[Federal Register Volume 71, Number 231 (Friday, December 1, 2006)]
[Proposed Rules]
[Pages 69504-69514]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-9489]


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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.

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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

[[Page 69505]]

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 e-
mail to: <a href="/cdn-cgi/l/email-protection#cabda2aea9a5a7a7afa4beb98aaea5a6e4ada5bc"><span class="__cf_email__" data-cfemail="10677874737f7d7d757e646350747f7c3e777f66">[email protected]</span></a>. 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 twelve-month 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

[[Page 69506]]

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 Bank-Illinois, 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-

[[Page 69507]]

.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: Disability-Related 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\
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    \1\ Westat, ``Balancing the Needs of Families and Employers, 
Family and Medical Leave Surveys, 2000 Update,'' January 2001.
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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 co-workers 
(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.

[[Page 69508]]

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.
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    \2\ See the section on the coverage and usages estimates for the 
details of these estimates.
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    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

    <bullet> 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.
    <bullet> 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 non-consecutive 
periods of service for purposes of meeting the 12 months requirement in 
section 825.110.
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    \3\ The 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.
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    <bullet> 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?
    <bullet> 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).
    <bullet> 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

[[Page 69509]]

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''

    <bullet> 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)?
    <bullet> 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''

    <bullet> 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?
    <bullet> 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

    <bullet> 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?
    <bullet> Does the existence of paid leave policies affect the 
nature and type of FMLA leave used?
    <bullet> 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

    <bullet> 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

    <bullet> 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?
    <bullet> Are there differences in leave usage based on occupation, 
employee classification, or other factors?
    <bullet> 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?
    <bullet> 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?
    <bullet> 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?
    <bullet> Is there any evidence that employees are misusing FMLA 
leave? If so, how does this compare to other types of leave?
    <bullet> Is there any evidence of employers closing or relocating 
facilities as a result of employee leave patterns (either scheduled or 
unscheduled)?
    <bullet> Is there a way to appropriately balance employer absence 
control policies and legitimate employee use of unscheduled, 
intermittent leave?

G. Light Duty

    <bullet> 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

    <bullet> 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

    <bullet> 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

[[Page 69510]]

ability of employees to settle their past FMLA claims.
---------------------------------------------------------------------------

    \4\ The 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.
---------------------------------------------------------------------------

J. Communication Between Employers and Their Employees

    <bullet> 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.
    <bullet> 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?
    <bullet> 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?
    <bullet> 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?
    <bullet> 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

    <bullet> 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?
    <bullet> 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?
    <bullet> 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?
    <bullet> 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?
    <bullet> 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?
    <bullet> 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

    <bullet> How does the availability of FMLA leave affect employee 
morale and productivity?
    <bullet> 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.
---------------------------------------------------------------------------

    \5\ Westat, ``Balancing the Needs of Families and Employers.'' 
These methodological issues are footnoted in the report in a variety 
of places, particularly Appendix C.
---------------------------------------------------------------------------

    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.

[[Page 69511]]

All other things being equal, this would lead to a higher estimate of 
the total number of employed persons in the 2000 survey.'' \6\
---------------------------------------------------------------------------

    \6\ Westat, ``Balancing the Needs of Families and Employers,'' 
at C-12.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \7\ For 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.''
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \8\ Of the two major BLS employment surveys, the Current 
Population Survey was used because it covers agriculture, while the 
Current Employment Statistics survey does not.

    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         123.3
 Local Government*.........................................
------------------------------------------------------------------------
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 FMLA-Covered 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 FMLA-Covered 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.

    <bullet> 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\
---------------------------------------------------------------------------

    \9\ Westat, ``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.
    \11\ U.S. Department of Labor, Employment Standards 
Administration estimate based on Westat's 2000 FMLA Establishment 
Survey data.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \12\ Westat, ``Balancing the Needs of Families and Employers,'' 
at 3-14.
    \13\ This 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.
    \14\ According 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 also reported that they had 
never heard of the FMLA.

---------------------------------------------------------------------------

[[Page 69512]]

    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\
---------------------------------------------------------------------------

    \15\ Westat, ``Balancing the Needs of Families and Employers,'' 
at 3-14 to 3-15.
    \16\ This 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.
    \17\ A 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.
---------------------------------------------------------------------------

    <bullet> 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.
---------------------------------------------------------------------------

    \18\ Westat, ``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.
    \20\ Westat, ``Balancing the Needs of Families and Employers,'' 
at 3-14 n. 25.
---------------------------------------------------------------------------

    <bullet> 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 leave-takers 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 leave-takers) use intermittent leave in a 
year.
---------------------------------------------------------------------------

    \21\ U.S. Department of Labor, Employment Standards 
Administration, estimate based on Westat's 2000 FMLA Employee Survey 
data.
    \22\ Those that answered yes to Question A5B of Westat's 
employee questionnaire.
---------------------------------------------------------------------------

    <bullet> 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\

    \23\ Westat, ``Balancing the Needs of Families and Employers,'' 
at xii.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \24\ Id. at A-2-59.
    \25\ Id.
    \26\ Id. at 6-8.

[[Page 69513]]



 Table 4.--The Impact of Intermittent Leave Taken Under FMLA on Covered
                   Establishments by Size: 2000 Survey
------------------------------------------------------------------------
                                   Percent of covered
                                  establishments with:
                               --------------------------   All covered
                                   1-250         251+     establishments
                                 employees    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).
---------------------------------------------------------------------------

    \27\ Id. at 3-14.
---------------------------------------------------------------------------

    <bullet> 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.)
---------------------------------------------------------------------------

    \28\ Id. at 2-10 n. 10.
---------------------------------------------------------------------------

    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.
    <bullet> 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.
---------------------------------------------------------------------------

    \29\ U.S. Department of Labor, Employment Standards 
Administration estimate based on 2000 FMLA Employee Survey data.
---------------------------------------------------------------------------

    <bullet> 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.
    <bullet> The Department also requests that commenters submit 
alternative methodologies and other available data that could be used 
to refine this estimate.
    <bullet> 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.

[[Page 69514]]

    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.
---------------------------------------------------------------------------

    \30\ Mulvey, 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).
---------------------------------------------------------------------------

    <bullet> 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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    <bullet> The Department requests that commenters submit information 
on the concentration of workers taking unscheduled, intermittent FMLA 
leave in specific industries and employers.
    <bullet> 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.
    <bullet> The Department requests that commenters submit information 
related to the different treatment of FLSA exempt and nonexempt 
employees taking unscheduled, intermittent FMLA leave.
    <bullet> 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

    <bullet> 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


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