implications of this Notice of Proposed 

Rulemaking. 

Upon consideration of this request, 

DEA is granting a thirty day extension 

of the comment period. This allows 

sufficient time for persons to evaluate 

and consider all relevant information 

and respond accordingly. Therefore, the 

comment period is extended to January 

3, 2007. Written comments must be 

postmarked, and electronic comments 

must be sent, on or before this date. 

Dated: November 28, 2006. 

Joseph T. Rannazzisi, 

Deputy Assistant Administrator. 

[FR Doc. E6–20383 Filed 11–30–06; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF LABOR 

Employment Standards Administration 

Wage and Hour Division 

29 CFR Part 825 

RIN 1215–AB35 

Request for Information on the Family 

and Medical Leave Act of 1993 

AGENCY: Employment Standards 

Administration, Wage and Hour 

Division, Department of Labor. 

ACTION: Request for information from 

the public. 

SUMMARY: This notice requests 

comments related to the Family and 

Medical Leave Act of 1993 (the ‘‘FMLA’’

or the ‘‘Act’’). The Employment 

Standards Administration, Wage and 

Hour Division, of the Department of 

Labor (the ‘‘Department’’) seeks 

information for its consideration and 

review of the Department’s 

administration of the Act and 

implementing regulations. 

The Department held stakeholder 

meetings regarding the FMLA with more 

than 20 groups from December 2002–

February 2003. Many of the subject 

matter areas in this request are derived 

from comments at those stakeholder 

meetings and also from (1) rulings of the 

Supreme Court of the United States and 

other federal courts over the past twelve 

years; (2) the Department’s experience 

in administering the law; and (3) public 

input presented in numerous 

Congressional hearings and public 

comments filed with the Office of 

Management and Budget (‘‘OMB’’) in 

connection with three annual reports to 

Congress regarding the Costs and 

Benefits of Federal regulations in 2001, 

2002, 2004. In addition, the Department 

has reviewed numerous source 

materials about issues associated with 

the FMLA. During this process, the 


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Department has heard a variety of 

concerns expressed about the FMLA. 

Some of those concerns, however, are 

beyond the Department’s statutory 

authority to address. Some are not. In 

this regard, the Department invites 

interested parties having knowledge of, 

or experience with, the FMLA to submit 

comments and welcomes any pertinent 

information that will provide a basis for 

ascertaining the effectiveness of the 

current implementing regulations and 

the Department’s administration of the 

Act. The questions posed are not meant 

to be an exclusive list of issues for 

which the Department seeks 

commentary and information. 

DATES: Public comments should be 

received by no later than 5 p.m. est, 

February 2, 2007. 

ADDRESSES: Address all written 

submissions to 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. 

You may also submit comments by email to: whdcomments@dol.gov. 

Comments of 20 pages or less may be 

submitted by FAX machine to (202) 

693–1432, which is not a toll-free 

number. Because we continue to 

experience delays in receiving mail in 

the Washington, DC area, individuals 

are encouraged to submit comments by 

mail early, or to transmit them 

electronically by FAX or e-mail. 

FOR FURTHER INFORMATION CONTACT: 

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; telephone: (202) 

693–0066 (this is not a toll free number). 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. What the Law Covers 

The Family and Medical Leave Act of 

1993, Public Law 103–3, 107 Stat. 6 (29 

U.S.C. 2601 et seq.) (the ‘‘FMLA’’ or the 

‘‘Act’’) was enacted on February 5, 1993 

and became effective on August 5, 1993 

for most covered employers. The FMLA 

entitles eligible employees of covered 

employers to take up to a total of twelve 

weeks of unpaid leave during a twelvemonth period for the birth of a child; for 

the placement of a child for adoption or 

foster care; to care for a newborn or 

newly-placed child; to care for a spouse, 

parent, son or daughter with a serious 

health condition; or when the employee 

is unable to work due to the employee’s 

own serious health condition. See 29 

U.S.C. 2612. Employers covered by the 

law must maintain for the employee any 

preexisting group health coverage 

during the leave period and, once the 

leave period has concluded, reinstate 

the employee to the same or an 

equivalent job with equivalent 

employment benefits, pay, and other 

terms and conditions of employment. 

See 29 U.S.C. 2614. If an employee 

believes that his or her FMLA rights 

have been violated, the employee may 

file a complaint with the Department or 

file a private lawsuit in federal or state 

court. If the employer has violated an 

employee’s FMLA rights, the employee 

is entitled to reimbursement for any 

tangible loss incurred, equitable relief as 

appropriate, interest, attorneys’ fees, 

expert witness fees, and court costs. 

Liquidated damages also may be 

awarded. See 29 U.S.C. 2617. 

Title I of the FMLA applies to private 

sector employers of fifty or more 

employees, public agencies and certain 

federal employers and entities, such as 

the U.S. Postal Service and Postal Rate 

Commission. Title II applies to civil 

service employees covered by the 

annual and sick leave system 

established under 5 U.S.C. Chapter 63, 

plus certain employees covered by other 

federal leave systems. Title III 

established a temporary Commission on 

Leave to conduct a study and report on 

existing and proposed policies on leave 

and the costs, benefits, and impact on 

productivity of such policies. Title IV 

contains miscellaneous provisions, 

including rules governing the effect of 

the FMLA on more generous leave 

policies, other laws, and existing 

employment benefits. Title V originally 

extended leave provisions to certain 

employees of the U.S. Senate and House 

of Representatives, but such coverage 

was repealed and replaced by the 

Congressional Accountability Act of 

1995, 2 U.S.C. 1301. 

B. Implementing Regulations 

The FMLA required the Department 

to issue regulations to implement Title 

I and Title IV of the FMLA within 120 

days of enactment, or by June 5, 1993, 

with an effective date of August 5, 1993. 

Given this short implementation period, 

the Department published a notice of 

proposed rulemaking in the Federal 

Register on March 10, 1993 (58 FR 

13394), inviting comments until March 

31, 1993, on a variety of questions and 

issues. The Department received a total 

of 393 comments at that time from a 

wide variety of stakeholders, including 

employers, trade and professional 

associations, advocacy organizations, 

labor unions, state and local 

governments, law firms, employee 

benefit firms, academic institutions, 

financial institutions, medical 

institutions, Members of Congress, and 

others. 

After considering these comments, the 

Department issued an interim final rule 

on June 4, 1993 (58 FR 31794) that 

became effective on August 5, 1993. The 

Department also invited further public 

comment on the interim regulations 

through September 3, 1993, later 

extended to December 3, 1993 (58 FR 

45433). During this comment period, the 

Department received more than 900 

substantive and editorial comments on 

the interim regulations, from a wide 

variety of stakeholders. 

Based on this second round of public 

comments, the Department published 

final regulations to implement the 

FMLA on January 6, 1995 (60 FR 2180). 

The regulations were amended on 

February 3, 1995 (60 FR 6658) and on 

March 30, 1995 (60 FR 16382) to make 

minor technical corrections. The 

regulations went into effect on April 6, 

1995. 

C. Legal Challenges 

The Ragsdale Decision 

Since the enactment of the FMLA, 

hundreds of reported federal cases have 

addressed the Act and/or implementing 

regulations. The most significant court 

decision on the validity of the 

regulations is that of the United States 

Supreme Court in Ragsdale v. Wolverine 

World Wide, Inc., 535 U.S. 81 (2002). In 

its first case involving the FMLA, the 

Court ruled in March 2002 that the 

penalty provision in 29 CFR 825.700(a), 

which states ‘‘[i]f an employee takes 

* * * leave and the employer does not 

designate the leave as FMLA leave, the 

leave taken does not count against an 

employee’s leave entitlement[,]’’ was 

invalid because in some circumstances 

it required employers to provide leave 

to employees beyond the 12-week 

statutory entitlement. ‘‘The FMLA 

guaranteed [Plaintiff] 12—not 42—

weeks of leave[.]’’ Ragsdale, 535 U.S. at 

96. While the Supreme Court did not 

invalidate the notice and designation 

provisions in the regulations, it made 

clear that any categorical penalty for a 

violation of such requirements set forth 

in the regulations would exceed the 

Department’s statutory authority. See id. 

at 91–96. 

Other Challenges to ‘‘Categorical 

Penalty’’ Provisions 

Ragsdale is not the only court 

decision addressing penalty provisions 

contained in the regulations. Another 

provision of the regulations, 29 CFR 

825.110(d), requires an employer to 


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notify an employee prior to the 

employee commencing leave as to 

whether or not the employee is eligible 

for FMLA leave. If the employer fails to 

provide the employee with such 

information or the information is not 

accurate, the regulation bars the 

employer from challenging eligibility at 

a later date, even if the employee is not 

eligible for FMLA leave according to the 

statutory requirements. The majority of 

courts addressing this notice provision 

have found it to be invalid, even prior 

to the Ragsdale decision. See, e.g., 

Woodford v. Cmty. Action of Greene 

County, Inc., 268 F.3d 51, 57 (2d Cir. 

2001) (‘‘The regulation exceeds agency 

rulemaking powers by making eligible 

under the FMLA employees who do not 

meet the statute’s clear eligibility 

requirements.’’); Brungart v. BellSouth 

Telecomm., Inc., 231 F.3d 791, 796–97 

(11th Cir. 2000) (‘‘There is no ambiguity 

in the statute concerning eligibility for 

family medical leave, no gap to be 

filled.’’); Dormeyer v. Comerica BankIllinois, 223 F.3d 579, 582 (7th Cir. 

2000) (the regulation tries ‘‘to change 

the Act’’ because it makes eligible 

employees who, under the language of 

the statute, are ineligible for family 

leave; ‘‘The statutory test is perfectly 

clear and covers the issue. The right of 

family leave is conferred only on 

employees who have worked at least 

1,250 hours in the previous 12 

months’’). 

Legal Challenges to the Definition of 

Serious Health Condition 

Other regulatory provisions have been 

challenged as well. In particular, 

challenges to the regulatory section 

defining the term ‘‘serious health 

condition,’’ 29 CFR 825.114, have 

received significant attention. See, e.g., 

Miller v. AT&T Corp., 250 F.3d 820 (4th 

Cir. 2001); Thorson v. Gemini, Inc., 205 

F.3d 370 (8th Cir. 2000). Employers 

have reported to the Department that 

they have litigated this issue because 

there is much confusion as to what 

constitutes a ‘‘serious health condition,’’

and some employers have stated that the 

broad definition has left them in the 

untenable position of having to either 

guess what the Department and courts 

will deem to be serious or designate all 

absences for a medical condition as 

FMLA-protected. 

The Department itself has struggled 

with this definition. After the Act’s 

passage, the Department promulgated 

section 825.114(c), which states that 

‘‘[o]rdinarily, unless complications 

arise, the common cold, the flu, 

earaches, upset stomach, minor ulcers, 

headaches other than migraine, routine 

dental or orthodontia problems, 

periodontal disease, etc., are examples 

of conditions that do not meet the 

definition of a serious health condition 

and do not qualify for FMLA leave.’’

This regulatory language implements 

the legislative history of the FMLA and 

expresses the Congressional intent that 

minor, short-term illnesses for which 

treatment and recovery are very brief 

would be covered by employers’ sick 

leave programs. See H. Rep. No. 103–8, 

at 40 (1993); S. Rep. No. 103–3, at 28–

29 (1993). Therefore, when first asked 

about the proper handling of an 

employee’s request for leave due to the 

common cold, the Department issued an 

Opinion Letter stating that ‘‘[t]he fact 

that an employee is incapacitated for 

more than three days, has been treated 

by a health care provider on at least one 

occasion which has resulted in a 

regimen of continuing treatment 

prescribed by the health care provider 

does not convert minor illnesses such as 

the common cold into serious health 

conditions in the ordinary case (absent 

complications).’’ DOL Opinion Letter 

FMLA–57 (April 7, 1995). More than a 

year and a half later, however, the 

Department issued an Opinion Letter 

changing its interpretation, stating that 

DOL Opinion Letter FMLA–57 

‘‘expresses an incorrect view, being 

inconsistent with the Department’s 

established interpretation of qualifying 

‘‘serious health conditions’’ under the 

FMLA regulations.’’ DOL Opinion Letter 

FMLA–86 (December 12, 1996). The 

Department further stated that such 

minor illnesses ordinarily would not be 

expected to last more than three days, 

but if they did meet the regulatory 

criteria for a serious health condition 

under section 825.114(a), they qualify 

for FMLA leave. 

Other Legal Challenges 

Other legal issues have arisen under 

the regulations. For example, litigation 

has ensued under section 29 CFR 

825.302–.303 as to what constitutes 

sufficient employee notice to trigger an 

employer’s obligations under the FMLA. 

See, e.g., Spangler v. Fed. Home Loan 

Bank of Des Moines, 278 F.3d 847 (8th 

Cir. 2002) (employee who had made 

employer aware that she had problems 

with depression gave sufficient notice 

when she called in and indicated she 

was out because of ‘‘depression again’’). 

Another regulation that has been the 

subject of litigation is 29 CFR 

825.220(d), which discusses the impact 

of a light duty work assignment on an 

employee’s FMLA rights. See, e.g., 

Roberts v. Owens-Illinois, Inc., 2004 WL 

1087355 (S.D. Ind. May 14, 2004) (an 

employee uses up his or her twelve 

week FMLA leave entitlement while 

performing work in a light duty 

assignment); Artis v. Palos Cmty. Hosp., 

2004 WL 2125414 (N.D. Ill. Sept. 22, 

2004) (same). 

D. Statutory and Regulatory 

Developments 

In addition to developments in the 

courts, over the past decade several 

important legislative and regulatory 

developments have occurred that 

interact with the FMLA regulations. 

Most significantly, in 1996 Congress 

enacted the Health Insurance Portability 

and Accountability Act (‘‘HIPAA’’), Pub. 

L. 104–191, which addresses in part the 

privacy of individually identifiable 

health information. On December 28, 

2000, and as amended on May 31, 2002, 

August 14, 2002, and February 16, 2006, 

the Department of Health and Human 

Services (‘‘HHS’’) issued regulations 

found at 45 CFR parts 160 and 164 that 

provide standards for the privacy of 

individually identifiable health 

information. These standards apply only 

to ‘‘covered entities,’’ defined as a 

health plan, a health care clearinghouse, 

or a health care provider who transmits 

any health information in electronic 

form in connection with a transaction as 

defined in the HIPAA privacy 

regulations. See 45 CFR 160.102(a), 

164.103. Further, HHS acknowledges 

that the HIPAA statute does not include 

‘‘employers per se as covered entities.’’

The HIPAA regulations do not impede 

the disclosure of the protected health 

information for FMLA reasons if the 

employee has the health care provider 

complete the medical certification form 

or a document containing the equivalent 

information and requests a copy of that 

form to personally take or send to the 

employer in order to exercise FMLA 

rights. HIPAA regulations, however, 

clearly do come into play if, for 

example, the employee asks the health 

care provider to send the completed 

certification form or medical 

information directly to the employer or 

the employer’s representative. HIPAA 

will generally require the health care 

provider to first receive a valid 

authorization from the employee before 

sending the information to the employer 

or the employer’s representative. 

In all cases, employers have the 

statutory right under the FMLA to 

obtain sufficient medical information to 

determine whether an employee’s leave 

qualifies for FMLA protections and it is 

the employee’s responsibility to ensure 

that such information is provided to the 

employer. If an employee does not 

fulfill his or her obligation to provide 

such information upon the employer’s 

request, the employee will not qualify 

for FMLA leave. See 29 CFR 825.307–


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1Westat, ‘‘Balancing the Needs of Families and 

Employers, Family and Medical Leave Surveys, 

2000 Update,’’ January 2001. 

.308; DOL Opinion Letter FMLA–2004–

2–A (May 25, 2004). Although these 

rules may appear straightforward, recent 

enforcement experience reveals 

confusion with regard to the interaction 

of FMLA and HIPAA and clarification 

may be needed. 

Similarly, FMLA’s interaction with 

other laws is also a potential source of 

confusion. For example, since the final 

FMLA regulations were implemented in 

1995, the Equal Employment 

Opportunity Commission (‘‘EEOC’’), the 

agency responsible for enforcing the 

employment provisions of the 

Americans with Disabilities Act 

(‘‘ADA’’), has issued guidance with 

regard to the privacy of employee 

medical information. See, e.g., 

Enforcement Guidance: DisabilityRelated Inquiries and Medical 

Examinations of Employees Under the 

Americans with Disabilities Act (ADA) 

(EEOC 2000). 

E. Employer Commentary 

Employers report to the Department 

that they recognize the value of the 

FMLA and attempt to comply with its 

requirements. For example, the 

Department has not received complaints 

about the use of family leave—i.e., leave 

for the birth or adoption of a child. Nor 

do employers for the most part report 

problems with the use of scheduled 

intermittent leave as contemplated by 

the statute, such as when an employee 

requests leave for medical appointments 

or medical treatment like chemotherapy. 

Rather, employers report job disruptions 

and adverse effects on the workforce 

when employees take frequent, 

unscheduled, intermittent leave from 

work with little or no advance notice to 

the employer. 

Unforeseen, Intermittent Leave 

The Department has received 

significant commentary on the 

requirements associated with the 

administration and use of unforeseen, 

intermittent leave set forth in 29 CFR 

825.203. Employer stakeholders who 

have met with the Department as well 

as those who have submitted comments 

to Congress and OMB have indicated 

that the administration of intermittent 

leave, which must be done in 

increments that correspond to the 

employer’s payroll system (section 

825.203(d)), is overly burdensome, 

especially in the case of unforeseeable, 

intermittent leave. Similarly, many 

employer groups who participated in 

the Department’s stakeholder meetings 

stated that the requirement that 

employees be permitted to take FMLA 

leave in the smallest increments used by 

the employer’s payroll system has 

provided an opportunity to avoid 

compliance with accepted practices of 

timeliness in the workplace. Employers 

contend that one of the unintended 

consequences of the FMLA regulations 

has been that employers have little 

recourse to prevent those employees 

who take FMLA leave improperly from 

doing so under the current regulatory 

scheme. 

While the Department acknowledges 

that the regulations and the 

administrative details required by them 

may work in combination to allow 

certain employees to attempt to evade 

legitimate absence control policies, 

crafting the perfectly equipoised rule to 

single out only alleged misuse has 

proven to be a difficult task. Moreover, 

employee groups point to the 2000 

Westat Report, at 6–7, and cite that ‘‘a 

majority of [establishments] reported 

most aspects of administering FMLA are 

very or somewhat easy.’’ 1

Medical Certification Procedures 

The proper flow of accurate medical 

information is critical to the smooth 

functioning of the FMLA. The 

Department has heard repeated 

concerns from both employers and 

employees with regard to the medical 

certification procedures required by the 

regulations (see also Employee 

Commentary, infra). Employers have 

complained that due to the confusing 

nature of the medical certification form, 

health care providers often do not 

complete it properly. Thus, in order for 

the employer to determine whether a 

serious health condition exists, the 

employer frequently must secure the 

employee’s permission to contact the 

health care provider or ask another 

doctor for a second opinion. Employers 

assert, however, that the regulatory 

requirement that the employee’s health 

care provider be contacted only through 

the employer’s health care 

representative and only with the 

employee’s permission has been very 

costly for employers. See 29 CFR 

825.307. Several stakeholders have 

challenged the clarification and 

authentication process through letters 

written to OMB, describing it as difficult 

and time-consuming. 

Other commenters have noted that 

these limitations lead to either the 

employer denying FMLA leave or, 

conversely, improvidently granting 

FMLA leave because of the difficulty 

and expense of obtaining sufficient 

factual support for the employee’s 

condition. One often-cited example is 

certification for chronic conditions. An 

employee’s health care provider may 

certify an employee’s chronic condition 

and list the duration as ‘‘indefinite’’ or 

‘‘lifetime.’’ With respect to the 

frequency of the episodes of incapacity, 

the health care provider might write 

‘‘unknown.’’ Employers argue that this 

leaves them in the difficult position of 

guessing about the employee’s regular 

attendance. 

These regulatory limitations also 

apply to fitness-for-duty certifications, 

which employers may request as a 

condition of restoring an employee who 

has taken FMLA leave for the 

employee’s own serious health 

condition. See 29 CFR 825.310. 

Commenters state that these regulatory 

limitations create risks to the employee 

and to co-workers when an employee is 

in a safety-sensitive position. 

Impact on Other Workers 

Surveys conducted by both the 

Society for Human Resources 

Management (SHRM) and the 

Department reveal that employers tend 

to cover the work of employees out on 

FMLA leave with co-workers. A survey 

conducted by SHRM of its members in 

1997 indicated that co-workers cover job 

duties 92% of the time when absences 

occur. According to the 1995 report by 

the Commission on Leave entitled ‘‘A 

Workable Balance: Report to Congress 

on Family and Medical Leave Policies’’

(the ‘‘1995 Commission on Leave 

Report’’), the most prevalent method 

that employers use to cover work is to 

assign the work temporarily to other coworkers (72.3%). Similarly, in the 

Department’s 2000 report, assigning 

work to other employees was the most 

prevalent method (76.5%). 

Impact on Benefit Programs 

Many employer representatives also 

have stated that benefit programs 

(excluding health benefits, which are 

statutorily addressed in the FMLA itself) 

have suffered or have even been 

eliminated as a result of the FMLA 

regulatory requirements. The most often 

cited example is the regulatory 

requirement that FMLA leave cannot 

disqualify an employee from a perfect 

attendance award, which may have the 

unintended consequence of 

discouraging such awards and 

programs. 

F. Employee Commentary 

Groups and organizations 

representing employees have also 

provided information to the Department 

about their concerns with the FMLA. 


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2See the section on the coverage and usages 

estimates for the details of these estimates. 

3The Department filed an amicus brief in the 

First Circuit arguing that, under the current 

regulations, a five-year break in service is at the 

outer bounds of what is permissible. 

Notice and Awareness of FMLA Rights 

One consistent concern expressed by 

the employee representatives during the 

stakeholder meetings was that 

employees need to be better aware of 

their rights under the FMLA. Awareness 

of FMLA rights and responsibilities is 

critical to fulfilling the goals of the 

statute, yet it has been a challenge from 

the inception of the FMLA. 

The 1995 Commission on Leave 

Report found that 41.9 percent of 

employees at covered establishments 

had not heard of the FMLA. In 2000, a 

survey of employers and a survey of 

employees conducted for the 

Department by Westat titled ‘‘Balancing 

the Needs of Families and Employers’’

(‘‘2000 Westat Report’’) found that 40.7 

percent of covered employees had not 

heard of the FMLA and nearly half the 

employees did not know whether the 

law applied to them. Additionally, the 

2000 Westat Report revealed a 

significant difference in the estimated 

number of workers taking FMLA leave 

based upon the employee survey (2.4 

million) and the employer survey (6.1 

million).2 The reason for this 

discrepancy is not accounted for in the 

2000 Westat Report. One reason may 

have been that employers were 

designating the employee’s leave as 

covered FMLA leave and employees 

were unaware of it. This suggests the 

need for better communication between 

employers and employees. 

The regulations require an employer, 

under certain circumstances, to provide 

a posting of FMLA rights to employees 

in a language in which they are literate. 

Nonetheless, the Department received 

comments at the stakeholder meetings 

that ‘‘language barriers’’ continue to be 

an impediment to employees’

understanding and exercising of their 

rights. 

Medical Certification Procedures 

Employees have also complained to 

the Department that the medical 

certification process is too burdensome. 

Section 825.305(a) states that an 

employer may require medical 

certifications to support an employee’s 

or family member’s serious health 

condition. Section 825.308 generally 

provides that employers may ask for a 

recertification no more often than every 

30 days and only in connection with an 

employee’s absence from work. 

Employees have complained that the 

certification process is too burdensome, 

and that employers repeatedly deny 

leave based on ‘‘inadequate’’

information provided by health care 

providers—information that the 

employees think is sufficient. 

Employees have also complained that 

every 30 days is too frequent to require 

recertification for chronic, life-long 

serious health conditions. 

At the same time, the Department’s 

enforcement experience indicates that 

health care providers of employees 

complain that the certification 

requirements are too cumbersome, and 

they do not have the time to complete 

the Wage and Hour Form 380 (‘‘WH–

380’’) numerous times per employee or 

to provide detailed information. 

II. Public Comments Solicited—Key 

Issues On Which Information Is 

Requested 

The Department seeks comments and 

information from the public on all 

issues related to the FMLA regulations. 

We specifically seek comment on the 

following issues. 

A. Eligible Employee 

• Section 825.110 of the regulations 

sets forth the eligibility standards 

employees must meet in order to take 

FMLA leave. Specifically, subsection 

825.110(a) restates the statutory 

requirement that an employee needs to 

work for an employer for 12 months, 

work for 1,250 hours in the 12 months 

prior to taking leave, and work for an 

employer with 50 or more employees 

within 75 miles of the worksite in order 

to be eligible for leave. Although this 

provision has been in effect for over 10 

years, several issues continue to arise 

which appear to warrant clarification. 

• One court has interpreted the 

requirement of 12 months of service 

under section 825.110(a)(1) to preclude 

an employee from aggregating for 

coverage purposes two separate and 

distinct work periods (separated by a 5 

year absence from the company). See 

Rucker v. Lee Holding, Co., 419 F. Supp. 

2d 1 (D. Me. 2006), appeal pending, No. 

06–1633 (1st Cir.).3 The court 

acknowledged that the regulations at 

section 825.110(b) state that the ‘‘12 

months an employee must have been 

employed * * * need not be 

consecutive months’’ and that an 

employee who maintains an ongoing 

relationship with an employer 

punctuated by brief interruptions in 

service may combine those time periods 

in order to meet the 12-month 

requirement. The court also stated, 

however, that while the regulation 

‘‘accommodates individuals whose 

employment might be intermittent or 

casual, it makes no allowance for an 

employee who severs all ties with the 

employer for a period of years before 

returning.’’ Id. at 3. The Department 

seeks input on whether and how to 

address the treatment of combining nonconsecutive periods of service for 

purposes of meeting the 12 months 

requirement in section 825.110. 

• Subsection 825.110(d) states that 

employee eligibility determinations 

‘‘must be made as of the date leave 

commences.’’ This language has led to 

differing opinions about whether 

employees who have worked for 1,250 

hours may begin a block of leave before 

they have met the 12-month eligibility 

date. Compare Babcock v. BellSouth 

Advertising and Publ’g Corp., 348 F.3d 

73 (4th Cir. 2003), and Beffert v. Penn. 

Dep’t of Pub. Welfare, 2005 WL 906362 

(E.D. Pa. Apr. 18, 2005), with 

Willemssen v. Conveyor Co., 359 F. 

Supp. 2d 813 (N.D. Iowa 2005). The 

Department solicits comment on how to 

appropriately clarify this situation. For 

example, if an employee is on leave at 

the time he/she meets the 12-month 

eligibility requirement, should the 

period of leave after meeting the 

statutory 12-month requirement be 

considered protected FMLA leave? 

• In addition, the Department seeks 

comment on the differing regulatory 

tests used for determining employee 

eligibility. Subsection (d) states that an 

employer must determine whether an 

employee has met the 12-month/1,250- 

hour eligibility requirements as of the 

date leave is to commence. See 29 CFR 

825.110(d) (emphasis added). In 

contrast, subsection (f) states that for 

purposes of determining whether an 

employee works for an employer who 

employs 50 or more employees within 

75 miles of the worksite, the 

determination is to be made as of the 

date that the leave request is made. See 

29 CFR 825.110(f) (emphasis added). 

• Section 825.111 sets forth the 

standards for determining employer 

coverage under the statutory 

requirement that employers must 

employ 50 employees within 75 miles to 

be covered by the FMLA (29 U.S.C. 

2611(2)(B)(ii)). In December 2004, the 

United States Court of Appeals for the 

Tenth Circuit partially invalidated 

section 825.111(a)(3) of the existing 

regulations, which states that when an 

employee is jointly employed by two or 

more employers under section 825.106, 

the employee’s worksite is the primary 

employer’s office from which the 

employee has been assigned or to which 

the employee reports. See Harbert v. 

Healthcare Servs. Group, Inc., 391 F.3d 

1140 (10th Cir. 2004). The court ruled 

that the existing regulation, as applied 


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4The Department filed an amicus brief in the 

Fourth Circuit on rehearing arguing that the 

regulation should be interpreted solely to bar the 

waiver of prospective rights. 

to the situation of an employee with a 

long-term fixed worksite at a facility of 

the secondary employer, was arbitrary 

and capricious because it: (1) 

Contravened the plain meaning of term 

‘‘worksite’’ as the place where an 

employee actually works (as opposed to 

the long-term care placement agency 

from which she was assigned); (2) 

contradicted Congressional intent 

(manifested in 29 U.S.C. 2611(2)(B)(ii) 

and the legislative history) that if any 

employer, large or small, has no 

significant pool of employees nearby 

(within 75 miles) to cover for an absent 

employee, that employer should not be 

required to provide FMLA leave to that 

employee; and (3) created an arbitrary 

distinction between sole and joint 

employers. The Department seeks 

comment on these situations and any 

issues that may arise when an employee 

is jointly employed by two or more 

employers or when the employee works 

from home. 

B. Definition of ‘‘Serious Health 

Condition’’

• Section 825.114(c) states 

‘‘[o]rdinarily, unless complications 

arise, the common cold, the flu, 

earaches, upset stomach, minor ulcers, 

headaches other than migraine, routine 

dental or orthodontia problems, 

periodontal disease, etc., are examples 

of conditions that do not meet the 

definition of a serious health condition 

and do not qualify for FMLA leave.’’

Have these limitations in section 

825.114(c) been rendered inoperative by 

the regulatory tests set forth in section 

825.114(a)? 

• Is there a way to maintain the 

substantive standards of section 

825.114(a) while still giving meaning to 

section 825.114(c) and congressional 

intent that minor illnesses like colds, 

earaches, etc., not be covered by the 

FMLA? 

C. Definition of a ‘‘Day’’

• Should scheduled holidays count 

against an employee’s 12 weeks of 

FMLA leave when the employee is out 

for a full week as they do now? 

• Should ‘‘more than three 

consecutive calendar days’’ for a serious 

health condition in section 

825.114(a)(2)(i) mean four days or three 

days and any part of the fourth day? 

Compare Russell v. North Broward 

Hosp., 346 F.3d 1335 (11th Cir. 2003) 

(three full days and a partial day will 

meet the test for continuing treatment), 

with Murray v. Red Kap Indus., Inc., 124 

F.3d 696, 698 (5th Cir. 1997) (‘‘where an 

employee alleges that he has a serious 

health condition involving continuing 

treatment by a health care provider, he 

must first demonstrate a period of 

incapacity * * * for at least four 

consecutive days’’); Henderson v. Cent. 

Progressive Bank, 2002 WL 31086086, at 

*3 (E.D. La. Sept. 17, 2002) (‘‘statute 

requires an absence of at least four 

consecutive days’’); Seidle v. Provident 

Mut. Life Ins. Co., 871 F. Supp. 238, 

243–44 (E.D. Pa. 1994) (plaintiff could 

not show that her son had ‘‘serious 

health condition’’ because he had been 

incapacitated for only three days, not 

the statutory four or more); Bond v. 

Abbott Labs., 7 F. Supp. 2d 967, 973 

(N.D. Ohio 1998) (‘‘[plaintiff] must show 

that the period of incapacity was 

required to be at least four consecutive 

days’’). 

D. Substitution of Paid Leave 

• What is the impact of section 

825.207 which prohibits employers 

from applying their normal leave 

policies to employees substituting paid 

vacation and personal leave for unpaid 

FMLA leave? 

• Does the existence of paid leave 

policies affect the nature and type of 

FMLA leave used? 

• Do employers allow employees to 

use paid leave such as sick leave to 

cover short absences from work (such as 

late arrivals and early departures) for 

FMLA covered conditions? 

E. Attendance Policies 

• How does the FMLA impact the 

ability of employers to adhere to 

attendance policies? Has section 

825.215(c)(2) impacted the employers’

ability to use ‘‘perfect attendance 

awards’’ and other incentives to 

encourage attendance? Is there a way to 

structure such awards and still maintain 

their effectiveness as an attendance 

incentive? 

F. Different Types of FMLA Leave 

• Does scheduled FMLA leave 

present different problems or benefits 

from unscheduled FMLA leave? Does 

intermittent leave present different 

problems or benefits from leave taken 

for one continuous block of time? Does 

the length of leave taken present 

different problems or benefits? 

• Are there differences in leave usage 

based on occupation, employee 

classification, or other factors? 

• How do employers cover the work 

of employees taking FMLA leave? Does 

the length of leave impact this coverage? 

Does the fact that the leave is scheduled 

or unscheduled impact this coverage? 

Does the amount of notice given by the 

leave-taking employee impact this 

coverage? Does the fact that the leave is 

intermittent impact this coverage? 

• Do employers track late arrivals and 

early departures for FMLA-covered 

conditions? If so, how is such leave 

counted against the employee’s 

allotment of twelve weeks of FMLA 

leave? 

• Is there any evidence that 

employers are improperly denying 

requests for FMLA leave? If so, is the 

denial of FMLA leave more prevalent 

for certain types of leave? 

• Is there any evidence that 

employees are misusing FMLA leave? If 

so, how does this compare to other 

types of leave? 

• Is there any evidence of employers 

closing or relocating facilities as a result 

of employee leave patterns (either 

scheduled or unscheduled)? 

• Is there a way to appropriately 

balance employer absence control 

policies and legitimate employee use of 

unscheduled, intermittent leave? 

G. Light Duty 

• At least two courts have interpreted 

section 825.220(d) to mean that an 

employee uses his or her 12-week 

FMLA leave entitlement while on a light 

duty assignment. Should ‘‘light duty’’

work count against the employee’s 

FMLA leave entitlement and/or 

reinstatement rights? 

H. Essential Functions 

• In order to qualify for FMLA leave, 

an employee must be unable to work at 

all or unable to perform any one of the 

essential functions of the employee’s 

position. See 29 CFR 825.115. What are 

the implications of permitting an 

employer to modify an employee’s 

existing job duties to meet any 

limitations caused by the employee’s 

serious health condition as specified by 

a health care provider, while 

maintaining the employee’s same job, 

pay, and benefits? 

I. Waiver of Rights 

• Section 825.220(d) states that 

‘‘[e]mployees cannot waive, nor may 

employers induce employees to waive, 

their rights under the FMLA.’’ Some 

courts have interpreted this language to 

prohibit not only an employee’s 

prospective or future waiver of rights 

but also the ability of an employee to 

settle his or her past FMLA claim. See, 

e.g., Taylor v. Progress Energy, 415 F.3d 

364 (4th Cir. 2005), vacated and 

rehearing granted (June 14, 2006).4 The 

Department seeks input on whether a 

limitation should be placed on the 


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5Westat, ‘‘Balancing the Needs of Families and 

Employers.’’ These methodological issues are 

footnoted in the report in a variety of places, 

particularly Appendix C. 

ability of employees to settle their past 

FMLA claims. 

J. Communication Between Employers 

and Their Employees 

• Some commenters have expressed 

concern about the lack of awareness of 

FMLA rights and responsibilities among 

some employees. The Department 

requests information on whether 

employees continue to be unaware of 

their rights under the Act and, if so, 

what steps could be taken to improve 

this situation. 

• In addition, as is discussed in the 

FMLA Coverage and Usage Estimates 

section presented below, the estimated 

number of workers taking FMLA leave 

based upon the 2000 Westat employee 

survey (2.4 million) is significantly 

lower than the estimate based upon the 

employer survey (6.1 million). What 

may account for this difference? 

• Although there is evidence that 

some employers are failing to advise 

workers that their leave is being charged 

to FMLA, the Supreme Court in 

Ragsdale held that an employee is not 

automatically entitled to additional 

FMLA leave if the employer fails to 

properly advise the worker that the 

leave is being charged to FMLA because 

such a categorical penalty is 

inconsistent with the statute. What 

methods are used to notify employees 

that their leave has been designated as 

FMLA leave? What improvements can 

be made so that employees have more 

accurate information on their FMLA 

leave balances? 

• What changes could be made to the 

regulations in order to comply with 

Ragsdale and yet assure that employers 

maintain proper records and promptly 

and appropriately designate leave as 

FMLA leave? 

• Employers have reported that some 

employees do not promptly notify their 

employers when they take unforeseeable 

FMLA leave. The Department requests 

information on the prevalence and 

causes of employees failing to notify 

their employers promptly that they are 

taking FMLA leave and suggestions as to 

how to improve this situation. 

K. FMLA Leave Determinations/Medical 

Certifications 

• Does the regulatory provision 

(section 825.307) that permits an 

employer to contact the employee’s 

health care provider for purposes of 

clarification and authentication only 

through the employer’s health care 

provider result in unnecessary expenses 

for employers (e.g., by requiring them to 

hire a health care professional for 

purposes of this contact) and/or delay 

the certification process? How should 

the FMLA be reconciled with the 

Americans with Disabilities Act 

(‘‘ADA’’), which governs employee 

medical inquiries and contains no such 

limitation on employer contact? What 

are the costs and benefits to having this 

limitation? 

• Does the model certification form 

(WH–380) seek the appropriate medical 

information? If not, what improvements 

could be made to the form to make it 

clearer and easier for health care 

providers to complete, so that it is more 

likely that the necessary and 

appropriate information will be 

reported? 

• Does the two-day timeframe for 

providing notification to employees that 

their FMLA leave request has been 

approved or denied provide adequate 

time for employers to review 

sufficiently the information and make a 

determination? 

• Section 825.308 generally permits 

an employer to request a medical 

recertification no more often than every 

30 days and only in connection with the 

absence of the employee. Is that an 

appropriate timeframe? 

• Section 825.308(e) permits 

employers to request a second opinion 

only for the initial certification. What 

are the costs and benefits to greater 

flexibility in requesting second opinions 

for recertifications? Would it create any 

hardships? 

• Section 825.310(g) does not allow 

an employer to request a fitness for duty 

statement in the case of a worker who 

is absent intermittently. What are the 

benefits and burdens of permitting such 

fitness for duty certifications? 

L. Employee Turnover and Retention 

• How does the availability of FMLA 

leave affect employee morale and 

productivity? 

• Is there any evidence that FMLA 

leave increases employee retention, 

thereby, reducing employee turnover 

and the associated costs? 

III. FMLA Coverage and Usage 

Estimates 

A. Introduction 

In order to assist the Department’s 

analysis of the impacts of the FMLA 

discussed above, the Department in the 

following sections presents estimates of 

the coverage and usage of FMLA leave 

in 2005. The Department generally 

requests comment on these estimates 

and any data that would allow the 

Department to better estimate the costs 

and benefits of the FMLA. Throughout 

this section, the Department has also 

identified particular issues for which we 

request additional information and 

comment. 

The Family and Medical Leave Act 

established a bipartisan Commission on 

Family and Medical Leave to study 

family and medical leave policies and 

their impact on workers and their 

employers. The Commission surveyed 

workers and employers and issued a 

report in 1995. 

In 1999 the Department contracted 

with Westat to update the employee and 

establishment surveys conducted in 

1995. The surveys were completed in 

2000. A report entitled ‘‘Balancing the 

Needs of Families and Employers: 

Family and Medical Leave Surveys, 

2000 Update’’ was published in January 

2001 (the ‘‘2000 Westat Report’’) and is 

available on the Department’s Web site 

at www.dol.gov/esa/whd/ 

fmlacomments.htm. The 2000 Westat 

Report is actually composed of two 

separate surveys: (1) An employer or 

establishment survey; and (2) an 

employee survey. The following 

analysis updates the Department’s 

estimates of the number of workers 

employed at establishments covered by 

the FMLA, and the number of workers 

who took FMLA leave in 2005 (the latest 

year for which BLS employment data is 

available). It also highlights a number of 

important results and caveats in the 

2000 Westat Report. 

B. Westat’s Estimates 

The Department is interested in 

refining the coverage and eligibility 

estimates in the 2000 Westat Report for 

two reasons. The Department believes 

there are several methodological issues 

in the 2000 Westat Report that resulted 

in the overestimation of covered and 

eligible workers, and an 

underestimation of workers not covered 

by the Act.5 In addition, the 

employment estimates in the Westat 

Report are based upon their 2000 survey 

and may not present an accurate picture 

of the current workforce. 

Although the Bureau of Labor 

Statistics (‘‘BLS’’) reports that total 

employment in 1999 was 133.5 million, 

the 2000 Westat Report estimated the 

number of covered workers by applying 

the percentages developed in its surveys 

to a workforce of 144 million. As noted 

in Appendix C of the 2000 report, this 

methodology (e.g., using an 18–20 

month survey period) likely results in 

an overestimate of total employment. 

Moreover, ‘‘[h]ouseholds that refused to 

complete the 2000 screener tended to 

consist of persons that were not 

employed during the reference period. 


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6Westat, ‘‘Balancing the Needs of Families and 

Employers,’’ at C–12. 

7For example, the self-employed do not need to 

be included in the FMLA coverage estimates since 

they do not have to be told to rehire themselves 

after they return from ‘‘family leave.’’

8Of the two major BLS employment surveys, the 

Current Population Survey was used because it 

covers agriculture, while the Current Employment 

Statistics survey does not. 

9Westat, ‘‘Balancing the Needs of Families and 

Employers,’’ at 3–5 to 3–6. 

10 Id. at 3–5. Westat provided this caution because 

the questions Westat asked employees did not 

inquire about the seriousness of the health 

conditions. See questions A3, A4, and A5 of 

Westat’s 2000 Survey of Employees Questionnaire. 

11U.S. Department of Labor, Employment 

Standards Administration estimate based on 

Westat’s 2000 FMLA Establishment Survey data. 

12Westat, ‘‘Balancing the Needs of Families and 

Employers,’’ at 3–14. 

13This estimate is consistent with Westat’s 

estimate of ‘‘between 2.2 and 3.3 million people’’

based on the employee survey. Westat, ‘‘Balancing 

the Needs of Families and Employers,’’ at 3–13. 

14According to U.S. Department of Labor, 

Employment Standards Administration tabulation 

of data in Westat’s 2000 FMLA Employee Survey, 

34.5 percent of covered and eligible workers who 

reported taking leave for an FMLA covered reason 

Continued 

All other things being equal, this would 

lead to a higher estimate of the total 

number of employed persons in the 

2000 survey.’’ 6

Further, the 133.5 million 

employment estimate includes workers 

who are not covered by the 

Department’s regulations implementing 

the Act, such as the self-employed, 

unpaid volunteers, and many federal 

employees. Including these groups in 

the total also distorts the estimates of 

covered and eligible employees.7

C. Number of Workers Employed at 

FMLA Covered Establishments and the 

Number of Workers Eligible To Take 

FMLA Leave 

The FMLA coverage estimates 

presented in this analysis are based 

upon applying the percentages in the 

2000 Westat Report to the number of 

wage and salary workers in private 

industry and state and local 

governments in the 2005 Current 

Population Survey (see Table 1).8

TABLE 1.—CIVILIAN U.S. EMPLOYMENT

AGE 16 YEARS AND OVER IN 2005 

Millions of 

employees 

Total Employment ..................... 141.7 

Self-Employed and Unpaid 

Volunteers/Family Members .................................... 15.8 

Federal Employees (covered 

by OPM’s FMLA regs) ....... 2.6 

Wage and Salary Workers in 

Private Industry and State 

and Local Government* ........ 123.3 

Source: U.S. DOL, ESA estimates based 

upon 2005 Current Population Survey. 

* Includes some Federal government workers employed by certain agencies such as the 

USPS. 

The best available FMLA coverage 

estimates were published in Table A2–

3.1 of the 2000 Westat Report, which are 

presented in Table 2 below. 

TABLE 2.—COVERAGE AND ELIGIBILITY

OF EMPLOYEES UNDER THE FAMILY

AND MEDICAL LEAVE ACT: 2000 

SURVEY

Percent of 

all 

employees 

Eligible Employees at FMLACovered Worksites ................ 61.7 

Non-eligible Employees at Covered Worksites ...................... 14.9 

Employees at Non-covered 

Worksites .............................. 23.3 

Source: Westat, ‘‘Balancing the Needs of 

Families and Employers,’’ at A–2–21. 

Does not sum to 100.0% due to rounding. 

The estimates of the number of 

workers covered and eligible for FMLA 

leave under the regulations 

administered by the Department were 

developed by multiplying the 123.3 

million wage and salary workers in 

private industry and state and local 

governments in 2005 by the percentage 

estimates in Table 2 above. 

TABLE 3.—NUMBER OF COVERED AND

ELIGIBLE EMPLOYEES UNDER THE

FAMILY AND MEDICAL LEAVE ACT IN

2005 

Millions of 

employees 

Employees at FMLA-Covered 

Worksites .............................. 94.4 

Eligible Employees at FMLACovered Worksites ................ 76.1 

Non-eligible Employees at 

FMLA Covered Worksites ..... 18.4 

Employees at Non-FMLA covered Worksites ...................... 28.7 

Source: U.S. DOL, ESA based upon 2005 

Current Population Survey and the 2000 

Westat Report. 

Does not sum to 123.3 million due to 

rounding. 

• The Department requests comment 

on the approach used here to estimate 

the number of FMLA eligible workers 

employed at covered worksites. The 

Department also requests that 

commenters submit alternative 

methodologies and other available data 

that could be used to refine these 

estimates. 

D. Number of Covered and Eligible 

FMLA Leave Takers 

According to the 2000 Westat Report, 

17.1 percent of covered and eligible 

employees took leave for a ‘‘covered 

reason.’’ 9 Applying this percentage to 

the 76.1 million eligible employees at 

covered worksites in Table 3 yields an 

estimate of 13.0 million workers who 

took leave that they reported was for 

reasons covered by the FMLA. However, 

13.0 million may be an upper-bound 

estimate in that it may over-estimate the 

number of covered and eligible workers 

who actually took FMLA leave because 

many of the ‘‘covered reason[s]’’ for 

leave may not rise to the level of a 

serious health condition. In fact, Westat 

cautioned ‘‘that the leave-takers 

discussed in this section [the one where 

the 17.1 percent estimate appears] did 

not necessarily take leave under the 

FMLA.’’ 10 Moreover, 33.6 percent of 

FMLA-covered establishments report 

that at least some of the time employees 

take leave for family and medical 

reasons, that leave is not counted as 

FMLA leave.11

The distinction between leave taken 

for family and medical reasons and 

leave that qualifies as FMLA leave is 

important. Only leave that qualifies as 

FMLA leave triggers the employee’s job 

protection rights and counts against the 

12 weeks of leave provided by the Act. 

In order to estimate the number of 

covered and eligible employees who 

took FMLA leave, additional analysis is 

necessary. 

According to the 2000 Westat 

employee survey, only 18.3 percent of 

covered and eligible workers who took 

leave that they reported was for reasons 

covered by the FMLA actually took 

FMLA leave.12 Applying this percentage 

to the 13.0 million covered and eligible 

workers who took leave that they 

reported was for reasons covered by the 

FMLA yields an estimate of 2.4 million 

workers who took FMLA leave in 

2005.13 However, 2.4 million may be a 

lower-bound estimate in that it may 

under-estimate the number of covered 

and eligible workers who actually took 

FMLA leave, because evidence exists 

that many workers are unaware that 

their leave qualified and that their 

employers may have designated their 

leave as FMLA leave.14


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also reported that they had never heard of the 

FMLA. 15Westat, ‘‘Balancing the Needs of Families and 

Employers,’’ at 3–14 to 3–15. 16This estimate is consistent with Westat’s 

estimate of ‘‘between 4.6 million and 6.1 million’’

based on the establishment survey. Westat, 

‘‘Balancing the Needs of Families and Employers,’’

at 3–14. 

17A recent survey of large companies found that 

9.5 percent of covered employees took FMLA leave 

compared to 8.9 percent for large employers in the 

2000 Westat establishment survey. See 

WorldatWork, FMLA Perspectives and Practices, 

April 2005, at 7, and Westat, ‘‘Balancing the Needs 

of Families and Employers,’’ Table 3.6, at 3–15. 

18Westat, ‘‘Balancing the Needs of Families and 

Employers,’’ Statement from Alexis M. Herman, 

Secretary of Labor. 

19 In the past few years, several press accounts 

reported that 50 million workers have taken 

advantage of FMLA leave since 1993 and have 

attributed this estimate to the Department. There is 

no Department estimate of 50 million workers 

having taken FMLA leave. While it might be 

possible to develop such an estimate by 

extrapolating from estimates in the 2000 Westat 

Report, such estimates would suffer from the same 

problems as those discussed above. 

20Westat, ‘‘Balancing the Needs of Families and 

Employers,’’ at 3–14 n. 25. 

21U.S. Department of Labor, Employment 

Standards Administration, estimate based on 

Westat’s 2000 FMLA Employee Survey data. 

22Those that answered yes to Question A5B of 

Westat’s employee questionnaire. 

23Westat, ‘‘Balancing the Needs of Families and 

Employers,’’ at xii. 

24 Id. at A–2–59. 

25 Id. 

26 Id. at 6–8. 

Because of the data limitations 

described above, the Department 

developed estimates of the number of 

covered and eligible employees who 

took FMLA leave based upon Westat’s 

2000 establishment survey rather than 

the employee survey. According to the 

2000 Westat Report’s establishment 

survey, 6.5 percent of employees in 

covered establishments took FMLA 

leave.15 Applying this percentage to the 

94.4 million workers employed at 

FMLA-covered establishments in 2005 

yields an estimate of 6.1 million covered 

and eligible employees who took FMLA 

leave in 2005.16 The Department notes 

that the results of the 2000 Westat 

establishment survey for large 

employers are consistent with the 

results of a recent WorldatWork 

survey.17

• The Department requests comments 

on the approach that was used to 

estimate the number of covered and 

eligible employees who took FMLA 

leave. The Department also requests that 

commenters submit alternative 

methodologies and other available data 

that could be used to refine the estimate. 

Although the Department previously 

estimated that ‘‘over 35 million covered 

and eligible workers have benefited 

from taking leave for family and medical 

reasons since 1993’’ (emphasis 

added),18 the Department is concerned 

that this estimate has been 

misinterpreted to be equivalent to the 

number of workers who actually took 

FMLA leave since 1993.19 This is not an 

accurate estimate of the number of 

workers who took FMLA leave. As 

noted above, there is an important 

difference between leave taken for 

reasons covered by the FMLA and leave 

actually qualified as FMLA leave. The 

two are not the same and it is important 

to differentiate the two in order to 

estimate the marginal impact of the 

FMLA itself, as opposed to estimating 

the impact of all sick leave policies in 

the workforce. In addition, as noted in 

the 2000 Westat Report, ‘‘establishments 

may double count persons that took 

more than one FMLA leave’’ during the 

18–20 month survey period that began 

in January 1999.20 Moreover, this 

double counting is even more likely to 

occur over the longer period that began 

in 1993 due to workers who have 

chronic conditions, more than one 

family member with a serious health 

condition, or multiple pregnancies or 

adoptions. After reviewing the 2000 

Westat Report, the Department has 

determined that the available data do 

not enable the accurate estimation of the 

total number of workers who took 

FMLA leave since 1993. 

• The Department requests that 

commenters submit alternative 

methodologies and other available data 

that could be used to develop this 

estimate given the data limitations and 

methodological issues in the 1995 and 

2000 FMLA reports. 

E. Estimated Number of Workers Taking 

Intermittent FMLA Leave 

Although the Westat surveys tended 

to focus on the longest leaves taken for 

family and medical reasons rather than 

the leaves taken intermittently, the 

Department believes that the report can 

be used to develop an estimate of the 

number of workers that use intermittent 

FMLA leave. Almost one-quarter (23.9 

percent) of covered and eligible workers 

who took FMLA leave reported taking 

their leave intermittently.21 That is, they 

repeatedly took leave for a few hours or 

days at a time because of ongoing family 

or medical reasons.22 Assuming that the 

23.9 percent estimate applies to leavetakers as well as leave (i.e., the 

intermittent leave is not concentrated in 

a small group of leave-takers), then 

about 1.5 million FMLA leave-takers 

(i.e., 23.9% of 6.1 million FMLA leavetakers) use intermittent leave in a year. 

• The Department requests comment 

on the approach that was used to 

estimate the number of FMLA eligible 

workers employed at covered worksites 

taking intermittent FMLA leave. The 

Department also requests that 

commenters submit alternative 

methodologies and other available data 

that could be used to refine this 

estimate. 

F. The Financial Impact of Intermittent 

FMLA Leave 

In the foreword to the 2000 Westat 

Report, the Department noted: 

Two-thirds of covered employers reported 

that, overall, complying with the Act was 

very or somewhat easy * * * The survey 

found that for most employers, intermittent 

leave had no impact on their business. 

Slightly more than 81 percent of employers 

said the use of intermittent leave had no 

impact on productivity and 94 percent said 

it had no impact on their profitability.23

However, because employers have 

reported that recurring unforeseen (i.e., 

unscheduled), intermittent FMLA leave 

is a problem, the Department has 

reexamined the estimates in the Westat 

Report. According to Table A2–6.13 of 

the Westat Report (presented below and 

renumbered as Table 4), 32.3 percent of 

establishments with over 250 employees 

reported a negative impact on 

productivity.24 Moreover, 17.4 percent 

of establishments with over 250 

employees reported a negative impact 

on profits.25 Additionally, ‘‘[a]cross the 

board, administrative issues are 

perceived to be more difficult in 2000 

than they were in 1995’’; 26


rmajette on PROD1PC67 with PROPOSALS1
Federal Register / Vol. 71, No. 231 / Friday, December 1, 2006 / Proposed Rules 69513 

27 Id. at 3–14. 

28 Id. at 2–10 n. 10. 

29U.S. Department of Labor, Employment 

Standards Administration estimate based on 2000 

FMLA Employee Survey data. 

TABLE 4.—THE IMPACT OF INTERMITTENT LEAVE TAKEN UNDER FMLA ON COVERED ESTABLISHMENTS BY SIZE: 2000 

SURVEY

Percent of covered establishments with: All covered 

establish1–250 em- ments 

ployees 

251+ employees 

Productivity: 

Large negative impact ...................................................................................................................... — 3.2% 0.5% 

Moderate negative impact ................................................................................................................ 12.0% 14.6% 12.2% 

Small negative impact** ................................................................................................................... 4.8% 14.5% 5.4% 

No impact* ........................................................................................................................................ 82.3% 65.7% 81.2% 

Small positive impact ........................................................................................................................ — — —

Moderate positive impact ................................................................................................................. — — —

Large positive impact ....................................................................................................................... & & & 

Profitability: 

Large negative impact** ................................................................................................................... — 1.2% 0.1% 

Moderate negative impact** ............................................................................................................. 1.5% 5.5% 1.7% 

Small negative impact** ................................................................................................................... 3.8% 10.7% 4.2% 

No impact** ....................................................................................................................................... 94.5% 81.7% 93.7% 

Small positive impact ........................................................................................................................ — — —

Moderate positive impact ................................................................................................................. & — —

Large positive impact ....................................................................................................................... & & & 

* Significant at p<.10, using a t-test. 

** Significant at p<.05, using a t-test. 

& Indicates no significance test was conducted because of zero cell. 

—Indicates less than 10 unweighted cases. 

Note: Column percents may not total to 100% due to rounding. 

Source: Westat, ‘‘Balancing the Needs of Families and Employers,’’ pg. A–2–59. 

A possible explanation of the differing 

impact of intermittent leave by 

establishment size may be that FMLA 

leave usage varies by establishment size. 

In fact, Westat found ‘‘Taking FMLA 

leave is apparently more frequent in 

larger establishments (8.9 leave-takers 

per 100 employees) than in smaller 

establishments (5.5 leave-takers per 100 

employees).’’27 Thus, the higher 

negative impacts reported by the larger 

firms (i.e., those with 251 or more 

employees) may be due to that fact that 

they have a higher percentage of 

employees taking FMLA leave than 

small firms (i.e., those with 50 to 250 

employees). 

• The Department also requests that 

commenters submit alternative 

information related to the different 

impacts that intermittent leave has on 

large employers compared to smaller 

employers. 

The definition of intermittent leave 

used in the 2000 Westat Report may also 

mask issues of concern. As Westat 

specifically noted, the employee survey 

defined intermittent leave as 

‘‘repeatedly tak[ing] leave for a few 

hours or days at a time because of 

ongoing family or medical reasons,’’ 28

whereas the regulations at 29 CFR 

825.203(a) define it as ‘‘leave taken in 

separate blocks of time due to a single 

qualifying reason.’’ (Emphasis added.) 

Finally, the Westat survey did not 

distinguish between unscheduled, 

intermittent leave and scheduled, 

intermittent leave. By including leaves 

that do not occur repeatedly (i.e., 2 or 

3 leaves in 18–20 months) in the 

surveys and by not asking questions 

about the impact of unscheduled, 

intermittent leave, the report may 

underestimate issues associated with 

frequent unscheduled, intermittent 

leaves of a day or less. 

• The Department also requests that 

commenters submit alternative 

information regarding any impact that 

recurring unforeseen, intermittent 

FMLA leave may have on covered 

employers. 

G. Estimated Number of Workers Taking 

Unforeseen, Intermittent FMLA Leave 

Although the Westat Report does not 

provide information on the portions of 

the intermittent leave that are 

foreseeable and unforeseeable, the 2000 

survey did provide some data that may 

be used as a rough ‘‘proxy.’’ Question 

A8a of the survey was ‘‘Did you take 

leave on a regular routine or as 

needed? ’’ and had two responses: 

‘‘Regular Routine’’ and ‘‘As Needed.’’ Of 

the employees who took intermittent 

FMLA leave for their longest leave, 45.4 

percent reported that they took it as 

needed.29 Assuming that all of the 

intermittent FMLA leave-takers who 

took unforeseeable leave answered ‘‘As 

Needed’’ to question A8a, then about 

700,000 workers (i.e., 45.4% of 1.5 

million) took unforeseen, intermittent 

FMLA leave. 

• The Department requests comment 

on the approach that was used to 

estimate the number of FMLA eligible 

workers employed at covered worksites 

taking unforeseen, intermittent FMLA 

leave. 

• The Department also requests that 

commenters submit alternative 

methodologies and other available data 

that could be used to refine this 

estimate. 

• The Department also requests 

comment on the prevalence, durations, 

and causes of intermittent leave. 

H. The Financial Impact of Unforeseen, 

Intermittent FMLA Leave 

Based upon the preceding analysis, 

less than one-percent (700,000 of the 

94.4 million) of the workers employed 

at FMLA covered establishments may be 

taking unforeseen, intermittent FMLA 

leave. If this estimate is accurate, it 

would seem to explain why most 

employers in the Westat survey reported 

that intermittent leave had little impact 

on productivity or profits. The 

temporary absence of less than 1 in 

about 135 workers probably would not 

have a significant impact on the overall 

efficiency of most employers’

operations. 


rmajette on PROD1PC67 with PROPOSALS1
69514 Federal Register / Vol. 71, No. 231 / Friday, December 1, 2006 / Proposed Rules 

30Mulvey, Janemarie, ‘‘The Cost and 

Characteristics of Family and Medical Leave,’’

Employment Policy Foundation Issue Backgrounder 

(Apr. 19, 2005). But see Institute for Women’s 

Policy Research, ‘‘Assessing the Family and 

Medical Leave Act: An Analysis of an Employment 

Policy Foundation Paper on Costs (June 29, 2005). 

31 Gardner, Harold H., Kleinman, Nathan L., and 

Butler, Richard J., Workers’ Compensation and 

Family and Medical Leave Act Claim Contagion, 

Journal of Risk and Uncertainty, Volume 20, Jan. 

2000, at 89–112. 

This does not preclude the possibility, 

however, that unforeseen, intermittent 

FMLA leave may be a significant 

problem for some employers. The 

unexpected absence of certain 

employees may create problems in the 

workplace. For example, an 

unannounced absence can cause other 

workers or equipment to be idled. An 

unannounced absence can result in lost 

business or performance penalties to be 

imposed upon the employer. It is 

noteworthy that the two industries with 

the highest FMLA costs in the 2004 

Employment Policy Foundation (‘‘EPF’’) 

survey were transportation (an industry 

which has performance penalties) and 

telecommunications (an industry where 

quality of service agreements are 

common).30 Anecdotal reports also 

indicate that some employers schedule 

extra workers for some positions to 

avoid the negative impacts of 

unforeseen, intermittent leave. 

• The Department also requests 

comment on the impact that 

unscheduled, intermittent leave has on 

productivity and profits. 

There is some indication that the use 

of unscheduled, intermittent FMLA 

leave is not evenly distributed across 

employers or even across the facilities of 

a given employer. Rather, it may be 

concentrated in some facilities and only 

becomes a problem for employers when 

the portion of workers taking 

unscheduled, intermittent FMLA leave 

in a given facility or operation exceeds 

some critical point. 

Some believe that the apparent 

concentration of workers taking 

unscheduled, intermittent FMLA leave 

may be due to poor management or 

other labor-relations problems. Others 

believe that as more and more workers 

in a particular facility take unscheduled 

leave, the likelihood that the remaining 

workers will become sick or injured and 

begin to take FMLA leave also increases. 

See, e.g., Workers’ Compensation and 

Family and Medical Leave Act Claim 

Contagion.31

• The Department requests that 

commenters submit information on the 

concentration of workers taking 

unscheduled, intermittent FMLA leave 

in specific industries and employers. 

• The Department requests that 

commenters submit information on the 

factors contributing to large portions of 

the work force in some facilities taking 

unscheduled, intermittent FMLA leave. 

Finally, the problems associated with 

employees taking unscheduled, 

intermittent FMLA leave may be related 

to the salaried or hourly-pay status of 

the employees. Anecdotal reports 

indicate that employers do not appear to 

have problems when workers who are 

salaried and exempt from the Fair Labor 

Standards Act (‘‘FLSA’’) under 29 CFR 

part 541 take small blocks of 

unscheduled, intermittent FMLA leave 

so long as these workers complete their 

work. In fact, some employers may not 

even record absences of a couple hours 

or less because of the scheduling 

flexibility typically afforded to salaried 

workers, and because the absences often 

have no impact on such workers’ pay or 

productivity. Employers report they 

have both administrative and 

production problems when non-exempt 

(typically hourly-paid) workers take 

unscheduled, intermittent FMLA leave, 

especially when these workers do not 

notify their employers that they are not 

coming to work at their scheduled 

reporting time. Unlike salaried 

employees, many non-exempt 

employees may not be paid when they 

take unscheduled, intermittent FMLA 

leave. 

• The Department requests that 

commenters submit information related 

to the different treatment of FLSA 

exempt and nonexempt employees 

taking unscheduled, intermittent FMLA 

leave. 

• The Department also requests 

information on the different impact the 

leave taking by FLSA exempt and 

nonexempt employees may have on the 

workers who are taking leave and their 

employers. 

I. Additional Questions Related to the 

Coverage Estimates and Their Impacts 

• The Department requests public 

comment on the estimates and the 

methodology used to produce these 

estimates, including any available 

information that can be used to improve 

the estimates of the impact that FMLA 

leave has on employers and employees. 

IV. Conclusion 

The Department invites interested 

parties having knowledge of the FMLA 

to submit comments and welcomes any 

pertinent information that will provide 

a basis for ascertaining the effectiveness 

of the current implementing regulations 

and the Department’s administration of 

the Act. The issues posed in this notice 

are not meant to be an exclusive list of 

issues for which the Department seeks 

commentary. 

Victoria A. Lipnic, 

Assistant Secretary for Employment 

Standards. 

Paul DeCamp, 

Administrator, Wage and Hour Division. 

[FR Doc. 06–9489 Filed 11–30–06; 8:45 am] 

BILLING CODE 4510–27–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[CGD05–06–104] 

RIN 1625–AA87 

Security Zone; Chesapeake Bay, 

Between Sandy Point and Kent Island, 

MD 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Coast Guard is proposing 

to establish a permanent security zone 

on the waters of the Chesapeake Bay, 

within 250 yards north of the north span 

and 250 yards south of the south span 

of the William P. Lane Jr. Memorial 

Bridge, located between Sandy Point 

and Kent Island, Maryland. This action 

is necessary to provide for the security 

of a large number of participants during 

the annual Bay Bridge Walk across the 

William P. Lane Jr. Memorial Bridge, 

held annually on the first Sunday in 

May. The security zone will allow for 

control of vessels or persons within a 

specified area of the Chesapeake Bay 

and safeguard the public at large. 

DATES: Comments and related material 

must reach the Coast Guard on or before 

March 1, 2007. 

ADDRESSES: You may mail comments 

and related material to Commander, 

Coast Guard Sector Baltimore, 2401 

Hawkins Point Road, Building 70, 

Waterways Management Division, 

Baltimore, Maryland 21226–1791. Coast 

Guard Sector Baltimore, Waterways 

Management Division, maintains the 

public docket for this rulemaking. 

Comments and material received from 

the public, as well as documents 

indicated in this preamble as being 

available in the docket, will become part 

of this docket and will be available for 

inspection or copying at Coast Guard 

Sector Baltimore, Waterways 

Management Division, between 8 a.m. 

and 3 p.m., Monday through Friday, 

except Federal holidays. 


rmajette on PROD1PC67 with PROPOSALS1