35550 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 

DEPARTMENT OF LABOR 

Employment Standards Administration 

Wage and Hour Division 

29 CFR Part 825 

RIN 1215–AB35 

Family and Medical Leave Act 

Regulations: A Report on the 

Department of Labor’s Request for 

Information 

AGENCY: Employment Standards 

Administration, Wage and Hour 

Division, Department of Labor. 

ACTION: Report on comments from the 

public. 

SUMMARY: The Department of Labor’s 

Employment Standards Administration/ 

Wage and Hour Division undertook a 

review of the Family and Medical Leave 

Act (‘‘FMLA’’ or the ‘‘Act’’) and its 

regulations, and published a Request for 

Information (‘‘RFI’’) in the Federal 

Register on December 1, 2006 (71 FR 

69504). The RFI asked the public to 

assist the Department by furnishing 

information about their experiences 

with the Act and comments on the 

effectiveness of the FMLA regulations. 

More than 15,000 comments were 

submitted in response to the RFI. The 

following report summarizes comments 

the Department received from its RFI. 

ADDRESSES: A complete copy of this 

report is also available at http:// 

www.dol.gov/esa/whd/ 

fmla2007report.htm. It may also be 

obtained by writing 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. 

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: 

Foreword 

No employment law matters more to 

America’s caregiving workforce than the 

Family and Medical Leave Act (FMLA) 

of 1993. Since its enactment, millions of 

American workers and their families 

have benefited from enhanced 

opportunities for job-protected leave 

upon the birth or adoption of a child, to 

deal with their own serious illness, and 

when needed to care for family 

members. 

After nearly fourteen years 

administering the law, two Department 

of Labor studies (1996, 2001) and 

several U.S. Supreme Court and lower 

court rulings, the Employment 

Standards Administration’s Wage and 

Hour Division issued a Request for 

Information (RFI) on December 1, 2006. 

The RFI asked the public to comment 

on their experiences with, and 

observations of, the Department’s 

administration of the law and the 

effectiveness of the regulations. More 

than 15,000 comments were received in 

the next few months from workers, 

family members, employers, academics, 

and other interested parties. This input 

ranged from personal accounts, legal 

reviews, industry and academic studies, 

surveys, and recommendations for 

regulatory and statutory changes to 

address particular areas of concern. 

There is broad consensus that family 

and medical leave is good for workers 

and their families, is in the public 

interest, and is good workplace policy. 

There are differing views on whether 

every provision of the law is being 

administered in accordance with the 

statute and with congressional intent. It 

is also evident from the comments that 

the FMLA has produced some 

unanticipated consequences in the 

workplace for both employees and 

employers. 

A report of this kind is a unique step. 

Normally, the organization of comments 

received in response to a Departmental 

Request for Information would first be 

seen accompanying proposed changes to 

the rules. There are no proposals for 

regulatory changes being put forward by 

the Department with this Report. Rather, 

what we hope this Report does is 

provide information for a fuller 

discussion among all interested parties 

and policymakers about how some of 

the key FMLA regulatory provisions and 

their interpretations have played out in 

the workplace. 

Finally, our thanks to the thousands 

of employees, employers, and other 

members of the public who participated 

in this information gathering by sharing 

their views, their research, and, in some 

cases, very personal comments. We 

greatly value those insights. 

Victoria A. Lipnic, 

Assistant Secretary of Labor, 

Employment Standards Administration. 

June 2007. 

Executive Summary 

The Family and Medical Leave Act of 

1993 (FMLA) opened a new era for 

American workers, providing employees 

with better opportunities to balance 

work and family needs. This landmark 

legislation provided workers with basic 

rights to job protection for absences due 

to the birth or adoption of a child or for 

a serious health condition of the worker 

or a family member. 

For women dealing with difficult 

pregnancies or deliveries, or parents 

celebrating the arrival of a newborn or 

adopted child, the FMLA provides the 

opportunity to participate fully in these 

significant life events. For other 

workers—especially those who struggle 

with health problems or who are 

primary caregivers to ill family 

members—the FMLA has made it 

possible to deal with these serious 

challenges while holding on to jobs, 

health insurance, and some measure of 

economic security. 

Background: 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. The twelve weeks of leave 

may be taken in a block, or, under 

certain circumstances, intermittently or 

on a reduced leave schedule. Id. When 

taken intermittently, the Department’s 

regulations provide that leave may be 

taken in the shortest increment of time 

the employer’s payroll system uses to 

account for absences or use of leave, 

provided it is one hour or less. 29 CFR 

825.203(d). 

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 of 

Labor (‘‘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 monetary loss 


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1Recent data submitted to the Department on the 

size and scope of the FMLA’s reach support these 

estimates. See Chapter XI of this Report. 

2Recent data submitted to the Department 

support this estimate as well. See Chapter XI of this 

Report. 

3 71 FR 69504. 

4All comments are available for viewing via the 

public docket of the Wage and Hour Division of the 

Employment Standards Administration, U.S. 

Department of Labor, 200 Constitution Avenue, 

NW., Washington, DC 20210. Many comments are 

also available on www.regulations.gov. The names 

of individual employees have been redacted from 

the Report where any personal medical information 

was shared. 

5See ‘‘Balancing the Needs of Families and 

Employers, Family and Medical Leave Surveys, 

2000 Update,’’ Westat Inc., January 2001. See also 

the description of the 2000 Westat Report in 

Chapter XI of this Report. See also 71 FR 69510. 

6The 2001 report may be found at: 

www.whitehouse.gov/omb/inforeg/ 

costbenefitreport.pdf, the 2002 report at: 

www.whitehouse.gov/omb/inforeg/ 

2002_report_to_congress.pdf, and the 2004 report 

at: www.whitehouse.gov/omb/inforeg/ 

2004_cb_final.pdf. 

7Many of these employee comments stated that 

there were no problems with FMLA and there 

should be no changes to the program. 

8Because comments on the need for expanded 

benefits concern matters outside the scope of the 

Department’s authority and the purposes of the RFI, 

these comments are not covered in any significant 

detail in this Report. 

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. 

Who the Law Covers 

The law generally covers employers 

with 50 or more employees, and 

employees must have worked for the 

employer for 12 months and have 1,250 

hours of service during the previous 

year to be eligible for leave. Based on 

2005 data, the latest year for which data 

was available the time the Request for 

Information was published, the 

Department estimates that: 

• There were an estimated 94.4 

million workers in establishments 

covered by the FMLA regulations, 

• There were about 76.1 million 

workers in covered establishments who 

met the FMLA’s requirements for 

eligibility,1 and 

• Between 8.0 percent and 17.1 

percent of covered and eligible workers 

(or between 6.1 million and 13.0 million 

workers) took FMLA leave in 2005.2

• Nearly one-quarter of all employees 

who took FMLA leave took at least some 

of it intermittently. 

Recent information submitted to the 

Department also suggests that FMLA 

awareness was higher in 2005 than in 

prior years. This information supports 

the Department’s estimate of increased 

FMLA usage since prior studies of 

FMLA. 

Request for Information and Prior 

FMLA Reports 

After nearly fourteen years of 

experience implementing and 

administering the new law, the 

Department’s Employment Standards 

Administration/Wage and Hour 

Division undertook a review of the 

FMLA regulations, culminating in the 

publication of a Request for Information 

(‘‘RFI’’) on December 1, 2006.3 The RFI 

asked the public to assist the 

Department by furnishing information 

about their experiences with FMLA and 

comments on the effectiveness of the 

current FMLA regulations. The RFI 

generated a very heavy public response: 

More than 15,000 comments were 

submitted, many of which were brief 

emails with very personal and, in some 

cases, very moving accounts from 

employees who had used family or 

medical leave; others were highlydetailed and substantive legal or 

economic analyses responding to the 

specific questions in the RFI and raising 

other complex issues.4

Twice before, the Department has 

published reports about the FMLA and 

its use. The statute established a 

bipartisan Commission on Family and 

Medical Leave to study family and 

medical leave policies. The Commission 

surveyed workers and employers in 

1995 and issued a report published by 

the Department in 1996, ‘‘A Workable 

Balance: Report to Congress on Family 

and Medical Leave Policies.’’ In 1999, 

the Department contracted with Westat, 

Inc. to update the employee and 

establishment surveys conducted in 

1995. The Department published that 

report, ‘‘Balancing the Needs of Families 

and Employers: Family and Medical 

Leave Surveys, 2000 Update’’ in January 

2001.5

Never before has the Department 

looked in such granular detail at the 

legal developments surrounding the 

FMLA and its implementing 

regulations, as well as the practical 

consequences of such in the workplace. 

The RFI’s questions and subject areas 

were derived from a series of 

stakeholder meetings the Department 

conducted in 2002–2003, a number of 

rulings of the U.S. Supreme Court and 

other federal courts, the Department’s 

own experience administering the law, 

information from Congressional 

hearings, and public comments filed 

with the Office of Management and 

Budget (OMB) as described by OMB in 

their three annual reports to Congress 

on the FMLA’s costs and benefits.6

Unlike the 2000 Westat Report, the 

Department’s Report on the RFI 

Comments is not an analysis or 

comparison of one set of survey data 

with another some years later. The RFI 

was not meant to be a substitute for 

survey research about the leave needs of 

the workforce and leave policies offered 

by employers. The record presented 

here is different than the previous two 

Departmental reports because the RFI 

was a very different kind of informationgathering tool than the two previous 

surveys. Given the differences in datagathering approaches, the depth with 

which the RFI looked at the regulations, 

and, of course, the self-selection bias by 

those who took the time to submit 

comments to the RFI, differences in the 

outcomes should be expected. Care 

must be taken to avoid improper 

comparisons of information collected in 

the RFI with data from the two surveys. 

General Overview of the Report 

Commenters consistently stated that 

the FMLA is generally working well—at 

least with respect to leave related to the 

birth or adoption of a child or for 

indisputably ‘‘serious’’ health 

conditions. Responses to the RFI 

substantiate that many employees and 

employers are not having noteworthy 

FMLA-related problems. However, 

employees often expressed a desire for 

a greater leave entitlement, while 

employers voiced concern about their 

ability to manage business operations 

and attendance control issues, 

particularly when unscheduled, 

intermittent leave is needed for chronic 

health conditions. Indeed, the 

overwhelming majority of comments 

submitted in response to the RFI 

addressed three primary topics: (1) 

Gratitude from employees who have 

used family and medical leave and 

descriptions of how it allowed them to 

balance their work and family care 

responsibilities, particularly when they 

had their own serious health condition 

or were needed to care for a family 

member; 7 (2) a desire for expanded 

benefits—e.g., to provide more time off, 

to provide paid benefits, and to cover 

additional family members; 8 and (3) 

frustration by employers about 

difficulties in maintaining necessary 

staffing levels and controlling 

attendance problems in their 

workplaces as a result of one particular 

issue—unscheduled intermittent leave 

used by employees who have chronic 

health conditions. 

Many employees offered powerful 

testimonials about the important role 

the FMLA has played in allowing them 

to continue working while addressing 

their own medical needs or family 

caregiving responsibilities. Chapter I, 


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9See 71 FR 69504. 

Employee Perspectives: Experiences in 

the Value of FMLA, is an important 

representative example of how 

meaningful the ability to use the Family 

and Medical Leave Act has been for 

employees. The Department could have 

written an entire report based simply on 

those comments. 

But, no regulatory scheme, 

particularly at the outset, is perfect. In 

1993, the FMLA was a brand-new 

employment standard and many of the 

concepts, particularly those that took 

effect in the final regulations, were 

borrowed from other areas of law or 

were completely new. Thus, it should 

come as no surprise that RFI 

commenters continued to debate some 

of the choices made by the Department 

as it sought to implement the statute in 

a manner consistent with Congressional 

intent. 

As is evident from both the RFI record 

and from many of the legal challenges 

to regulatory provisions over the years, 

the debate continues on whether the 

Department successfully implemented 

the statutory requirements and 

Congressional intent, or struck the right 

balance in all places. That debate is 

reflected in Chapters II–XI. In many 

instances, commenters expressed the 

view that a certain regulation was 

‘‘exactly what Congress intended,’’

while others said of the same regulation 

that ‘‘it could not possibly be what 

Congress intended.’’ Because of that, in 

order to provide context to the 

comments received, in many chapters 

legal background is provided and/or the 

evolution of a particular regulatory 

section is retraced through the 

rulemaking process. Indeed, many 

commenters did the same thing. While 

this is in some cases done in great 

detail, without that history it may be 

impossible to understand not just what 

suggestions are being offered, but why 

they are being offered. These historical 

summaries are not intended to endorse 

the legitimacy of any particular 

comment or suggestion. 

As explained in the RFI, some of the 

issues brought to the attention of the 

Department in various forums over the 

years are beyond the statutory authority 

of the Department to address.9

Nonetheless, many commenters 

provided suggestions for statutory 

changes to expand the FMLA. Among 

others, and in no particular order, were 

comments on: providing paid maternity 

leave, covering the care of additional 

family members (e.g., siblings), 

changing the 75-mile eligibility test, 

reducing the coverage threshold below 

50 employees, and providing coverage 

for part-time workers. Because these 

comments are beyond the Department’s 

authority to address, we do not detail 

them in the chapters that follow. 

Finally, this Report is not a catalogue 

of every comment received or every 

suggestion made about every part of the 

regulations. Nor is it a catalogue of 

every organization or group that 

submitted comments. We do believe 

that the comments selected for 

discussion are representative and the 

chapters that follow accurately reflect 

the record according to the most 

important subject matters presented—

many of which, but not all, follow and 

detail the subjects and questions asked 

in the RFI. The chapters are designed to 

explain the questions asked in the RFI, 

provide background on the law where 

needed, and detail the feedback about 

the FMLA and the Department’s 

implementation of it as raised in 

comments from employees and 

employers. 

Given the detailed presentations in 

many of the responses to the RFI, and 

when the comments are read and 

studied in the aggregate, certain 

observations about the record stand out. 

Those observations follow in this 

Executive Summary or are found in 

Chapter XI: ‘‘Data: FMLA Coverage, 

Usage, and Economic Impact’’. We 

believe the observations included in this 

Report are evident from a plain reading 

of the thousands of comments received 

from both employers and employees. 

The Department’s Observations 

Regarding the Comments 

The Department is pleased to observe 

that, in the vast majority of cases, the 

FMLA is working as intended. For 

example, the FMLA has succeeded in 

allowing working parents to take leave 

for the birth or adoption of a child, and 

in allowing employees to care for family 

members with serious health 

conditions. The FMLA also appears to 

work well when employees require 

block or foreseeable intermittent leave 

because of their own truly serious 

health condition. Absent the protections 

of the FMLA, many of these workers 

might not otherwise be permitted to be 

absent from their jobs when they need 

to be. 

At the same time, a central defining 

theme in the comments involves an area 

that may not have been fully 

anticipated: The prevalence with which 

unscheduled intermittent FMLA leave 

would be taken in certain workplaces or 

work settings by individuals who have 

chronic health conditions. This is the 

single most serious area of friction 

between employers and employees 

seeking to use FMLA leave. The 

Department is cognizant that certain of 

its regulatory decisions and 

interpretations may have contributed to 

this situation. 

Certain types of industries and 

worksites and their workers appear to be 

more impacted by unscheduled 

intermittent FMLA leave-taking than 

others and there is considerable tension 

between employers and employees over 

the use of this leave. The Department 

heard, in particular, from employers, 

and from the representatives of 

employees who work with them, whose 

business operations have a highly timesensitive component, e.g., delivery, 

transportation, transit, 

telecommunications, health care, 

assembly-line manufacturing, and 

public safety sectors. 

While many employer comments used 

the words ‘‘abuse’’ and ‘‘misuse’’ to 

describe employee use of unscheduled 

intermittent leave, the Department 

cannot assess from the record how 

much leave taking is actual ‘‘abuse’’ and 

how much is legitimate. In some cases, 

the use of unscheduled intermittent 

leave appears to be causing a backlash 

by employers who are looking for every 

means possible (e.g., repeatedly asking 

for more information in the medical 

certifications, especially in cases of 

chronic conditions) to reduce 

absenteeism. 

Another area that generated 

significant comments is the current 

medical certification process. The 

Department recognizes that 

communication about medical 

conditions is essential to the smooth 

functioning of the FMLA in workplaces. 

However, none of the parties involved 

with the medical certification process—

employers, employees, and health care 

providers—are happy with the current 

system. Employees are concerned about 

the time and cost of visits to health care 

providers to obtain medical 

certifications and the potential for 

invasion of their privacy. Employers, 

especially when it comes to intermittent 

leave use, seek predictability in 

attendance and are frustrated with 

medical certifications that do not 

provide meaningful guidance. Health 

care providers complain they cannot 

predict how many times a flare-up of a 

particular condition will occur. 

Despite much work by the 

Department, it also appears that many 

employees still do not fully understand 

their rights under the law, or the 

procedures they must follow when 

seeking FMLA leave. For example, 

many employees are misinformed about 

the fact that paid leave can be 

substituted for, and run concurrently 

with, an employee’s FMLA leave. Even 


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10 ‘‘Equitable estoppel’’ is a legal bar that prevents 

one person from taking advantage of a second 

person where the second party is injured by 

reasonably relying on the misrepresentations (or 

silence when there is a duty to speak) of the first 

person. 

among employees who possess a general 

awareness of the law, many do not 

know how the FMLA applies to their 

individual circumstances. In turn, this 

failure in understanding may be 

contributing to some of the problems 

identified with the medical certification 

process, and with employers’ ability to 

properly designate and administer 

FMLA leave. It is clear the Department 

has more work to do to further educate 

employees and employers regarding 

their rights and responsibilities under 

the law. 

Summary of Chapters I–XI 

Employee Perspective: Experiences in 

the Value of the FMLA (Chapter I) 

Chapter I provides a representative 

sampling of comments received by the 

Department regarding the ‘‘value’’

FMLA provides to employees. In 

general, employees commented they 

were very happy to have the protections 

afforded by the FMLA. Many 

commented that the Act prevented job 

loss, allowed them to spend time with 

sick or injured family members, and, 

upon returning to work, encouraged a 

greater sense of loyalty to their 

employer. Some pointed out that their 

employers went above and beyond what 

is required by the law. Many employers 

also submitted comments that outlined 

advantages to complying with the 

FMLA and offering benefits beyond 

what the law requires. 

The value of the FMLA was 

particularly noted by employees caring 

for both children and parents with 

serious health conditions; this 

observation was supported by employer 

comments, many of whom noted that 

they increasingly receive FMLA leave 

requests from employees with elder care 

responsibilities. Many employees 

commented that the FMLA would be 

more useful if it provided paid leave, if 

more time off was available, and if the 

program covered more types of family 

members, such as siblings, 

grandparents, etc. 

Ragsdale Decision/Penalties (Chapter II) 

This chapter discusses the impact of 

the Supreme Court’s decision in 

Ragsdale v. Wolverine World Wide, Inc. 

on the FMLA implementing regulations. 

Ragsdale invalidated the ‘‘categorical 

penalty’’ in section 825.700(a) of the 

regulations, which provides that if an 

employer does not designate an 

employee’s leave as FMLA leave, it may 

not count that leave against an 

employee’s leave entitlement. Other 

courts have struck down similar 

‘‘categorical penalty’’ rules in sections 

825.110(d) (relating to deeming an 

employee eligible for leave) and 

825.208(c) (relating to designation of 

paid leave). Since Ragsdale, many 

courts have applied equitable 

estoppel 10 principles when employers 

either fail to communicate required 

information or communicate incorrect 

information. 

Employers commented that all 

categorical penalties should be removed 

from the regulations and that employers 

should be permitted to designate leave 

as FMLA leave retroactively. Some 

employers suggested that any penalty 

should be tailored to the specific harm 

suffered by the employee or suggested 

situations in which no penalty would be 

appropriate. Employees supported the 

current notice and designation 

requirements in the Department’s 

regulations, with many noting that they 

suffer hardships when they do not know 

promptly whether the employer believes 

they are entitled to FMLA-protected 

leave. Some employee commenters 

suggested that employers be required to 

provide annual notices to employees 

regarding their FMLA eligibility status 

and periodic reports regarding any 

FMLA leave used. Employers expressed 

concerns that without some clarification 

they are unsure of their liabilities for 

failure to follow the notification 

requirements. Both groups expressed a 

need for the Department to clarify the 

impact of Ragsdale on the notification 

requirements in the current regulations. 

Serious Health Condition (Chapter III) 

The Department received many 

comments on the regulatory definition 

of serious health condition relating to a 

period of incapacity of more than three 

consecutive calendar days and 

treatment two or more times by a health 

care provider (sometimes called the 

‘‘objective test’’) contained at 29 CFR 

825.114(a)(2)(i) and its interaction with 

29 CFR 825.114(c) (which provides 

examples of conditions that ordinarily 

are not covered). Chapter III summarizes 

these comments. Many of these 

comments echoed (or had their origins 

in) earlier comments to the record the 

Department received in 1993 when 

promulgating its current regulations. 

The Department received many 

comments from employees and 

employee groups who believe that the 

objective test is a good, clear test that is 

serving its intended purpose, consistent 

with the legislative history, while a 

common theme from many employers 

was that the regulatory definition of 

serious health condition is vague and/or 

confusing. Moreover, comments from 

employer groups complained that there 

is no real requirement that a health 

condition be ‘‘serious’’ in the regulatory 

definition of serious health condition. 

Many employee representatives felt 

section 825.114(c) imposes no 

independent limitation on the definition 

of serious health condition and 

therefore need not be changed. Other 

commenters took the very opposite 

tack—that the objective test 

extinguished Congress’ intent to exclude 

minor illnesses and that the Department 

should breathe life into subsection (c) 

by making it more of a per se rule, as 

it was initially interpreted by Wage and 

Hour Opinion Letter FMLA–57 (Apr. 7, 

1995). 

Some employers offered to give 

meaning to subsection (c) by changing 

the period of incapacity in the objective 

test from ‘‘calendar’’ days to ‘‘business’’

days. Still other commenters suggested 

that the Department maintain the 

substantive language of both regulatory 

sections but explicitly adopt a recent 

court interpretation of the regulations 

that the ‘‘treatment two or more times 

by a health care provider’’ in section 

825.114(a)(2)(i)(A) must occur during 

the period of ‘‘more than three days’’

incapacity. Some commenters suggested 

reconciling the two regulatory 

provisions by simply tightening the 

requirements for qualifying for a serious 

health condition under the objective test 

(e.g., increasing the number of days of 

incapacity required). 

Unscheduled Intermittent Leave 

(Chapter IV) 

Chapter IV of the Report discusses the 

use of unscheduled intermittent leave 

under FMLA. Based on the comments 

received, unscheduled intermittent 

FMLA leave is crucial to employees 

with chronic serious health conditions 

resulting in sudden, unpredictable flareups. Conversely, it is precisely the use 

of unscheduled (or unforeseeable) 

intermittent leave for chronic conditions 

that presents the most serious 

difficulties for many employers in terms 

of scheduling, attendance, productivity, 

morale, and other concerns. With 

respect to employer comments, no other 

FMLA issue even comes close. 

The Act itself does not provide a 

definition of ‘‘chronic’’ serious health 

conditions. During the 1993–1995 

notice-and-comment rulemaking phase, 

the Department filled in this gap, as the 

regulatory definition of ‘‘serious health 

condition’’ evolved in response to 

public comments urging that this 


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11See Wage and Hour Opinion Letter FMLA–101 

(Jan. 15, 1999). 

12 42 U.S.C. 12101–12117, 12201–12213. 

13S. Rep. No. 3, 103d Cong., 1st Sess. 38 (1993). 

definition specifically cover chronic 

conditions. 

Regarding intermittent leave, the Act 

provides for the taking of leave in small 

blocks, or intermittently, but does not 

specify the minimum increment. 29 

U.S.C. 2612(b)(1). In its regulations, the 

Department rejected any minimum 

limitations on intermittent leave, citing 

the statute, and stating a concern that 

such limits would cause employees to 

take leave in greater amounts than 

necessary, and thus erode a worker’s 12- 

week leave entitlement. 60 FR 2236. The 

Department also predicted initially that 

incidents of unscheduled intermittent 

leave would be unusual. 58 FR 31801. 

The Act sets out a clear, 30-day notice 

requirement for leave that is foreseeable, 

but for leave foreseeable less than 30 

days in advance, the Act has a less clear, 

‘‘as soon as practicable’’ notice 

requirement. 29 U.S.C. 2612(e)(2)(B). 

The Department, through its interpretive 

actions, has defined ‘‘as soon as 

practicable’’ to mean two working days 

after the need for leave becomes 

known.11

Fourteen years later, the comments 

indicate that unscheduled intermittent 

FMLA leave for chronic conditions has 

become commonplace and it is difficult 

for employers to determine or monitor 

employees’ incapacity when the chronic 

condition does not involve any active, 

direct treatment or care by a health care 

provider (i.e., self-treatment by 

employees with chronic conditions such 

as asthma, diabetes, migraine 

headaches, and chronic back pain). Employers expressed frustration about 

what they perceive to be employees’

ability to avoid promptly alerting their 

employers of their need to take 

unscheduled leave in situations when it 

is clearly practicable for them to do so. 

A common example cited by employers 

involves ignoring mandatory shift callin procedures even when the employee 

is fully able to comply, and then later 

reporting the absence as FMLAqualifying after-the-fact. Thus, some 

employers allege, employees may use 

FMLA: (1) As a pretext for tardiness or 

to leave work early for reasons unrelated 

to a serious health condition, (2) to 

obtain a preferred shift instead of the 

one assigned by the employer, or (3) to 

convert a full-time position to a 

permanent part-time one. These 

employers believe the Department’s 

regulatory interpretations have 

exacerbated this situation. 

Other commenters said that when an 

employer is unable to verify that an 

employee’s unscheduled absence is in 

fact caused by a chronic serious health 

condition, and the employer cannot 

seek additional medical verification of 

the need for the absence, the employer 

cannot distinguish between employees 

who legitimately need FMLA leave and 

employees who misuse the protections 

of FMLA to excuse an otherwise 

unexcused absence from work. 

Notice: Employee Rights and 

Responsibilities (Chapter V) 

Chapter V of the Report summarizes 

comments received regarding the FMLA 

rights and responsibilities of employees. 

The comments to the RFI indicate that 

many employees are not knowledgeable 

about their rights and responsibilities 

under the FMLA. Even among 

employees who possess a general 

awareness of the law, many do not 

know how the FMLA applies to their 

individual circumstances. This reported 

lack of employee awareness may 

contribute to frustrations voiced by the 

employer community concerning 

employee notice of the need for FMLA 

leave. Employers and their 

representatives commented on 

employees not providing notice of the 

need for leave in a timely fashion and 

receiving notice without sufficient 

information to make a determination as 

to whether or not the leave is FMLAqualifying. 

The Medical Certification and 

Verification Process (Chapter VI) 

The Department received significant 

comments regarding the FMLA medical 

certification process. These comments 

are discussed in Chapter VI. Generally 

speaking, all parties involved in the 

certification process—employees, 

employers and health care providers—

believed the current process needs to be 

improved. Many employers commented that they 

are frustrated with certifications that do 

not provide meaningful guidance 

regarding the employee’s expected use 

of intermittent leave. They also noted 

that the current regulatory framework 

provides them with limited options for 

verifying that employees are using 

FMLA leave for legitimate reasons. 

Employers also stated they want to be 

able to talk directly with the employee’s 

health care provider (without using a 

health care provider of their own) and 

feel that greater communication would 

allow decisions regarding FMLA 

coverage to be made more quickly. Employees commented that 

employers are not using the existing 

FMLA procedures appropriately to 

challenge medical certifications and are 

instead simply refusing to accept 

certifications without seeking 

clarification or a second opinion. Some 

employees also claimed that their use of 

unscheduled intermittent leave for 

chronic conditions seems to be causing 

a backlash among some employers who 

refuse FMLA coverage for any absences 

that exceed what is on the medical 

certification. Employees also expressed 

concern that increased communication 

between the employer and their health 

care providers could lead to an erosion 

of their right to medical confidentiality. 

Finally, although the certification 

requirement calls for an estimate of the 

expected use of intermittent leave, 

health care providers commented that 

often there is no way they can furnish 

a reliable estimate of the frequency or 

severity of the flare ups and thus are 

unable to provide all the information 

required in the certification. Based on 

the comments received, employers, 

employees and health care providers 

almost universally believe the 

Department’s model certification form 

WH–380 could be improved. 

Interplay Between the FMLA and the 

Americans with Disabilities Act 

(Chapter VII) 

A number of commenters discussed 

the relationship between the FMLA and 

the Americans with Disabilities Act 

(‘‘ADA’’).12 Although the ADA also may 

provide employees with job-protected 

medical leave, the legislative history of 

the FMLA indicates that Congress 

intended for ‘‘the leave provisions of the 

[FMLA to be] * ** wholly distinct from 

the reasonable accommodation 

obligations of employers covered under 

the [ADA].’’ 13 Nonetheless, the 

Department borrowed several important 

concepts from the ADA when finalizing 

the FMLA regulations. The practical 

realities of the workplace also mean that 

employee requests for medical leave 

often are covered by both statutes, thus 

requiring employers to consider 

carefully the rights and responsibilities 

imposed by each statute. Chapter VII 

summarizes the comments received by 

the Department regarding the interplay 

between FMLA and ADA. 

Almost uniformly, employers and 

their representatives urged the 

Department to consider implementing 

more consistent procedures for handling 

and approving medical leave requests 

under the FMLA and ADA. These 

commenters argued that, in many 

instances—but particularly with respect 

to obtaining medical information—the 

ADA and its implementing regulations 

provided a ‘‘much better model’’ and 

struck a more appropriate balance 

between an employee’s right to take 


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14 29 U.S.C. 2612(d). 

reasonable leave for medical reasons 

and the legitimate interests of 

employers. Many of these commenters 

cited their own experience in 

administering the ADA as support for 

the idea that additional limits imposed 

by the FMLA were unnecessary, 

particularly because both statutes 

require employers to review similar 

types of medical information and make 

determinations about an employee’s 

ability to work based on that 

information. These commenters also 

noted that, in many instances, the same 

human resources person reviews an 

employee’s absences under both 

statutes, thus further blurring the line 

between what an employer could 

permissibly do under each statute. 

Other commenters, including unions 

and other employee groups, argued that 

the differences between the two 

statutory schemes were a direct result of 

the distinctively different purposes of 

each law. These commenters noted that 

the ADA is intended to ensure that 

qualified individuals with disabilities 

are provided with equal opportunity to 

work, while the FMLA’s purpose is to 

provide reasonable leave from work for 

eligible employees. These commenters 

generally opposed implementing 

procedures they viewed as placing 

additional limits on the availability of 

FMLA leave, or increasing requirements 

under the FMLA medical certification 

process. 

Transfer to an Alternative Position 

(Chapter VIII) 

The RFI did not specifically ask any 

questions about an employer’s ability to 

transfer an employee to an ‘‘alternative 

position’’ but the Department received 

many comments on this topic. These 

comments are discussed in Chapter VIII 

of the Report. Under the FMLA, an 

employer may transfer an employee to 

an ‘‘alternative position’’ with 

equivalent pay and benefits when the 

employee needs to take intermittent or 

reduced schedule leave ‘‘that is 

foreseeable based on planned medical 

treatment[.]’’ 29 U.S.C. 2612(b)(2). 

Section 825.204 of the regulations 

explains more fully when an employer 

may transfer an employee to an 

alternative position in order to 

accommodate foreseeable intermittent 

leave or a reduced leave schedule. 

A significant number of employer 

commenters questioned why the 

regulations only permit an employer to 

transfer an employee when the 

employee’s need for leave is foreseeable 

based on planned medical treatment as 

opposed to a chronic need for 

unforeseeable (unscheduled) leave. 

Many commenters saw no practical 

basis for differentiating between 

foreseeable and unforeseeable need for 

leave in this context. In fact, many 

employers reported that the underlying 

rationale for the transfer provision—to 

provide ‘‘greater staffing flexibility’’

while maintaining the employee’s same 

pay and benefits—is best served where 

the employee’s need for leave is 

unforeseeable. 

Substitution of Paid Leave (Chapter IX) 

Chapter IX of the Report summarizes 

comments regarding the substitution of 

paid leave for unpaid FMLA leave. 

Under the statute, employees may 

substitute accrued paid leave for FMLA 

leave under certain circumstances. If 

employees forego the option to 

substitute paid leave, employers may 

then require such substitution.14 The 

legislative history indicates that 

Congress had two purposes in providing 

for the substitution of accrued paid 

leave for unpaid FMLA leave. First, 

Congress sought to clarify that where 

employers provided paid leave for 

FMLA-covered reasons, they were only 

required to provide a total of 12 weeks 

of FMLA-protected leave including the 

period of paid leave (i.e., employees 

could not stack 12 weeks of unpaid 

FMLA leave on top of any accrued paid 

leave provided by the employer). The 

second purpose of substitution of paid 

leave was to mitigate the financial 

impact of income loss to the employee 

due to family or medical leave. 

A major concern of the employer 

commenters was that when employees 

substitute paid vacation or personal 

leave for unpaid FMLA leave, they are 

able to circumvent certain aspects of 

employers’ existing paid leave policies, 

such as notification requirements, 

minimum increments of leave, seniority, 

or time of year restrictions. These 

commenters stated that employees 

substituting such paid leave for unpaid 

FMLA leave are, therefore, treated more 

favorably than those employees who use 

their accrued leave for other reasons. 

Employee commenters noted that the 

ability to substitute paid leave is a 

critical factor in their ability to utilize 

their FMLA entitlements, because many 

employees simply cannot afford to take 

unpaid leave. 

The comments also identified a 

number of other issues affected by 

substitution of paid leave. For example, 

employers questioned the wisdom of the 

regulation forbidding substitution if 

employees are receiving payments from 

a benefit plan such as workers’

compensation or short-term disability 

plans. On the other hand, employees 

commented that they are improperly 

required by employers to substitute paid 

leave, despite contrary language in 

existing collective bargaining 

agreements providing employees with 

the right to decide when to use their 

leave. 

Joint Employment (Chapter X) 

Chapter X of the Report discusses 

comments regarding employer coverage 

under FMLA in cases in which a 

company utilizes the services of a 

Professional Employer Organization 

(PEO). Unlike a staffing or placement 

agency, PEOs generally are service 

providers that handle payroll and other 

human resource work for the employer 

and which, under the current 

regulations, may qualify in some 

circumstances as a primary employer in 

a joint employment arrangement. 

The comments indicated that PEOs 

generally are not responsible for 

employment decisions like hiring, 

firing, supervision, etc. All of the 

comments in this area supported the 

view that the primary ‘‘employer’’ in 

these cases should be the client 

company that actually hires and uses 

the employees who are provided benefit 

services by the PEO. Thus, according to 

these comments, the client company, 

and not the PEO, should be responsible 

for the placement of employees 

returning from FMLA leave. 

Data: FMLA Coverage, Usage, and 

Economic Impact (Chapter XI) 

The Department received a significant 

number of comments on the usage and 

impact of the FMLA, including a variety 

of national surveys and numerous data 

on FMLA leave from individual 

companies or government and quasigovernment agencies. This information, 

when supplemented by the data from 

the 2000 Westat Report (and despite its 

limitations), provides considerable 

insight and a far more detailed picture 

of the workings of the FMLA, and the 

impact of intermittent leave, in 

particular. Chapter XI of this Report 

provides a full discussion of the data 

received. 

Several themes arose out of the data 

comments submitted in response to the 

RFI: 

• The benefits of FMLA leave include 

retaining valuable human capital; 

having more productive employees at 

work; lower long-run health care costs; 

lower turnover costs; lower 

presenteeism costs; and lower public 

assistance costs. 

• There are unquantifiable impacts on 

both sides. On the benefit side, the 

value of FMLA leave is often 

immeasurable. On the cost side, there 


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can be a negative impact on customers 

and the public when workers do not 

show up for their shifts on time. 

• A significant number of workers, 

especially for some facilities or 

workgroups, have medical certifications 

on file for chronic health conditions, 

and the number is increasing. 

• Unscheduled intermittent FMLA 

leave causes staffing problems for 

employers requiring them to overstaff 

some positions and use mandatory 

overtime to cover other positions. Both 

of these increase costs and prices. 

• The lack of employee notification 

can cause some positions to go 

temporarily understaffed resulting in 

service or production delays. This not 

only increases costs in the short run but 

also may potentially impact future 

business. 

• Unscheduled intermittent FMLA 

leave can adversely impact the 

workplace in a variety of ways, 

including missed holidays and time-off 

for other employees, lower morale, and 

added stress that can result in health 

problems. 

Further, it appears that the 

Department’s intermittent FMLA leave 

estimates presented in the RFI—that 

about 1.5 million workers took 

intermittent FMLA leave in 2005, and 

that about 700,000 of these workers took 

unscheduled intermittent FMLA leave—

may be too low. 

While the percentage of FMLA 

covered and eligible workers who take 

FMLA leave may appear to be low 

relative to the total workforce and the 

percentage who take unscheduled 

intermittent leave may appear to be 

even smaller, the record shows that 

these workers can have a significant 

impact on the operations of their 

employers and their workplaces for a 

variety of reasons. First, as a number of 

commenters pointed out, these workers 

can repeatedly take unscheduled 

intermittent leave, over nine hours per 

week, and still not exhaust their 

allocation of FMLA leave for the year 

(generally, 12 weeks × 40 hours/week = 

480 hours). Second, the record reveals 

that workplaces with time-sensitive 

operations, such as assembly-line 

manufacturing, transportation, transit, 

and public health and safety 

occupations can be disproportionably 

impacted by just a few employees who 

repeatedly take unscheduled 

intermittent leave. Third, the comments 

indicate that if the morale or health of 

workers covering for the absent 

employees on FMLA leave begins to 

suffer, either because they believe the 

absent workers are misusing 

unscheduled intermittent leave or from 

the stress caused by an increased 

workload, these workers may in turn 

seek and need their own FMLA 

certifications causing a ripple effect in 

attendance and productivity. 

Finally, the data indicate that if 

unscheduled intermittent FMLA leave is 

taken, most employers will be able to 

resolve these infrequent low cost events 

on a case-by-case basis by using the 

existing workforce (or possibly bringing 

in temporary help) to cover for the 

absent worker, and likely will view 

unscheduled intermittent FMLA leave 

as an expected cost of business. On the 

other hand, for those establishments and 

workgroups with a high probability 

(rate) of unscheduled intermittent leave 

and where the cost of such leave is high, 

the comments suggest that none of the 

measures that are typically used to 

reduce the risk and costs associated 

with unscheduled intermittent FMLA 

leave appear to work very well. These 

establishments, whose risk management 

systems (e.g., absence control policies, 

overstaffing, mandatory overtime) 

appear to be overwhelmed, are likely 

the employers reporting that 

intermittent FMLA leave has a moderate 

to large negative impact on their 

productivity and profits (1.8 to 12.7 

percent of establishments according to 

the 2000 Westat Report). In addition, 

many of the traditional methods used to 

encourage good attendance or control 

absenteeism (e.g., perfect attendance 

awards or no fault attendance polices) 

may not be used if they interfere with 

FMLA protected leave. These employers 

may try to make it more difficult for 

their workers to take unscheduled 

intermittent FMLA leave by repeatedly 

questioning the medical certifications or 

asking for recertifications—creating 

tension in the workplace. 

Conclusion 

In those sections of the FMLA dealing 

with leave for the birth of a child, for 

the adoption of a child, and associated 

with health conditions that require 

blocks of leave and are undeniably 

‘‘serious’’ (e.g., cancer, Alzheimer’s, 

heart attack), the law appears to be 

working as anticipated and intended, 

and working very successfully. When 

addressing these areas, there is near 

unanimity in the comments—FMLA 

leave is a valuable benefit to the 

employee, improves employee morale, 

improves the lives of America’s 

families, and, as a result, benefits 

employers. These aspects of the FMLA 

are fully supported by workers and their 

employers. 

But to the extent that the use of FMLA 

leave has continued to increase in 

unanticipated ways, primarily in the 

area of intermittent leave taken as selftreatment for chronic serious health 

conditions, the Department has heard 

significant concerns. These 

unanticipated facets of the FMLA are 

the source of considerable friction in the 

following areas: 

• How serious is ‘‘serious’’? 

• What does ‘‘intermittent’’ leave 

mean and how long should it go on? 

• What are the rules surrounding 

unforeseeable leave? 

• How much information can an 

employer require before approving 

leave? 

• What are an employee’s 

responsibilities under the Act? 

• What workplace rules may an 

employer actually enforce? 

• How has other legislation, 

including the ADA and HIPAA, affected 

the FMLA? 

Absent the protections of the FMLA, 

many workers with chronic conditions 

might not otherwise be permitted to be 

absent from their jobs. This is 

unquestionably a valuable right. But it 

is precisely the use of FMLA leave by 

a subset of these workers—those seeking 

unscheduled intermittent leave for a 

chronic condition—that appears to 

present the most serious difficulties for 

many employers in terms of scheduling, 

attendance, productivity, morale, and 

other concerns. As was clear from the 

record, these comments are not 

inconsistent with each other. These 

things are true at the same time. 

The success of the FMLA depends on 

smooth communication among all 

parties. To the extent that employees 

and employers become more adversarial 

in their dealings with each other over 

the use of FMLA leave, it may become 

harder for workers to take leave when 

they need it most. 

The Department hopes that this 

Report will further the discussion of 

these important issues and is grateful to 

all who participated in this informationgathering process. 

I. Employee Perspective: Experiences in 

the Value of the FMLA 

The chapters that follow in this 

Report deal in large part with the 

substantive comments from individual 

employers and employees, law firms, 

and groups representing employers and 

employees, assessing what works or 

does not work particularly well with 

specific regulatory sections of the 

FMLA. Because of that, it is easy to lose 

perspective about the overall value of 

the workplace protections provided by 

the Act. That value is best shown in the 

comments submitted by individual 

employees and, in some instances their 

employers or representatives. While it 

would be impossible for the Department 


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1The Request for Information can be found at 71 

FR 69,508 (December 1, 2006). 

2The names of individual employees have been 

redacted from the Report where any personal or 

medical information was provided. 

to catalog every comment it received in 

response to the Request for Information 

(‘‘RFI’’) about the value of the FMLA, 

this chapter provides a representative 

collection of comments recounting those 

personal experiences.1 These comments 

also include some examples of best 

practices of employers in carrying out 

the FMLA—practices that often create or 

strengthen good relationships between 

employers and employees. These 

comments reflect the belief stated in the 

regulations that a ‘‘direct correlation 

exists between stability in the family 

and productivity in the workplace’’ and 

demonstrate that the underlying intent 

of the Act ‘‘to allow employees to 

balance their work and family life by 

taking reasonable unpaid leave’’ for 

certain qualifying family and medical 

reasons is being fulfilled. 29 CFR 

825.101. 

Many employees were grateful that 

the Act existed and that they were able 

to utilize the leave entitlement in a time 

of need. Some employees specifically 

commented that the Act helped them 

during difficult periods of caring for 

loved ones who were ill. For example, 

one employee wrote that she used 

FMLA leave twice, once to care for a 

seriously ill child and again ‘‘when my 

husband was injured in Afghanistan and 

needed assistance in his recovery[.]’’ An 

Employee Comment, Doc. 2666, at 1.2

She noted that ‘‘without this [FMLA] 

protection, I probably would have lost 

my job and all its benefits[.]’’ Id. 

Another employee said he could not 

have cared for his ill wife without 

FMLA. An Employee Comment, Doc. 

FL18, at 1. ‘‘My wife * * * has a 

medical condition that is covered by the 

FMLA. I have used intermittent FMLA 

leave to take her to the doctor whose 

office is located approximately 4 hours 

away by car from where we live. I have 

been doing this on average once a 

month for approximately 3 years. I 

would not be able to do this without the 

FMLA.’’ Id. 

One employee, whose comment 

echoed the sentiment that the FMLA 

allows employees to balance their work 

obligations with the need to care for 

their loved ones, appreciated how his 

family benefited from FMLA leave. 

‘‘Presently, my sister is having to care 

for our ailing mother while holding 

down a job. The Family and Medical 

Leave Act is very important to her as 

well as her family in her continued 

effort to care for our mother in her final 

days.’’ An Employee Comment, Doc. 

FL9, at 1. Another employee said, ‘‘I 

* * * recently returned from taking a 

two week FML[A leave] to care for my 

elderly stepfather after open heart 

surgery. My family and I were 

appreciative that because of the FML[A] 

I was able to request time to assist with 

his care and recuperation at home. We 

all have no doubt that my time was 

invaluable with his improvement once 

home.’’ An Employee Comment, Doc. 

139, at 1. 

Other commenters also noted the 

value of FMLA when they needed leave 

because of their own serious health 

conditions. For example, one employee 

said, ‘‘As a cancer survivor myself, I 

cannot imagine how much more 

difficult those days of treatments and 

frequent doctor appointments would’ve 

been without FMLA. I did my best to be 

at work as much as possible, but 

chemotherapy and radiation not only 

sap the body of energy, but also take 

hours every day and every week in 

treatment rooms.’’ An Employee 

Comment, Doc. 5798, at 1. Another 

employee, who used FMLA leave on 

several occasions for her own serious 

health condition, stated that she was 

‘‘very thankful for the existence of the 

Family and Medical Leave Act (FMLA). 

As a two-time survivor of breast cancer, 

I have taken FMLA leave both on a 

continuous and an intermittent basis—

continuous leave to recover from my 

surgeries (therapeutic and 

reconstructive) and intermittent for 

doctors appointments, radiation 

therapy, and chemotherapy treatments.’’

An Employee Comment, Doc. 234, at 1. 

Other employees specifically pointed 

out the value of the FMLA in allowing 

them to focus completely on recovery. 

For example, a correctional officer 

commented, ‘‘I was out of work for a 

short period of time due to a serious 

medical condition that was treatable. 

FMLA gives the employee the ability to 

tend to these concerns with their full 

attention, to recuperate without 

sacrificing their career [or] their 

livelihood.’’ An Employee Comment, 

Doc. FL87, at 1. 

Several employees commented 

specifically about the value of 

intermittent leave under the FMLA. A 

railroad employee of thirty-six years 

said he uses intermittent leave to care 

for his wife, who suffers from Multiple 

Sclerosis (‘‘MS’’). An Employee 

Comment, Doc. FL115, at 1. 

Acknowledging the sporadic need for 

leave, the commenter said, ‘‘Since MS is 

an incurable disease without a schedule 

or any way of knowing when an episode 

is going to [occur], I cannot always 

foresee when I am needed at home. The 

only time I know I am needed is when 

[my wife] has an appointment with her 

doctor. This is subject to change if she 

is unable to go to the doctor due to 

weakness.’’ Id. Similarly, an AT&T 

employee commented that intermittent 

leave under the Act makes it possible 

for her to care for her mother, who has 

Alzheimer’s disease. ‘‘I only take an 

hour here and there as needed. I try to 

work doctor appointments and other 

things around my work schedule. 

However, it is impossible to always do 

that. FMLA has been a life saver for me. 

Had I not had FMLA for this reason I 

don’t know what I would do.’’ An 

Employee Comment, Doc. 10046A, at 1. 

Many employees commented that the 

Act helped save their jobs. For example, 

one employee, who commented that her 

child’s health condition sometimes 

keeps her out of work for several days 

at a time, said, ‘‘FMLA has 

tremendously helped my family. I have 

a child born w/[asthma], allergies & 

other medical issues. And, there are 

times I’m out of work for days[. I]f I 

didn’t have FMLA I would have been 

fired [a long] time ago. I’ve been able to 

maintain my employment and keep my 

household from having to need 

assistance from the commonwealth.’’ An 

Employee Comment, Doc. 229, at 1. 

Another employee said, ‘‘I returned 

home after three months [of FMLA 

leave] to be told I no longer had a job. 

I was told it would be unfair of me to 

expect my coworkers to cover for me so 

they were forced to hire a new employee 

* * * When I asked the manager about 

the previous assurances that my job 

would be held until I returned I wasn’t 

given a direct answer. I invoked the 

FMLA and was able to keep my job.’’ An 

Employee Comment, Doc. 61, at 1. A 

teacher stated, ‘‘Without [the FMLA], I 

couldn’t have cared for both of my 

parents at different times in their lives 

and kept my job * * * Because of the 

act I was able to keep my parents out of 

nursing homes and still keep my job to 

support them later. This is the best thing 

you can do for working families around 

our country.’’ An Employee Comment, 

Doc. 1181, at 1. 

Similarly, an employee with a chronic 

serious health condition commented, ‘‘I 

can get sick at any time and need brain 

surgery. This can put me out of 

commission for a month or two. FMLA 

gives me the peace of mind that I cannot 

be fired after I have been in a job for a 

year. I cannot stress how monumental 

that assurance is.’’ An Employee 

Comment, Doc. 159, at 1. Another 

employee said, ‘‘Without the availability 

of FMLA I’m not certain of what would 

have happened to my family when my 

husband was diagnosed with ALS 5 


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years ago. Thankfully it was there, so I 

could be with him as he was dying.’’ An 

Employee Comment, Doc. 4332, at 1. A 

union steward, using FMLA leave for 

his own serious health condition, 

commented that ‘‘FMLA not only allows 

me to take time off for * * * therapy/ 

medical appointments but also allows 

[me] to take time off as needed when I 

have sporadic episodes in which the 

medicine does not work, needs to be 

fine tuned or changed which is essential 

to my well-being.’’ An Employee 

Comment, Doc. 4619, at 1. He further 

commented, ‘‘Without FMLA I would 

have been fired long ago[.] * * * FMLA 

saved my job and I also believe saved 

my life, and to this day gives me a sense 

of security against any discipline or 

termination based on my legitimate 

medical needs.’’ Id. 

The FMLA appears to be particularly 

valued by employees caring for both 

children and parents with serious health 

conditions. A telephone company 

employee providing care for her 

asthmatic son and for her 84-year-old 

mother commented: ‘‘I am part of what 

is known as the ‘‘Sandwich 

Generation’’[.] * * * I have had several 

occasions to use FMLA[.] * * * 

Without FMLA protection I would have 

lost my job.’’ An Employee Comment, 

Doc. R133, at 1. Another employee 

described taking leave for a three-month 

period for the birth of her child, then 

needing leave intermittently to care for 

her father ‘‘for a few days after each 

hospitalization’’ for his chronic heart 

disease. An Employee Comment, Doc. 

6311, at 1. According to this commenter, 

‘‘Knowing that I was protected meant I 

didn’t have to choose between my 

Father’s health and my job.’’ Id. at 1. 

In a similar vein, one commenter who 

administers FMLA leave for her 

employer noted, ‘‘What I am seeing with 

increasing regularity are FMLA requests 

for employees to care for an elderly 

parent who is ill and not able to afford 

a caregiver to attend to his/her needs. 

These are usually for intermittent leaves 

that will allow the employee to chauffer 

their parent to the doctor [or] attend to 

their parent post surgery. As our 

working population ages, [the need for 

leave related to] caring for elderly 

parent(s) will increase.’’ Doreen 

Stratton, Doc. 696 at 1. An employee 

agreed: ‘‘There are multiple factors 

putting stress on the American family, 

making the FMLA a good thing for 

families with children. Also, millions of 

baby-boomers are getting old, many of 

them without adequate retirement 

funds—so we will be seeing more family 

caregivers, not fewer.’’ An Employee 

Comment, Doc. 5473, at 1. As these 

comments show, the importance of the 

FMLA is growing for this key group of 

employees and their employers. As one 

commenter put it, ‘‘In most families, 

since both parents have to work to 

support themselves and their children 

and perhaps their older parents, the 

more a company provides pay and good 

will towards a family[’s] caretaking 

abilities, the more that employee will be 

loyal to the company.’’ An Employee 

Comment, Doc. 5521, at 1. 

In addition to these individual 

employee and employer comments, the 

American Federation of Labor and 

Congress of Industrial Organizations 

(‘‘AFL–CIO’’) conducted an ‘‘online 

survey among members of Working 

America, the Federation’s communitybased affiliate in response to the RFI. 

Within a period of two weeks, over 

1,660 members responded.’’ Doc. 

R329A, at 6. As a result of their survey, 

several hundred personal experiences 

were included in an Appendix to the 

AFL–CIO’s comment—a sampling of 

which is provided here: 

• ‘‘My daughter was mauled by a dog. 

I had to take 2 months of leave 

(permitted under FMLA). Had FMLA 

not been in place, I would have lost my 

job for sure.’’

• ‘‘FMLA has made a big difference to 

me. I have a chronic health condition 

along with being a single mother and 

have my aging mother living with me. 

I can’t imagine not being able to use this 

so that I know that my job will still be 

there whether I have a [reoccurrence] of 

my health condition or like when my 4 

year old broke his leg.’’

• ‘‘My step mother had a debilitating 

stroke. Since I work in social services, 

I was [the] best person in the family to 

assist her with setting up her benefits. 

My direct supervisor did not like it, but 

my request could not be denied. Human 

Resources was more than helpful in 

telling me how much vacation and sick 

time I had accrued. It was required that 

I use that up while I was on FMLA. I 

was paid for all but a week and a half 

of my leave. Without FMLA, I could not 

have taken the 5 weeks off work.’’

• When my mother was diagnosed 

with lung cancer, my brother and I 

decided I would be the one to take her 

to all her appointments and therapy. I 

would have lost my job or had to leave 

it without FMLA. It was difficult for the 

people I worked with because it put a 

strain on the office, however, they were, 

for the most part, emotionally 

supportive as well.’’

• ‘‘My mother was diagnosed with 

cancer and she had a stroke that left her 

paralyzed and wheelchair bound. With 

the help of the FMLA, I was able to take 

her to her appointments and tell the 

doctors what was going on with her 

since I was her primary caregiver. I was 

able to be with her when she took her 

last breath and was grateful for the time 

I was able to [spend] with her until her 

death.’’

Id. at 46–59. 

Similarly, the Communications 

Workers of America submitted several 

hundred examples of their members’

personal experiences with FMLA ‘‘to 

illustrate the continued importance of 

the FMLA[.]’’ Doc. R346A, at 16. A 

representative sample of those 

experiences follows: 

• ‘‘A Cingular employee with a good 

work record has Lupus which causes 

periodic flare-ups that prevent her from 

working and require weekly therapy and 

regular doctor visits. FMLA has allowed 

her to remain stress-free * * * because 

she does not need to worry about losing 

her job.’’

• ‘‘A Pacific Bell Telephone 

employee with chronic lower back pain 

that prevents sitting or walking when it 

flairs up has been able to take FMLA 

leave when these symptoms occur 

without facing discipline for absence 

issues. As a result, this employee 

remains a productive and committed 

employee.’’

• ‘‘A [Communications Workers of 

America] member reports that in 1995 

his late wife was diagnosed with colon 

cancer. After she was operated on, she 

needed extensive chemotherapy. His 

employer allowed him to substitute paid 

leave for unpaid FMLA leave whenever 

he needed to go with his wife to 

chemotherapy treatments since she was 

unable to drive herself to or from these 

appointments. This made a big 

difference especially because some of 

the medical care was not covered by the 

employee’s insurance.’’

• ‘‘An employee of AT&T has used 

FMLA leave to care for her husband, her 

son, her elderly mother and for her own 

serious health condition. She reports 

that she learned about the availability of 

FMLA leave from her union and the 

union representatives were very helpful 

to her in trying to understand 

complicated FMLA application forms 

and other related documents sent to her 

in connection with these leaves.’’

• ‘‘An employee of AT&T used FMLA 

leave five years ago when her father 

developed a brain tumor that ultimately 

took his life. She states that ‘it was 

devastating to our family, but I am so 

grateful that, with the FMLA I was able 

to help care for him in our home and 

was by his side when he passed. This 

is how life and death should be. Losing 

the protections of FMLA would force us 

to have strangers care for our [loved] 

ones in their time of need.’ ’’


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Id. at 16–42. 

Numerous employees commented that 

requesting and using FMLA leave was a 

positive experience because their 

employers were helpful and 

straightforward in providing such leave. 

Several of these employees commented 

that their employers initially suggested 

they request FMLA leave and helped 

them through the process. See, e.g., 

Employee Comments, Doc. 4734, at 1 

(‘‘My employer did not give me any 

difficulty in using my sick/personal 

time[.] * * * I spoke to my Human 

Resources person and she suggested I 

apply [for FMLA leave].’’); Doc. 874, at 

1 (an employee who needed leave to 

care for her mother in a different state 

‘‘first heard of FMLA when I contacted 

my HR office about my dilemma, and I 

was so amazed and relieved that such a 

worker-centric law actually existed! 

With the help of FMLA, I was able to 

spend a month in Michigan helping my 

Mom—away from my job—without 

having to worry that I would be fired.’’). 

Other employees observed that their 

employers put them at ease when they 

requested FMLA leave. Specifically, an 

employee recalled when her child 

became ill with a brain tumor that her 

‘‘company was very understanding 

about granting me [FMLA] leave. I felt 

very safe and secure knowing that I 

could take leave and still have my job 

when I returned.’’ An Employee 

Comment, Doc. 95, at 1. Similarly, an 

employee said she was ‘‘[s]o thankful 

when my employer informed me of this 

law because it gave my mom peace of 

mind knowing that I would be available 

for her when she needed me.’’ An 

Employee Comment, Doc. 4773, at 1. 

Often employees were thankful 

because their employers were 

sympathetic to their family needs while 

on FMLA leave. The National 

Association of Working Women 

provided the example of ‘‘a 41-year-old 

single mother in Aurora, Colorado. The 

FMLA allows her to take off whenever 

her 11-year-old son * * * has an attack 

caused by his chronic asthma. ‘When he 

does get sick, I have to be up practically 

24 hours,’ [the mother] says, praising 

her employer, Kaiser Permanente, and 

her supervisor for understanding her 

situation.’’ Doc. 10210A, at 1. One 

employee said her employer’s sympathy 

during FMLA leave prevented her from 

looking for new work: ‘‘Thanks to the 

FMLA, I was able to take three months 

off work with full salary in order to take 

care of [my husband] when he was 

reduced to a state of complete 

dependency. * * * I was secure in the 

knowledge that I could come right back 

to my job, and I developed a keen sense 

of loyalty to my employer which has 

more than once prevented me from 

looking for work elsewhere.’’ An 

Employee Comment, Doc. R62, at 1. 

Finally, one employee stated she did not 

find requesting FMLA leave to be 

‘‘cumbersome or unreasonable’’ because 

her Human Resources department was 

‘‘very helpful with the entire process.’’

An Employee Comment, Doc. 4720, at 1. 

Further, she noted that ‘‘the process and 

leave itself [was a Godsend] as caring for 

our Mother was very, very stressful[.]’’

Id. 

Many comments recounted employer 

policies that go above and beyond what 

is required under the Act. See, e.g., An 

Employee Comment, Doc. 5069, at 1 

(employer ‘‘gives paid medical leave 

based on how much time is medically 

necessary.’’); Jill Ratner, President, The 

Rose Foundation for Communities and 

the Environment, Doc. 4877, at 1 (A 

non-profit foundation that provides 

‘‘one week of paid family leave (in 

addition to two weeks of paid sick 

leave) to all employees’’ commented 

that ‘‘providing family leave is critical 

to recruiting and retaining qualified 

staff, and to maintaining staff morale 

and effectiveness.’’); An Employee 

Comment, Doc. 1106, at 1 (‘‘Altogether, 

I was away from work for about two 

months or so. My employer, Monsanto, 

was very generous with me. In addition 

to granting the time off and guaranteeing 

I would still have my job when I 

returned, they paid sick leave during 

this period.’’); An Employee Comment, 

Doc. 70, at 1 (The employer of an 

employee who had been employed for 

less than one full year when she needed 

FMLA leave to care for her sick mother 

‘‘essentially applied the FMLA rules 

anyway; they let me use all my vacation 

time and then gave me unpaid leave. I 

cannot tell you what a difference that 

made.’’); National Employment Lawyers 

Association, Doc. 10265A, at 3 (An 

attorney association commented that 

one of her clients suffered from chronic 

fatigue syndrome, which shortened her 

work day by 1 to 2 hours, but ‘‘her 

employer was very cooperative with her 

efforts to continue working by allowing 

her to use her FMLA [leave] in these 

short blocks of time and wasn’t even 

really counting whether she was using 

up her FMLA leave.’’). 

A professor commented that her 

college provided leave periods in 

addition to FMLA leave, lasting the 

length of a full school term. An 

Employee Comment, Doc. R79A, at 1. ‘‘I 

also underwent surgery, several cycles 

of adjuvant chemotherapy, and a series 

of medical tests for the management of 

my cancer and am currently considered 

to be cancer-free and doing well. These 

treatments were possible, not only 

because of my excellent medical 

coverage as a full-time university 

employee, but because I could take a 

one-term medical leave in the fall and 

still receive paychecks[.]’’ Id. 

Some employers also noted that 

making it easier on employees to use 

FMLA leave was a positive experience 

from their perspective. One employer 

commented: 

If I have an employee with a child or 

family member with a serious illness, and 

this employee is unable to be with that 

family member when needed, they are 

distracted at work and their productivity 

suffers. In contrast, if they are allowed time 

to take care of that family member, their 

productivity increases. They know what they 

have to accomplish and—sometimes by 

working at home, or working extra hours, or 

skipping lunch, or working exceptionally 

hard—they get it done. And in the end I have 

an extremely loyal employee. 

Marie Alexander, President & CEO, 

Quova, Inc., Doc. 5291, at 1. A public 

sector employer commented that 

administering FMLA leave was ‘‘no 

more difficult to navigate than any other 

labor oriented legislation. In fact, I find 

it very straightforward, and it has been 

a literal lifesaver for some of our 

people.’’ Kevin Lowry, Nassau County 

Probation, Doc. 86, at 1. The commenter 

went on to say, ‘‘In the long run, most 

people will appreciate the extra 

protection offered by the employer 

during a difficult time and will return 

as more motivated employees once the 

crisis has passed.’’ Id. The benefit to 

employers of providing FMLA leave to 

employees was also the topic of another 

employer’s comment: ‘‘As a supervisor, 

FMLA allowed me to keep a good 

employee while she cared for her 

terminally ill husband. After he passed 

away, she came back to work and has 

continued to contribute to [the 

company] in an extremely valuable 

way.’’ Chris Yoder, Doc. 922, at 1. 

Some employees also noted that, 

upon returning from FMLA leave, they 

felt more productive at work and more 

loyal to their employer. One employee 

said, ‘‘My mentor allowed me to use my 

own sick leave and vacation and then to 

hold my position without pay until after 

my mother passed and I was able to 

return to work. The course of my 

mother’s illness was quick, and I was 

gone about six weeks total. When I 

returned to work, I was able to re-engage 

in it and be productive.’’ An Employee 

Comment, Doc. 885, at 1. Another 

employee commented, ‘‘I used FMLA 

three times in the last 9 years (with and 

without pay); each time I was very 

grateful to know that my job status was 

protected when I was out on leave. All 

three times I returned to work and 


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rededicated myself to my job. FMLA 

helped me, my family, and my loyalty 

and productivity in the workplace.’’ An 

Employee Comment, Doc. R2, at 1. 

A telecommunications employee also 

commented that taking FMLA leave 

allows her to be more productive: ‘‘The 

FMLA has changed my life. It has saved 

my job. Without the intermittent leave, 

and my taking only 1.5 days maximum 

per month, I would be on a disability. 

When I do miss work, I work twice as 

hard to make up for the time I am gone. 

I actually produce more than those who 

don’t take the FMLA time.’’ An 

Employee Comment, Doc. 233, at 1. 

Another employee noted that FMLA 

leave is not ‘‘charity’’ but ‘‘instead it 

safeguard[s] loyal employees who, 

because of unforeseen circumstances 

need a temporary helping hand.’’ An 

Employee Comment, Doc. 4732, at 1. 

Further, the commenter noted, ‘‘I have 

known a family which has benefited 

tremendously by the FMLA. After 

assistance, they have emerged once 

again into a productive, tax paying, 

exciting family that is contributing to 

our community.’’ Id. 

While other chapters of this Report 

detail areas where commenters indicate 

the FMLA may not work as well as it 

could, the comments in this chapter 

show the continued value to employees 

and employers of the FMLA leave 

entitlements. While employees were 

relieved at having available jobprotected leave, they also often noted 

their increased loyalty to their 

employers after using periods of FMLA 

leave, especially where they felt their 

employers were sympathetic concerning 

the leave circumstances and helpful 

with the procedures for taking leave. 

Employers, as well as employees often 

noted increased productivity among 

employees returning from FMLA leave 

and, in some instances, provided greater 

benefits than those required by the Act. 

The value of FMLA leave was pointed 

out for all types of qualifying leave 

scenarios, but was particularly 

referenced in regard to employees of the 

‘‘sandwich generation’’ who frequently 

find themselves caring for their own 

health needs, those of their children, 

and of their aging parents. 

II. Ragsdale/Penalties 

In Ragsdale v. Wolverine World Wide, 

Inc., 535 U.S. 81 (2002), the Supreme 

Court held that the penalty provision in 

the Department’s regulation at section 

825.700(a) is invalid. That regulation 

states that ‘‘[i]f an employee takes paid 

or unpaid leave and the employer does 

not designate the leave as FMLA leave, 

the leave taken does not count against 

an employee’s FMLA entitlement.’’ 29 

CFR 825.700(a). The Court held the 

provision is invalid because, in some 

circumstances, it requires employers to 

provide leave in excess of an employee’s 

12-week statutory entitlement. Although 

the Court did not invalidate the 

underlying notice and designation 

provisions in the regulations, it made 

clear that any ‘‘categorical penalty’’ for 

a violation of such requirements would 

exceed the Department’s statutory 

authority. 

The Request for Information noted 

that a number of courts have invalidated 

a similar penalty provision found in 

section 825.110(d), which requires an 

employer to notify an employee prior to 

the employee commencing leave as to 

whether the employee is eligible for 

FMLA leave. If the employer fails to 

provide the employee with such 

information, or if the information is not 

accurate, the regulation bars the 

employer from challenging the 

employee’s eligibility at a later date, 

even if the employee is not eligible for 

FMLA leave pursuant to the statutory 

requirements. 

Therefore, the Department asked 

commenters 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?’’ The 

Department received a significant 

number of comments regarding this 

issue and related notice issues. 

A. Background 

The FMLA entitles eligible employees 

of covered employers to 12 weeks of 

leave per year for certain family and 

medical reasons. 29 U.S.C. 2612(a)(1). In 

order to allow employees to know when 

they are using their FMLA-protected 

leave, the regulations state that ‘‘it is the 

employer’s responsibility to designate 

leave, paid or unpaid, as FMLAqualifying, and to give notice of the 

designation to the employee.’’ 29 CFR 

825.208(a). More specifically, ‘‘[o]nce 

the employer has acquired knowledge 

that the leave is being taken for an 

FMLA required reason, the employer 

must promptly (within two business 

days absent extenuating circumstances) 

notify the employee that the paid leave 

is designated and will be counted as 

FMLA leave.’’ 29 CFR 825.208(b)(1). See 

also 29 CFR 825.301(b)(1)(i) and (c). The 

employer’s designation may be oral or 

in writing, but if it is oral, it must be 

confirmed in writing, generally no later 

than the following payday, such as by 

a notation on the employee’s pay stub. 

29 CFR 825.208(b)(2). 

The categorical penalty provision of 

the regulations with regard to paid leave 

provides as follows: 

If the employer has the requisite 

knowledge to make a determination that the 

paid leave is for an FMLA reason at the time 

the employee either gives notice of the need 

for leave or commences leave and fails to 

designate the leave as FMLA leave (and so 

notify the employee in accordance with 

paragraph (b)), the employer may not 

designate leave as FMLA leave retroactively, 

and may designate only prospectively as of 

the date of notification to the employee of the 

designation. In such circumstances, the 

employee is subject to the full protections of 

the Act, but none of the absence preceding 

the notice to the employee of the designation 

may be counted against the employee’s 12- 

week FMLA leave entitlement. 

29 CFR 825.208(c). See also 29 CFR 

825.700(a) (‘‘If an employee takes paid 

or unpaid leave and the employer does 

not designate the leave as FMLA leave, 

the leave taken does not count against 

an employee’s FMLA entitlement.’’). 

In Ragsdale, 535 U.S. 81, the Supreme 

Court considered a case in which the 

plaintiff had received 30 weeks of leave 

from her employer. At that point, her 

employer denied her request for 

additional leave and terminated her 

employment. She alleged that her 

employer violated section 825.208(a), 

which requires an employer to designate 

prospectively that leave is FMLAcovered and to notify the employee of 

the designation. Because her employer 

did not do so, she alleged that she was 

entitled under section 825.700(a) to an 

additional 12 weeks of FMLA-protected 

leave. 

The Court found that this ‘‘categorical 

penalty’’ is ‘‘incompatible with the 

FMLA’s comprehensive remedial 

mechanism,’’ which puts the burden on 

the employee to show that the employer 

interfered with, restrained, or denied 

the employee’s exercise of FMLA rights, 

and that the employee suffered actual 

prejudice as a result of the violation. 

Ragsdale, 535 U.S. at 89. The Court 

observed that, according to the 

regulation, the ‘‘fact that the employee 

would have acted in the same manner 

if notice had been given is, in the 

Secretary’s view, irrelevant.’’ Id. at 88. 

The Court also found that the regulation 

‘‘subverts the careful balance’’ that 

Congress developed with regard to ‘‘the 

FMLA’s most fundamental substantive 

guarantee’’ of an entitlement to a total 

of 12 weeks of leave, which was a 

compromise between employers who 

wanted fewer weeks and employees 

who wanted more. Id. at 93–94. Thus, 

the Court held that the penalty 

provision of section 825.700(a) is 

‘‘contrary to the Act and beyond the 

Secretary of Labor’s authority.’’ Id. at 84. 


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The Supreme Court did not invalidate 

the notice and designation provisions in 

the regulations. Indeed, the Court 

recognized that there may be situations 

where an employee is able to show that 

the employer’s failure to provide the 

required notice of FMLA rights 

prejudiced the employee in a specific 

way (such as depriving the employee of 

an opportunity to take intermittent leave 

or to return to work sooner). The Court 

stated, however, that the Act’s remedial 

structure requires a ‘‘retrospective, caseby-case examination’’ to determine 

‘‘whether damages and equitable relief 

are appropriate under the FMLA,’’ based 

upon the steps the employee would 

have taken had the employer given the 

required notice, rather than a categorical 

penalty. Id. at 91. See Sorrell v. Rinker 

Materials Corp., 395 F.3d 332, 336 (6th 

Cir. 2005) (remanding the case for a 

determination of whether the doctrine 

of estoppel bars the company from 

challenging the employee’s entitlement 

to FMLA leave because the employer 

had unconditionally approved the leave 

request); Duty v. Norton-Alcoa 

Proppants, 293 F.3d 481, 493–94 (8th 

Cir. 2002) (holding that the employer 

was equitably estopped from asserting 

that the plaintiff had exhausted his 12 

weeks of FMLA leave, based on a letter 

expressly informing him after 22 weeks 

of disability leave that he still had 12 

weeks of FMLA leave left); Wilkerson v. 

Autozone, Inc., 152 Fed. Appx. 444 (6th 

Cir. 2005) (based on the employer’s 

statement that the employee had six 

weeks of post-partum FMLA leave, 

equitable estoppel applied because the 

employee reasonably relied on it and 

showed the requisite prejudice). 

The Ragsdale decision addressed only 

the penalty provision in section 

825.700(a), which is applicable to both 

unpaid leave and paid leave (Ragsdale 

involved unpaid leave). The penalty 

provision in section 825.208(c) 

(applicable only to paid leave) is 

virtually identical. A number of courts 

have held that the rationale of the 

Ragsdale decision applies equally to 

section 825.208(c), and that an 

employee must show prejudice from the 

lack of notice to establish a violation of 

the Act. See, e.g., Miller v. PersonalTouch of Va., Inc., 342 F. Supp. 2d 499, 

513–14 (E.D. Va. 2004); Donahoo v. 

Master Data Ctr., 282 F. Supp. 2d 540, 

554–55 (E.D. Mich. 2003); and Phillips 

v. Leroy-Somer N. Am., No. 01–1046–T, 

2003 WL 1790941, *5–7 (W.D. Tenn. 

Mar. 28, 2003). 

As discussed above, a number of 

courts also have found that the 

‘‘deeming’’ provision in section 

825.110(d) of the regulations is invalid 

and contrary to the statute. The FMLA 

establishes that employees are eligible 

for FMLA leave only if they have been 

employed by the employer ‘‘for at least 

12 months’’ and have ‘‘at least 1,250 

hours of service with such employer 

during the previous 12-month period.’’

29 U.S.C. 2611(2)(A). The regulations 

generally require an employer to notify 

an employee whether the employee is 

eligible for FMLA leave prior to the 

employee commencing leave. If the 

employer confirms the employee’s 

eligibility, ‘‘the employer may not 

subsequently challenge the employee’s 

eligibility.’’ 29 CFR 825.110(d). 

Furthermore, ‘‘[i]f the employer fails to 

advise the employee whether the 

employee is eligible prior to the date the 

requested leave is to commence, the 

employee will be deemed eligible. The 

employer may not, then, deny the leave. 

Where the employee does not give 

notice of the need for leave more than 

two business days prior to commencing 

leave, the employee will be deemed to 

be eligible if the employer fails to advise 

the employee that the employee is not 

eligible within two business days of 

receiving the employee’s notice.’’ Id. 

Thus, even if an employee fails to 

satisfy the statutory eligibility 

requirements, the regulation ‘‘deems’’

the employee to be eligible for FMLAprotected leave. The courts have held 

that this regulation is invalid. See, e.g., 

Woodford v. Comty. 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), cert. denied, 532 U.S. 

1037 (2001) (‘‘There is no ambiguity in 

the statute concerning eligibility for 

family medical leave, no gap to be 

filled.’’); Dormeyer v. Comerica BankIll., 223 F.3d 579, 582 (7th Cir. 2000) 

(‘‘The statutory text 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.’’ Therefore, the 

Department ‘‘has no authority to change 

the Act,’’ as the regulation attempts to 

do, by making ineligible employees 

eligible for family leave). 

The courts have concluded that an 

employee may pursue a case, based on 

the principle of equitable estoppel, 

where the employer’s failure to advise 

the employee properly of his/her FMLA 

eligibility/ineligibility is determined to 

have interfered with the employee’s 

rights, and the employee could have 

taken other action had s/he been 

properly notified. See, e.g., Dormeyer, 

223 F.3d at 582 (‘‘an employer who by 

his silence misled an employee 

concerning the employee’s entitlement 

to family leave might, if the employee 

reasonably relied and was harmed as a 

result, be estopped to plead the defense 

of ineligibility to the employee’s claim 

of entitlement to family leave.’’); 

Kosakow v. New Rochelle Radiology 

Assocs., P.C., 274 F.3d 706, 722–27 (2d 

Cir. 2001). See also Wage and Hour 

Opinion Letter FMLA2002–1 (Aug. 6, 

2002). 

B. Comments on Ragsdale: Notice and 

Designation Issues 

A number of commenters addressed 

the Ragsdale categorical penalty issue 

and responded to the Request for 

Information’s question regarding 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?’’

The National Coalition to Protect 

Family Leave stated that section 

825.700(a) and the similar penalty 

provision in section 825.208 should be 

removed from the regulations, and that 

‘‘any ‘penalty’ that DOL wants to 

impose on employers for failure to 

follow certain notice obligations 

dictated by the regulations must be 

tailored to the specific harm suffered by 

the employee for failure to receive 

notice.’’ National Coalition to Protect 

Family Leave, Doc. 10172A, at 43, The 

Coalition asserted that retroactive 

designation should be permitted, so that 

employees ‘‘could receive the FMLA 

protections despite their failure to 

adequately communicate that the FMLA 

is at issue, and employers who 

inadvertently fail to timely designate 

leave can have the opportunity to count 

the absence toward the employee’s 

FMLA leave bank. Retroactive 

designation should be permitted in all 

cases where the employee is eligible, the 

condition qualifies, and the employee 

has adhered to his/her FMLA notice 

obligations that FMLA leave is at issue.’’

Id. at 44. See also Proskauer Rose LLP, 

Doc. 10182A, at 9 (the regulations 

should allow an employer ‘‘who 

initially fails to designate a leave as 

FMLA leave, but nevertheless grants the 

employee the leave, to retroactively 

designate the leave as FMLA leave’’); 

Coolidge Wall Co. LPA, Doc. 5168, at 1 

(the regulations should state that an 

employer that has an FMLA policy in its 

handbook, for which an employee has 

acknowledged receipt, can send out the 

FMLA notice ‘‘mid-leave and can 

retroactively count the employee’s 

time’’); Commonwealth of Pennsylvania, 

Doc. FL95, at 2–3 (retroactive 


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designation should be allowed ‘‘when 

an employee’s FMLA rights were 

provided during the period of absence,’’

because the two-day verbal notification 

requirement is difficult to achieve, 

although the written notification/ 

designation requirements ‘‘usually can 

occur * * * within the timeframes 

prescribed by the Regulations’’). 

The Air Transport Association of 

American, Inc., and the Airline 

Industrial Relations Conference 

suggested that the regulations be revised 

in light of Ragsdale, because employers 

do not know which regulations they 

must follow and which are no longer 

valid, and employees who read them 

also are confused about which 

regulations their employers must follow. 

Doc. FL29, at 15. See also Association 

of Corporate Counsel, Doc. FL31, at 10 

(section 825.700 should be deleted to 

clarify that an employer’s failure to 

timely designate leave does not increase 

the statutory leave period). 

United Parcel Service, Doc. 10276A, 

at 2, suggested that the Department 

should clarify in section 825.208 the 

effect of an employer’s mistaken 

designation of FMLA leave, because 

some courts have held that the doctrine 

of equitable estoppel prevents an 

employer from denying protected leave 

based on a subsequent determination 

that the employee was not eligible. The 

United States Postal Service similarly 

suggested that both sections 825.700(a) 

and 825.208(c) should be revised to 

clarify that ‘‘a technical violation of the 

notice provisions does not result in a 

windfall of surplus FMLA protection for 

an employee who suffered no harm as 

a result.’’ Doc. 10184A, at 4. A large 

provider of human resources 

outsourcing services commented that 

‘‘by deleting the ‘penalty’ provision and 

simply reinforcing employer 

notification obligations,’’ the 

Department would appropriately 

respond to Ragsdale. Hewitt Associates, 

Doc. 10135A, at 8. Hewitt stated that 

employers benefit by providing more 

notice because they: Educate employees 

about their rights, responsibilities, and 

benefits; maximize the likelihood that 

employees will return to work 

promptly; maintain or enhance their 

engagement; minimize the impact on 

other HR administrative processes; 

minimize the impact on business 

operations; and reduce available time 

off balances accurately. Id. at 7–8. 

Finally, as discussed in detail in 

Chapter V, a number of commenters 

stated that the two-day time frame for 

designating leave is inadequate, or that 

the designation requirement should 

apply only when employees expressly 

request FMLA leave. The National 

Association of Convenience Stores 

suggested that, in light of Ragsdale, 

‘‘DOL should consider eradicating all 

formal employer designation 

requirements.’’ Doc. 10256A, at 7. 

Other stakeholders, however, 

presented views in support of the 

current notice and designation 

requirements and had suggestions for 

changes that would provide improved 

and prompt information to employees. 

One commenter stated that the data 

show that two days is sufficient to allow 

employers to review and respond to 

employees’ leave requests. ‘‘Most 

organizations spend only between thirty 

and 120 minutes of administrative time 

per FMLA leave episode to provide 

notice, determine eligibility, request and 

review documentation, and request a 

second opinion. Therefore, no change to 

the current two-day response 

requirement is warranted.’’ National 

Partnership for Women & Families, Doc. 

10204A, at 21 (citation omitted). That 

commenter also noted that while the 

Supreme Court struck down the 

‘‘categorical penalty’’ in the current 

regulations, it left intact the requirement 

that employers designate leave, and it 

‘‘did not prohibit DOL from imposing 

any penalties on employers for failing to 

properly designate and notify employee 

about leave.’’ Id. at 18. Therefore, in 

light of the overall purposes of the 

notice and designation requirements, 

this commenter suggested that any 

changes to the regulations should: 

• ‘‘Emphasize that the Court did not 

alter the obligation of employers to both 

designate leave promptly and notify 

employees of how that leave has been 

designated. Thus, employers must 

continue to adhere to these designation 

and notice requirements or risk 

penalties.’’

• ‘‘Reaffirm and modify current 

recordkeeping requirements that require 

employers to keep accurate and 

complete records of how leave has been 

designated, and when the employee was 

notified of the designation.’’

• ‘‘Prohibit employers from making 

any retroactive changes to how leave 

has been designated without 

notification and consultation with the 

employee, and require maintenance of 

records documenting such notification 

and consultation.’’

• ‘‘Establish new penalties for 

employer non-compliance that are not 

automatic, but can be imposed 

following a complaint by the affected 

employee and an independent 

determination of the harm caused by the 

employer’s violation.’’

Id. at 18–19. See also Letter from 53 

Democratic Members of Congress, Doc. 

FL184, at 2 (noting that Ragsdale 

invalidated only the penalty provision 

of the regulations and that any changes 

in the regulations should be limited to 

remedying that problem and should go 

no further). 

Another commenter suggested that 

‘‘fines should be imposed’’ on 

employers that do not maintain accurate 

records, and they ‘‘should not be able to 

retroactively change how leave was 

originally designated without notice and 

consultation with the employee.’’ OWL, 

The Voice of Midlife and Older Women, 

Doc. FL180, at 2. 

A number of commenters emphasized 

the hardships employees suffer when 

they do not know promptly whether the 

employer believes they are entitled to 

protected leave. Employees then either 

feel compelled not to take the time off 

that they need, or else they take off but 

are afraid because they do not know 

whether they will be subject to 

discipline for being off work. See, e.g., 

Frasier, Frasier & Hickman, LLP, Doc. 

FL60, at 1–3. As discussed in detail in 

Chapter V, a number of commenters 

therefore suggested that employers be 

required to inform employees promptly 

when they are using FMLA leave. 

Another commenter noted that his 

employer ‘‘is able to delay, and many 

times deny, for many weeks and months 

the benefits and protections which the 

Act affords,’’ because it repeatedly asks 

for more information on the certification 

form. An Employee Comment, Doc. 

10094A, at 2. During this ‘‘very lengthy 

approval process, the employee is 

subjected to attendance-related 

discipline when the absence should 

have been approved or at the very least 

be treated as ‘pending.’ ’’ Id. See also An 

Employee Comment, Doc. 5335, at 1 

(noting that she had gone out on shortterm disability leave for surgery but, 

despite her regular contact with the 

benefits specialist, she was not notified 

that the company had placed her on 

FMLA leave). This issue is addressed in 

more detail in Chapter VI relating to 

medical certifications. 

C. Deeming Eligible Issues 

A number of commenters also 

addressed issues related to the provision 

in 29 CFR 825.110(d) deeming 

employees eligible for FMLA leave if an 

employer either fails to advise them of 

their eligibility status within the allotted 

time period, or incorrectly advises them 

that they are eligible when they have 

not satisfied the statutory requirements 

of 12 months of employment and 1,250 

hours of service in the preceding 12 

months. 

One commenter stated that ‘‘[t]he 

Supreme Court’s decision in the 


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3Westat is a statistical survey research 

organization serving agencies of the U.S. 

Government, as well as businesses, foundations, 

and state and local governments. These surveys 

were commissioned by the Department of labor in 

2000 as an update to similar 1995 surveys ordered 

by the Commission on Family and Medical Leave, 

which was established by the FMLA. 

Ragsdale case casts grave doubt on the 

validity of other categorical penalties in 

the Regulations.’’ National Coalition to 

Protect Family Leave, Doc. 10172A, at 

13. It noted that a number of courts have 

struck down both the provision in 

section 825.110(d) stating that an 

employer may not later challenge an 

employee’s eligibility if it mistakenly 

confirms that an employee is entitled to 

leave, and the provision deeming an 

employee eligible if the employer fails 

to notify the employee that the 

employee is not eligible prior to the start 

of leave (if the employer had advance 

notice) or within two business days of 

receiving notice. This commenter stated 

that it ‘‘urges DOL to delete the language 

in section 825.110(d) that [the] federal 

courts have invalidated.’’ Id. at 14. 

Another commenter stated that, in 

light of the Ragsdale decision, the 

penalty provision for an employer’s 

failure to timely notify employees that 

they are eligible for FMLA leave should 

be deleted; however, the regulation 

should continue to require that the 

employer notify employees whether 

they are/are not eligible, but either 

delete the consequences from the 

regulation or incorporate the 

interference/estoppel theory approved 

by the Supreme Court in Ragsdale. 

‘‘That is, if the employee can 

demonstrate that the failure to provide 

notice caused actual harm to the 

employee’s FMLA rights the employer’s 

notice failure is actionable 

interference.’’ Carl C. Bosland, Esq., 

Preemptive Workforce Solutions, Inc., 

Doc. 5160, at 2–3. 

Another commenter suggested that, if 

an employer has a handbook, bulletin 

board, orientation materials, etc., that 

show employees were provided 

information about the FMLA, which 

leaves are protected, and how to apply 

for protected leave, ‘‘the employer 

should be exempted from consequences 

under this part of the act.’’ Ken 

Lawrence, Doc. 5228, at 1. 

Hewitt Associates noted that while 

equitable estoppel provides some 

guidance, it does not provide a rule. ‘‘In 

fact, an employer that wishes to 

‘undeem’ a leave is now required to 

make a subjective review of the 

employee’s circumstances (if the 

employer knows them) and analyze 

whether it would be fair to revoke the 

designation. * * * [R]evoking 

§ 825.110(d) allows employers to correct 

their errors by undesignating these 

leaves but, considering the analysis 

required, at an overly burdensome 

administrative price. The Department 

should craft a bright-line rule that 

balances the right of employers to 

revoke an ‘inappropriate’ FMLA 

designation, with fairness to employees 

who have relied upon that designation.’’

Hewitt Associates, Doc. 10135A, at 10. 

This commenter suggested a rule that 

both allows employers to count the time 

that an ineligible employee is permitted 

to remain on leave against that 

employee’s eventual 12-week 

entitlement, and gives employees a 

‘‘grace period’’ to return to work (the 

length of which would turn on 

circumstances such as the length of time 

left in the leave, the reason for the leave, 

travel, etc.). The commenter also would 

require the employer to provide an 

‘‘immediate and thorough notification to 

the employee’’ explaining that the 

employee was not eligible for leave, 

how the absences would be treated, the 

length of the grace period, etc. Id. at 11. 

As discussed in detail in Chapter V, 

a substantial number of employers 

emphasized the difficult and timeconsuming nature of making eligibility 

determinations, with regard to 

calculating both the number of hours 

worked in the past 12 months and the 

amount of FMLA leave used. They 

objected to any revision to the 

regulations that would require 

employers to provide periodic reports to 

employees about the amount of FMLA 

leave they have remaining. See, e.g., 

United Parcel Service, Doc. 10276A, at 

7–8. On the other hand, a few employers 

noted that they use payroll tracking 

systems that tell them whether 

employees are eligible for FMLA leave. 

Other commenters emphasized the 

importance to employees of knowing 

promptly whether they are eligible for 

leave, and they suggested that the FMLA 

regulations should encourage employers 

to provide accurate, thorough and 

timely information about FMLA 

eligibility and procedures. As discussed 

in Chapter V, these commenters 

emphasized that many employees still 

do not know whether they are protected 

by the FMLA; they do not have 

information about their leave options; 

and they do not know whether their 

leave is being designated as FMLA 

leave. Therefore, a number of 

commenters suggested that the 

Department should consider regulations 

that require employers to provide notice 

to employees, when they have worked 

for one year and on an annual basis, 

explaining their eligibility status, their 

leave entitlement, and the procedures 

for applying for FMLA leave. See, e.g., 

American Federation of Labor and 

Congress of Industrial Organizations, 

Doc. R329A, at 40. 

III. Serious Health Condition 

The Department asked two questions 

in its Request for Information about the 

definitions of serious health condition 

contained at 29 CFR 825.114: (1) 

‘‘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 [the] limitations in section 

825.114(c) been rendered inoperative by 

the regulatory tests set forth in section 

825.114(a)?’’; and (2) ‘‘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?’’

The regulatory definition of serious 

health condition is central to the FMLA 

because the primary reason that people 

take FMLA leave is to attend to their 

own or a family member’s health needs. 

See Westat, ‘‘Balancing the Needs of 

Families and Employers, Family and 

Medical Leave Surveys, 2000 Update,’’

January 2001, at 2–5 (hereinafter ‘‘2000 

Westat Report’’) (83.3% of employees 

report ‘‘own health’’ or health of parent, 

child, or spouse as reason for taking 

leave); see also National Coalition to 

Protect Family Leave, Doc. 10172A, 

Darby Associates, Attachment at 10 

(‘‘The [employee’s] own health * * * 

was the predominant reason for 

leave[.]’’).3 The Department received an 

overwhelming response to these 

questions. In order to fully understand 

these comments, though, and to give 

them some context it is necessary to 

explain the regulatory history of the 

definition of serious health condition. 

A. History and Background 

1. The Family and Medical Leave Act of 

1993 

Under the Act, an employee may be 

entitled to FMLA leave for any one of 

the four following reasons: 

(A) Because of the birth of a son or 

daughter of the employee and in order 

to care for such son or daughter. 

(B) Because of the placement of a son 

or daughter with the employee for 

adoption or foster care. 

(C) In order to care for the spouse, or 

a son, daughter, or parent, of the 


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4Stakeholders did also comment significantly on 

the definition of a ‘‘chronic’’ serious health 

condition contained at 29 CFR 825.114(a)(2)(iii), 

which is discussed in Chapter IV. 

employee, if such spouse, son, daughter, 

or parent has a serious health condition. 

(D) Because of a serious health 

condition that makes the employee 

unable to perform the functions of the 

position of such employee. 

29 U.S.C. § 2612(a)(1). The Act defines 

a serious health condition as ‘‘an illness, 

injury, impairment, or physical or 

mental condition that involves—(A) 

inpatient care in a hospital, hospice, or 

residential medical care facility; or (B) 

continuing treatment by a health care 

provider.’’ 29 U.S.C. 2611(11). The term 

‘‘continuing treatment’’ is not defined 

by the statute. The FMLA expressly 

grants to the Secretary of Labor the 

authority to ‘‘prescribe such regulations 

as are necessary to carry out [the Act].’’

29 U.S.C. 2654. 

The legislative history of the Act 

states that ‘‘[w]ith respect to an 

employee, the term ‘serious health 

condition’ is intended to cover 

conditions or illnesses that affect an 

employee’s health to the extent that he 

or she must be absent from work on a 

recurring basis or for more than a few 

days for treatment or recovery.’’ H. Rep. 

No. 103–8, at 40 (1991); S. Rep. No. 

103–3, at 28 (1993). The scope of 

coverage intended by ‘‘serious health 

condition’’ is not unlimited, however: 

The term ‘serious health condition’ is not 

intended to cover short-term conditions for 

which treatment and recovery are very brief. 

It is expected that such conditions will fall 

within even the most modest sick leave 

policies. Conditions or medical procedures 

that would not normally be covered by the 

legislation include minor illnesses which last 

only a few days and surgical procedures 

which typically do not involve 

hospitalization and require only a brief 

recovery period. * * * It is intended that in 

any case where there is doubt whether 

coverage is provided by this act, the general 

tests set forth in this paragraph shall be 

determinative. 

Id. The House and Senate Committee 

Reports also list the types of illnesses 

and conditions that would likely qualify 

as serious health conditions: 

Examples * * * include but are not 

limited to heart attacks, heart conditions 

requiring heart bypass or valve operations, 

most cancers, back conditions requiring 

extensive therapy or surgical procedures, 

strokes, severe respiratory conditions, spinal 

injuries, appendicitis, pneumonia, 

emphysema, severe arthritis, severe nervous 

disorders, injuries caused by serious 

accidents on or off the job, ongoing 

pregnancy, miscarriages, complications or 

illnesses related to pregnancy, such as severe 

morning sickness, the need for prenatal care, 

childbirth and recovery from childbirth. 

H. Rep. No. 103–8, at 40 (1991); S. Rep. 

No. 103–3, at 29 (1993). The committee 

reports state, ‘‘All of these conditions 

meet the general test that either the 

underlying health condition or the 

treatment for it requires that the 

employee be absent from work on a 

recurring basis or for more than a few 

days for treatment or recovery.’’ Id. The 

reports further explained that these 

covered conditions either involve 

inpatient care or significant continuing 

treatment. See id. (‘‘For example, 

someone who suffers a heart attack 

generally requires both inpatient care at 

a hospital and ongoing medical 

supervision after being released from 

the hospital. * * * Someone who has 

suffered a serious industrial accident 

may require lengthy treatment in a 

hospital and periodic physical therapy 

under medical supervision thereafter.’’). 

Significantly, the committee reports 

characterize covered FMLA conditions 

as ones that are not only serious but also 

cause the employee to be absent from 

work: ‘‘With respect to an employee, the 

term ‘serious health condition’ is 

intended to cover conditions or illnesses 

that affect an employee’s health to the 

extent that he or she must be absent 

from work[.]’’ H. Rep. No. 103–8, at 40; 

S. Rep. No. 103–3, at 28. ‘‘All of these 

health conditions require absences from 

work[.]’’ H. Rep. No. 103–8, at 41; S. 

Rep. No. 103–3, at 29. 

2. Department of Labor Regulations 

(1993–1995) 

The Act, including the definition of 

serious health condition described 

above, was enacted on February 5, 1993. 

Congress gave the Department 120 days 

to promulgate regulations under the 

new statute. See 29 U.S.C. 2654. 

Pursuant to the Act, the Department 

promulgated interim regulations on June 

4, 1993, which became effective August 

5, 1993 (the effective date of the Act). 

The Department then received public 

comments on the regulations and used 

the comments to further refine the 

regulations. Final regulations were 

issued on January 6, 1995. These final 

regulations, adopted pursuant to this 

notice-and-comment rulemaking, 

established the comprehensive 

framework that exists today for 

determining a serious health condition. 

The final rulemaking yielded six 

separate definitions of serious health 

condition that exist today. A statutory 

definition of serious health condition 

that involved only two parts (inpatient 

care or continuing treatment) has thus 

been expanded to six separate and 

distinct regulatory tests for determining 

a serious health condition. Giving 

meaning to the broad and undefined 

statutory term ‘‘continuing treatment’’

presented a daunting task for the 

Department. Moreover, the Department 

had to be careful to ensure the 

definition covered every type of serious 

health condition that Congress intended 

to cover while not extending the Act’s 

protections to those conditions Congress 

intended to exclude. 

The first regulatory definition in the 

regulations is a stand-alone definition 

from the statute—‘‘inpatient care (i.e., 

an overnight stay) in a hospital.’’ This 

is followed by five separate definitions 

for ‘‘continuing treatment,’’ all of which 

also qualify as serious health 

conditions. See 29 CFR § 825.114(a)(1)–

(2). One of these five definitions is 

‘‘incapacity due to pregnancy,’’ which is 

a discrete definition clearly articulated 

in the legislative history (‘‘ongoing 

pregnancy, miscarriages, complications 

or illnesses related to pregnancy, * * * 

the need for prenatal care, childbirth, 

and recovery from childbirth.’’). 

Of the four remaining definitions of 

serious health condition, stakeholders 

have focused significantly on one 

definition:4

(i) A period of incapacity of more than 

three consecutive calendar days * * * 

that also involves: 

(A) Treatment two or more times by 

a health care provider * * * or 

(B) Treatment by a health care 

provider on at least one occasion which 

results in a regimen of continuing 

treatment under the supervision of the 

health care provider. 

29 CFR 825.114(a)(2)(i)(A)–(B). This is 

an objective definition of continuing 

treatment the Department established 

based in part on state workers’

compensation laws and the Federal 

Employees’ Compensation Act 

(‘‘FECA’’), which apply a three-day 

waiting period before compensation is 

paid to an employee for a temporary 

disability. See 60 FR 2180, 2192 (Jan. 6, 

1995). ‘‘A similar provision [to FECA] 

was included in the FMLA rules; a 

period of incapacity of ‘more than three 

days’ was used as a ‘bright line’ test 

based on references in the legislative 

history to serious health conditions 

lasting ‘more than a few days.’ ’’ 60 FR 

at 2192. 

This objective test changed little 

during the rulemaking process despite 

the numerous proposed revisions 

submitted to the Department. These 

comments received in response to the 

interim regulations represented a 

multitude of permissible alternative 

directions the Department might have 

gone with this test, but were rejected as 

the Department adhered to its original 


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standard, which is reflected in the 

current regulations stated above. It is 

worth examining what some of those 

comments were to the original 

rulemaking record to better inform the 

comments received to the current RFI. 

First, several parties contended that 

the period of incapacity—whatever the 

exact length of days—should be judged 

by ‘‘absence from work’’ as opposed to 

calendar days. 60 FR at 2192. Some 

stakeholders to the rulemaking noted 

that the Department’s proposed 

‘‘calendar day’’ rule contradicted the 

legislative intent (reflected in the 

committee reports) that ‘‘the employee 

must be absent from work for the 

required number of days[.]’’ Id. at 2192. 

Another commenter noted that under 

the three-calendar-day rule, employers 

would have no way of verifying 

incapacity because a single absence on 

a Friday followed by a weekend of 

incapacity could qualify as a serious 

health condition. See id. Other 

commenters similarly favored the 

workday schedule because it was more 

compatible with other sick leave and 

short-term disability programs and 

‘‘removes any doubt as to whether an 

employee was otherwise incapacitated 

and unable to work during days the 

employee was not scheduled to work.’’

Id. The Department originally chose 

‘‘calendar days’’ in the interim 

regulations. After receiving comments, 

the Department chose, for two policy 

reasons, to retain calendar days as 

opposed to work days: ‘‘The Department 

has * * * concluded that it is not 

appropriate to change the standard to 

working days rather than calendar days 

because the severity of the illness is 

better captured by its duration rather 

than the length of time necessary to be 

absent from work.’’ Id. at 2195. The 

Department further explained: ‘‘[A] 

working days standard would be 

difficult to apply to serious health 

conditions of family members or to parttime workers [who might be 

incapacitated but not necessarily absent 

from work].’’ Id. 

Second, there was also a broad range 

of suggestions as to what length or type 

of incapacity was appropriate for 

defining a serious health condition. 

Some comments rejected any fixed day 

limitation at all, stating that a minimum 

durational limit had been specifically 

rejected during a committee markup of 

the bill. See id. at 2192. Still others 

suggested that three days was 

‘‘unreasonably low and trivialized the 

concept of seriousness[.]’’ Id. ‘‘Fifteen 

commenters suggested extending the 

three-day absence period to 5, 6, 7, or 

10 days[,] * * * two weeks[,] * * * or 

31 days[.]’’ Id. Other commenters 

suggested eschewing a strict day 

standard in favor of adopting each 

individual state’s waiting period for 

workers compensation benefits or, 

alternatively, the EEOC’s definition of 

disability. See id. at 2193. The 

Department rejected these various 

proposals in favor of its original 

standard: ‘‘Upon review, the 

Department has concluded that the 

‘more than three days’ test continues to 

be appropriate. The legislative history 

specifically provides that conditions 

lasting only a few days were not 

intended to be included as serious 

health conditions, because such 

conditions are normally covered by 

employers’ sick leave plans.’’ Id. at 

2195. 

The Department did make one change 

of note in the definition of serious 

health condition, however. After the 

1993 interim regulations were 

promulgated, several commenters urged 

‘‘clarifications [that would] exclude 

from the definition [of serious health 

condition] minor, short-term, remedial 

or self-limiting conditions, and normal 

childhood or adult diseases (e.g., colds 

flu, ear infections, strep throat, 

bronchitis, upper respiratory infections, 

sinusitis, rhinitis, allergies, muscle 

strains, measles, even broken bones).’’

60 FR at 2193. Still others suggested that 

the Department expressly list every 

ailment that would qualify as a serious 

health condition. See id. While the 

Department declined to provide a 

‘‘laundry list of serious health 

conditions,’’ 60 FR at 2195, we did 

enumerate in the final regulations 

examples of ailments that customarily 

would not be covered by the Act: 

‘‘Ordinarily, unless complications arise, 

the common cold, the flu, ear aches, 

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.’’ 29 CFR 

§ 825.114(c). This language would 

become the subject of much reported 

confusion in the regulated community 

(reflected in, among other things, the 

many comments on this subject 

submitted in response to the RFI). 

3. Wage and Hour Opinion Letters 

In 1995, shortly after the regulations 

became final, the Department provided 

its initial interpretation of the serious 

health condition objective test when 

responding to an employer’s objections 

that the definition in sections 

825.114(a)(2)(i)(A)–(B) did not reflect 

the intent of the Act’s authors. The 

Department’s response reflects an 

ongoing struggle to reconcile this 

objective test in the regulatory 

definition (more than three calendar 

days of incapacity plus treatment) with 

the legislative intent also reflected in 

the regulations that common conditions 

like colds and flus not be covered by the 

Act. 

The Department’s opinion letter 

response in 1995 stated that a minor 

illness such as the common cold could 

not be a serious health condition 

because colds were on the regulatory list 

of non-covered ailments. ‘‘The 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).’’ Wage and Hour 

Opinion Letter FMLA–57 (Apr. 7, 1995). 

More than a year and a half later, 

however, the Department reversed 

course, stating that Wage and Hour 

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[.]’’ Wage and Hour Opinion 

Letter FMLA–86 (Dec. 12, 1996). In the 

second letter, the Department 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 would 

qualify for FMLA leave. Complications, 

per se, need not be present to qualify as 

a serious health condition if the 

objective regulatory tests of a period of 

incapacity of ‘‘more than three 

consecutive calendar days’’ and a 

‘‘regimen of continuing treatment by a 

health care provider’’ are otherwise met. 

See id. In reversing its position in this 

second opinion letter, the Department 

explained that the regulations reflect the 

view that, ordinarily, conditions like the 

common cold and flu would not 

routinely be expected to meet the 

regulatory tests. But such conditions 

could qualify under FMLA where the 

objective tests are, in fact, met in 

particular cases. See id. ‘‘For example, 

if an individual with the flu is 

incapacitated for more than three 

consecutive calendar days and receives 

continuing treatment, e.g., a visit to a 

health care provider followed by a 

regimen of care such as prescription 

drugs like antibiotics, the individual has 

a qualifying ‘serious health condition’

for purposes of FMLA.’’ Id. 


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4. United States Court of Appeals 

Decisions 

Employers challenged the 

Department’s objective regulatory 

definition of serious health condition in 

two U.S. Courts of Appeals. In both 

cases, the regulatory test was upheld as 

a permissible legislative rule pursuant 

to a congressional delegation of 

authority under the Act. See Thorson v. 

Gemini, Inc., 205 F.3d 370 (8th Cir. 

2000); Miller v. AT&T Corp., 250 F.3d 

820 (4th Cir. 2001). The Eighth Circuit 

in Thorson found the statutory term 

‘‘serious health condition’’ was not 

precisely defined in the statute and 

legislative history: ‘‘[W]e do not see 

th[e] legislative history as Congress 

speaking ‘directly’ to the question of 

what constitutes a ‘serious health 

condition.’ ’’ Id. at 381. Thus, the court 

deferred to the Department’s reasonable 

legislative rule implementing the 

statute: ‘‘DOL’s objective test for ‘serious 

health condition,’ which avoids the 

need for employers—and ultimately 

courts—to make subjective decisions 

about statutory ‘serious health 

conditions,’ is a permissible 

construction of the statute.’’ Id. The 

Court acknowledged that this test might 

result in findings of serious health 

conditions for ‘‘minor illnesses’’ that 

Congress did not intend to cover, but 

that ‘‘the DOL reasonably decided that 

such would be a legitimate trade-off for 

having a definition of ‘serious health 

condition’ that sets out an objective test 

that all employers can apply 

uniformly.’’ Id. 

The Fourth Circuit even more 

squarely and directly upheld the 

objective test in the regulations because 

the plaintiff in that case was suffering 

from the flu—an illness listed in the 

regulations at 825.114(c) (reflecting 

legislative history) as an example of an 

illness that is generally not a serious 

health condition. The Fourth Circuit 

directly confronted the tension between 

the objective test and the list of 

ailments: 

There is unquestionably some tension 

between subsection (a), setting forth objective 

criteria for determining whether a serious 

health condition exists, and subsection (c), 

which states that certain enumerated 

conditions ‘‘ordinarily’’ are not serious 

health conditions. Indeed, that tension is 

evidenced by Miller’s illness. Miller was 

incapacitated for more than three consecutive 

calendar days and received treatment two or 

more times; thus, she satisfied the regulatory 

definition of a serious health condition under 

subsection (a). But, the condition from which 

Miller suffered—the flu—is one of those 

listed as being ‘‘ordinarily’’ not subject to 

coverage under the FMLA. 

Id. at 831. The Court concluded—even 

without deferring to the second Wage 

and Hour opinion letter—that 

‘‘§ 825.114(c) is properly interpreted as 

indicating merely that common ailments 

such as the flu will not qualify for 

FMLA leave because they generally will 

not satisfy the regulatory criteria for a 

serious health condition.’’ Id. at 832. 

However, ‘‘[s]ection 825.114(c) simply 

does not automatically exclude the flu 

from coverage under the FMLA. Rather, 

the provision is best read as clarifying 

that some common illnesses will not 

ordinarily meet the regulatory criteria 

and thus will not be covered under the 

FMLA.’’ Id. 

Having concluded the objective test 

was the dispositive one, the Miller 

court, like the Thorson court, upheld 

the regulatory definition as consistent 

with legislative intent. The court noted 

that these regulations were promulgated 

pursuant to an express delegation from 

Congress and should be given 

controlling effect ‘‘unless arbitrary, 

capricious, or manifestly contrary to 

statute.’’ Id. at 833 (quotations omitted). 

The court stated that ‘‘when a regulatory 

choice represents a reasonable 

accommodation of conflicting policies 

that were committed to the agency’s 

care by the statute, we should not 

disturb it unless it appears from the 

statute or the legislative history that the 

accommodation is not one that Congress 

would have sanctioned.’’ Id. (quotations 

omitted). The court held that the 

Department clearly was within its 

statutory purview in this case, stating: 

‘‘Consistent with the statutory language, 

the regulations promulgated by the 

Secretary of Labor establish a definition 

of ‘‘serious health condition’’ that 

focuses on the effect of an illness on the 

employee and the extent of necessary 

treatment rather than on the particular 

diagnosis. This policy decision is 

neither unreasonable nor manifestly 

inconsistent with Congress’ intent to 

cover illnesses that ‘require[ ] that the 

employee be absent from work on a 

recurring basis or for more than a few 

days for treatment or recovery’ and 

involve ‘continuing treatment or 

supervision by a health care provider.’ ’’

250 F.3d at 835 (citations omitted). 

Finally, like the Eighth circuit, the 

Fourth Circuit noted: 

It is possible that the definition adopted by 

the Secretary will, in some cases—and 

perhaps even in this one—provide FMLA 

coverage to illnesses Congress never 

envisioned would be protected. We cannot 

say, however, that the regulations adopted by 

the Secretary are so manifestly contrary to 

congressional intent as to be considered 

arbitrary. 

Id. 

B. Request for Information Comments 

and Recommendations 

The responses to the RFI demonstrate 

that the definition of serious health 

condition continues to be a source of 

concern in the regulated community in 

terms of its scope and its meaning. 

While the Department asked only two 

narrow questions about the objective 

test and the list of ailments, commenters 

to the Request for Information voiced a 

wide array of opinions about the 

regulatory test in general. 

A common theme the Department 

heard from various parties was that the 

regulatory definition of serious health 

condition is vague and/or confusing. 

The American Academy of Family 

Physicians stated: ‘‘The definition of a 

serious health condition within the Act 

creates confusion not only for the 

administrators of the program and 

employers but also for physicians. 

Requiring a physician to certify that a 

gastrointestinal virus or upper 

respiratory infection is a serious health 

condition in an otherwise healthy 

individual is incongruous with medical 

training and experience. * * * 

[Moreover, t]he categories of ‘Serious 

Health Conditions’ are overly 

complicated and * * * contradictory.’’

Doc. FL25, at 1. The American College 

of Occupational and Environmental 

Medicine agreed: ‘‘The term ‘serious 

health condition’ is unnecessarily 

vague. Employees, employers and 

medical providers would be well served 

if the FMLA were to more clearly define 

the criteria for considering a health 

condition serious.’’ Doc. 10109A, at 2. 

Other commenters echoed this same 

concern: ‘‘Uniformly, employers have 

found the definition of ‘serious health 

condition’ and the criteria for 

determining whether or not an 

employee has a ‘serious health 

condition’ to be extremely broad and 

very confusing.’’ ORC Worldwide, Doc. 

10138A, at 2. ‘‘This [serious health 

condition] definition is widely 

considered to be vague and overly 

broad, and has caused unnecessary 

confusion.’’ Florida Power & Light 

Company, Doc. 10275A, at 2. ‘‘What 

constitutes a serious health condition? 

The definition is not clear.’’ City of 

Philadelphia, Doc. 10058A, at 1. ‘‘The 

current definition is so vague that it is 

nearly impossible to define a condition 

that does not qualify as a serious 

medical condition.’’ Northern Kentucky 

Chamber of Commerce, Doc. 10048A, at 

2. 

Commenters often pointed to the 

language in section 825.114(c) regarding 

minor ailments as the primary source of 

definitional confusion. Whereas the first 


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part of the regulatory definition of 

serious health condition in 

subparagraph (a)(2) provides objective 

standards for leave (irrespective of the 

person’s medical diagnosis) in terms of 

‘‘days’’ and ‘‘incapacity’’ and ‘‘health 

care provider’’ visits, this language in 

subparagraph (c) suggests the opposite: 

excluding common illnesses by 

diagnosis/name without regard to 

seriousness. The American Bakers 

Association stated: ‘‘[The definition of 

serious health condition] has also 

caused unnecessary confusion for 

employers who rely on regulatory 

language that states, ‘Ordinarily, unless 

complications arise, the common cold, 

the flu, ear aches, 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.’ 29 

CFR 825.114(c).’’ American Bakers 

Association, Doc. R354A, at 4. The 

Association of Corporate Counsel made 

a similar point: ‘‘[T]he Department 

should clarify its guidance in section 

[825.114](c) on when conditions such as 

the common cold, the flu, earaches, 

upset stomach, minor ulcers, headaches, 

and routine dental or orthodontia 

problems could be considered as serious 

health conditions. The current 

regulation indicates that such 

conditions should not normally be 

considered serious health conditions.’’

Doc. FL31, at 14. 

Overall, it is probably fair to 

characterize the comments from 

employer groups about the regulatory 

definition of ‘‘serious health condition’’

as having written ‘‘serious’’ out of 

serious health condition. For example, 

the University of Minnesota stated: 

The current definition of ‘‘serious health 

condition’’ is broad enough to cover minor 

illnesses that were not intended to be 

covered by the Act. * * * The University’s 

experience indicates that the regulatory tests 

set forth in section 825.114(a) of the FMLA 

regulations renders the limitations in section 

825.114(c) inoperative. Specifically, the test 

set forth in section 825.114(a)(2)(i) (period of 

incapacity lasting more than three days) is 

broad enough to cover minor illnesses, like 

the ones referenced in section 825.114(c). 

Such minor illnesses are regularly the subject 

of FMLA leave requests. Because physician 

certifications seldom use terms like 

‘‘common cold’’, ‘‘upset stomach’’, ‘‘ear 

ache’’, etc., the University does not feel it can 

deny the requests, even when the University 

is convinced the illness is minor. As 

indicated in section 825.114(c), such minor 

illnesses were not intended to be covered by 

the Act. 

University of Minnesota, Doc. 4777A, at 

1–4. ‘‘Please redefine serious medical 

condition to cover truly serious needs, 

not the common flu.’’ Debbie Robbins, 

Human Resources, City of Gillette, Doc. 

5214, at 1. ‘‘[T]he intent of the 

regulations was not to find conditions 

such as the flu, earaches, headaches, 

and upset stomach qualifying; however, 

as a result of DOL opinion letters it is 

practice for FMLA to be granted for 

these conditions when the regulatory 

criteria defining a serious health 

condition [are] met.’’ Carle Clinic 

Association, Doc. 5449A, at 1. ‘‘The 

DOL needs to limit the definition of 

serious health condition to what it was 

originally intended by Congress. For 

example, while a common cold or flu 

were never intended to be serious health 

conditions, in case law courts have 

essentially done away with all the 

exclusions from the original definition 

by stating that ‘complications’ (without 

defining this) could cause virtually 

anything (a cold, an earache, a cut on 

finger) to become a serious health 

condition.’’ Coolidge Wall Co. LPA, 

Doc. 5168, at 1. ‘‘As [the definition of 

a ‘serious health condition’] has been 

interpreted, a common cold or flu bug 

lasting three days creates a FMLA 

qualifying event. * * * As it is, a ‘runny 

nose’ for three days would qualify as 

long as you saw the doctor for it. To call 

a ‘common cold’ a serious health 

condition significantly devalues the 

FML Act.’’ Mark Costa, Human 

Resources Director, Team 1 Michigan, 

Doc. 5172, at 1. ‘‘[T]he current 

Regulations seemingly extend coverage 

to considerably more than just serious 

health conditions and, in practice, the 

general definition often swallows up the 

so-called ‘minor ailment exception.’ ’’

Proskauer Rose LLP, Doc. 10182, at 5. 

‘‘Contrary to what Congress intended, 

the DOL regulation bypasses ‘serious’ in 

‘serious health condition’ by assuming a 

condition is serious if an employee can 

get a physician to certify [that] he/she 

cannot work for three or more days and 

that he/she has seen a health care 

provider at least once and was 

prescribed continuing treatment by that 

health care provider, or that the 

employee has seen a health care 

provider twice regardless of whether 

any continuing treatment was 

prescribed.’’ Southwest Airlines Co., 

Doc. 10183A, at 9. 

The Department also received many 

comments from employees and 

employee groups, however, who felt 

that the objective test is a good, clear 

test that is serving its intended purpose. 

‘‘[T]he current regulations are crafted 

appropriately to provide guidance on 

what constitutes a serious health 

condition without imposing overly rigid 

criteria that could hinder the ability of 

workers to take leave when necessary.’’

National Partnership for Women & 

Families, Doc. 10204A, at 7. ‘‘[N]o 

definition, if it is to be effective, can 

impose precise categories for every 

health condition. The practical reality is 

that serious health conditions will differ 

from person to person. Thus, the 

regulations must necessarily have the 

flexibility to be applied to different 

individual circumstances.’’ Faculty & 

Staff Federation of Community College 

of Philadelphia, Local 2026 of the 

American Federation of Teachers, Doc. 

10242A, at 4. A letter from 53 

Democratic Members of Congress also 

lauded the current definition of serious 

health condition as both expansive and 

flexible. The letter cited congressional 

intent of a ‘‘general test’’ that defines 

serious health condition: ‘‘We urge the 

Department to adhere to that test. 

Ultimately, Congress and the 

Department are not physicians, and we 

cannot evaluate every medical condition 

or necessary course of treatment. The 

presence of a serious health condition is 

something that is readily determined by 

medical professionals[.]’’ Letter from 53 

Democratic Members of Congress, Doc. 

FL184, at 2. ‘‘To protect employers from 

employee abuse of this provision, the 

regulations establish an objective 

criteria to be used to determine whether 

conditions presented qualify for leave. 

This criteria creates a standard that can 

be applied in individual cases with 

sufficient flexibility to adjust for 

differences in how individuals are 

affected by illness. It also specifies that 

routine health matters cannot be 

considered serious health conditions, 

unless complications arise.’’ Families 

USA, Doc. 10327A, at 3. 

The AFL–CIO emphasized that the 

current objective test in the regulations 

best reflects congressional intent to 

cover health conditions that have a 

‘‘serious’’ effect on the individual 

regardless of the label of the impairment 

or illness. See Doc. R329A, at 21–24. 

‘‘The regulations correctly do not define 

serious health condition by relying on 

nonexhuastive [e]xamples of serious 

health conditions that Congress 

provided in the legislative history to the 

Act * * * [but rather by defining] a 

serious health condition as an illness, 

injury or impairment, or physical 

condition that requires either inpatient 

care * * * or continuing treatment by a 

health care provider. * * * [W]e believe 

that the brightline tests set forth in 

Section 825.114(a) continue to provide 

the best means of determining what 

qualifies as a serious health condition.’’

Id. at 22, 24 (quotation marks and 


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citations omitted). The Coalition of 

Labor Union Women concurred: ‘‘Not 

only does this definition establish an 

objective basis for determining when an 

individual employee will and will not 

qualify for leave, but it also recognizes 

that every individual is different and 

thus likely to experience a particular 

medical condition differently from 

others. Our members have described 

various medical problems that affected 

them or their family members and 

reported how many supervisors or 

managers express a biased attitude 

toward these medical conditions based 

on a stereotypical view of the 

condition.’’ Doc. R352A, at 3. Moreover, 

the Communication Workers of America 

provided a relevant example of a worker 

being uniquely affected by a common 

illness: ‘‘An employee of Verizon 

experienced an extreme allergic reaction 

to poison oak which made it impossible 

for her to sit or perform regular job 

functions for a week. The FMLA 

protected her during this period.’’ Doc. 

R346A, at 12–13. 

Finally, the Legal Aid Society pointed 

out that after Wage and Hour Opinion 

Letter FMLA–86 (Dec. 12, 1996), the 

meaning of ‘‘serious health condition’’

should be perfectly clear to the 

regulated community. It simply may not 

be as ‘‘serious’’ as some would like: 

With all due respect, there should not be 

any significant confusion over this definition. 

It is clearly defined in the regulations. 

Perhaps the term ‘‘serious health condition’’

is somewhat of a misnomer because it may 

cause the uneducated employer to assume 

that the medical condition must be 

sufficiently grave to warrant leave. However, 

the educated and compliant employer will be 

familiar with this key regulation. Indeed, the 

regulations make this definition quite clear, 

and should be used as a road map for 

ascertaining whether a medical condition 

constitutes a ‘‘serious health condition’’

within the meaning of FMLA. Moreover, the 

regulations make it perfectly clear that an 

employer is required to ‘‘inquire further’’

should it need more information to make this 

decision. 

The Legal Aid Society-Employment Law 

Center, Doc. 10199A, at 2. 

There was also no shortage of answers 

to the two questions we asked in the 

RFI: whether the limitations in section 

825.114(c) have been rendered 

inoperative by the regulatory tests set 

forth in section 825.114(a), and whether 

there is 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. Below are some of the most 

common answers and suggestions we 

received. 

1. Section 825.114(c) Imposes no 

Independent Limitation on Serious 

Health Condition and Therefore Need 

Not Be Changed 

One common suggestion proffered for 

reconciling sections 825.114(a)(2) and 

(c) is to construe the list of ailments in 

subsection (c) as imposing no 

limitations on the definition of serious 

health condition. ‘‘We do not agree 

* * * that Section 825.114(c) places 

‘limitations’ on Section 825.114(a)’s 

regulatory tests.’’ American Federation 

of Labor and Congress of Industrial 

Organizations, Doc. R329A, at 21. The 

AFL–CIO noted that Congress did not 

express a specific intention to exclude 

‘‘minor illnesses like colds, earaches, 

etc.,’’ but rather to exclude from serious 

health condition only ‘‘short-term 

conditions [whatever named] for which 

treatment and recovery are very brief[.]’’

American Federation of Labor and 

Congress of Industrial Organizations, 

Doc. R329A, at 21 n.34 (quoting S. Rep. 

No. 103–3, at 28). Thus, ‘‘subsection (c) 

[only] clarifies that certain conditions 

are not serious health conditions for 

FMLA purposes unless they meet all of 

the regulatory measures of subsection 

(a). * * * [T]hese examples do not 

modify or limit the objective tests set 

forth in subsection (a)[.]’’ Id. at 23. 

These commenters believe section 

825.114(c) is merely an illustrative list 

of conditions that usually would not 

qualify as serious health conditions, but 

that the objective test is what matters 

and what is applied: ‘‘Section 

825.114(c) of the regulations includes a 

list of conditions that ordinarily would 

not be considered serious health 

conditions, such as the common cold, 

the flu, earaches, or an upset stomach. 

But the regulation on its face also makes 

clear that complications can arise to 

make what is usually a routine health 

matter much more serious.’’ National 

Partnership for Women & Families, Doc. 

10204A, at 8. ‘‘The list of conditions set 

out in 825.114(c) is useful in setting out 

what ‘ordinarily’ would not be a 

qualifying serious health condition[.] 

* * * But the operative word in 

825.114(c) is ‘ordinary.’ While these 

conditions would not ‘ordinarily’

constitute a serious health condition, 

there are extraordinary situations where 

these conditions do just that. In 

determining what those situations are, 

all employers have to do * * * is apply 

‘the general tests’ * * * that were 

incorporated into the Department’s 

regulations at 825.114(a).’’ Association 

of Professional Flight Attendants, Doc. 

10056A, at 2 (citations omitted). ‘‘The 

existing regulations properly define 

‘serious health condition’ by applying 

objective criteria, including the duration 

of an illness and the number of 

treatments, to a worker’s individual 

case, rather than categorically excluding 

any set of health conditions from FMLA 

coverage.’’ Faculty & Staff Federation of 

Community College of Philadelphia, 

Local 2026 of the American Federation 

of Teachers, Doc. 10242A, at 3. ‘‘As long 

as a diagnosis meets the ‘objective 

criteria’ of subsection (a), then 

subsection (c) makes it clear that the 

employee has a ‘serious health’

condition that qualifies for FMLA 

leave.’’ American Federation of Labor 

and Congress of Industrial 

Organizations, Doc. R329A, at 23. 

This view, commenters maintained, is 

the correct interpretation of the Act: 

‘‘The statute itself recognizes the need 

for such flexibility. Congress expressly 

chose to forego excluding any 

conditions from the definition of a 

serious health condition and instead 

defined a serious health condition 

according to objective criteria.’’

Women’s Employment Rights Clinic, 

Golden Gate University School of Law, 

Doc. 10197A, at 5. 

Commenters favoring a flexible 

definition of ‘‘serious health condition’’

generally believed no changes to the 

regulatory definition are necessary. ‘‘In 

light of [our] experience, we do not 

believe that there is any need to retreat 

from the existing regulatory definition 

of a ‘serious health condition.’ ’’

Communication Workers of America, 

Doc. R346A, at 7. ‘‘We urge DOL to 

retain the regulatory language in 29 CFR 

825.114(a) and not to alter those 

provisions so that conditions like 

earaches, flus, and similar illnesses can 

never constitute a serious health 

condition.’’ Women’s Employment 

Rights Clinic, Golden Gate University 

School of Law, Doc. 10197A, at 5. ‘‘We 

strongly oppose any efforts to restrict or 

narrow the definition of a serious health 

condition. The FMLA enables eligible 

workers to take family or medical leave 

for serious health conditions, and its 

regulations establish objective criteria to 

be used to determine whether 

conditions qualify for leave. While the 

regulations set parameters to help define 

serious health conditions, they do not 

include an exhaustive list of conditions 

deemed ‘serious’ or ‘not serious.’ ’’

National Partnership for Women & 

Families, Doc. 10204A, at 7. ‘‘Imposing 

additional requirements on the nature or 

length of treatment, or the duration of 

incapacity, will inevitably exclude, with 

no basis whatsoever, serious medical 

conditions from the ambit of the FMLA. 

The Department should resist making 

any changes in the definition of serious 

health condition.’’ American Federation 


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of Labor and Congress of Industrial 

Organizations, Doc. R329A, at 24. ‘‘I 

strongly oppose any changes to 

eligibility standards that would impose 

additional barriers for workers seeking 

FMLA leave, [and] regulatory revisions 

that would scale back the definition of 

‘serious health conditions’ covered 

under the act[.]’’ Judith Stadman 

Tucker, The Mothers Movement Online, 

Doc. 4766, at 1. ‘‘It is especially 

important to me that the definition of 

‘serious health condition’ is not 

narrowed and that leave remains 

flexible.’’ An Employee Comment, Doc. 

4790, at 1. ‘‘Altering the definition [of 

serious health condition to ten days or 

more] will leave out numerous serious 

conditions from pneumonia to 

appendicitis where a person could be 

treated and be back on the job under 10 

days. We are concerned that altering the 

definition of a serious health condition 

will remove much needed job protection 

for millions of Americans when they 

need it most.’’ Women’s City Club of 

New York, Doc. 10003A, at 1. ‘‘We are 

strongly opposed to any revisions to the 

regulation that would narrow the 

current definition. As the regulation is 

currently written, it adequately 

addresses the fact that some conditions 

(e.g., a head cold) can grow into a 

serious health condition needing 

repeated treatment and an absence from 

work of more than three days.’’

University of Michigan’s Center for the 

Education of Women, Doc. 10194A, at 1. 

‘‘Imposing categorical changes to the 

definition of serious health condition, 

such as increasing the required number 

of days of incapacity, could have a 

devastating impact on employees.’’

Service Employees International Union 

District 1199P, Doc. FL104, at 2. 

2. Section 825.114(c) Should be 

Converted into a Per Se Rule. 

Other commenters took essentially the 

opposite tack: that the congressional 

intent to exclude minor illnesses 

(reflected in section 825.114(c)) has 

been rendered inoperative by the 

objective test and that the Department 

should breathe life into subsection (c) 

by making it more of a per se rule as it 

was interpreted by Wage and Hour 

Opinion Letter FMLA–57 (Apr. 7, 1995). 

Employers were largely in agreement 

that the regulatory list of ailments has 

been rendered inoperative: ‘‘[T]he 

limitations in Section 825.114 (c) have 

been rendered inoperative by the 

regulatory test in Section 825.114(a) 

largely by the interpretation of the 

Department in holding that even minor 

illnesses can meet the definition of 

‘serious health condition.’ ’’ ORC 

Worldwide, Doc. 10138A, at 2. ‘‘Section 

825.114(c) * * * has been rendered 

effectively inoperative by the regulatory 

tests set forth in Section 825.114(a). 

* * * Wage and Hour letter of 

interpretation of December 1996 

expanding ‘serious health condition’ to 

include colds and flu further erodes 

Section 825.114(c)’s potency as a 

brightline standard for what does not 

constitute a ‘serious health condition.’ ’’

U.S. Chamber of Commerce, Doc. 10142, 

at 9. Some commenters pointed to 

legislative history from 1990–1991 that 

shows Congress expressly considered 

ailments like colds and flus and 

intended them not to be covered: 

The bill we are talking about requires 

medical certifications of serious illnesses. We 

are not talking about a child with a cold. We 

are not talking about a parent with the flu. 

We are talking about a child with cancer who 

must have radiation treatments. We are 

talking about an elderly parent recovering 

from a stroke who needs home care. 

Pilchak Cohen & Tice, P.C., Doc. 

10155A, at 8 (quoting Senate hearing). 

These commenters also cited to similar 

words spoken by a co-sponsor of the 

FMLA: ‘‘We’re talking about a seriously 

ill child, not someone who has a cold 

here.’’ Id. at 8 (quoting statement of 

Senator Dodd at Senate hearing). 

This group of stakeholders suggested 

that unless verifiable medical 

complications arise, the health 

conditions in the section 825.114(c) 

list—such as colds and flus—should 

never qualify as serious health 

conditions. ‘‘[T]he easiest solution to 

this dilemma is to rescind opinion letter 

FMLA–86 and carve minor illnesses out 

of section 825.114(c). This carve-out 

should include a list of example 

ailments that do not qualify as serious 

health conditions absent serious 

complications—in much the same way 

opinion letter FMLA–57 attempted to 

do. This list should, at a minimum, 

include the common cold, the flu, 

earaches, an upset stomach, minor 

ulcers, headaches, routine dental or 

orthodontia problems, and periodontal 

disease.’’ Porter, Wright, Morris & 

Arthur LLP, Doc. 10124B, at 2. ‘‘[Fairfax 

County Public Schools] urges the 

department to return to its earlier 

interpretations, which emphasize that 

minor ailments do not qualify as 

‘serious.’ Section 825.114(a) should be 

modified so that it no longer contradicts 

section 825.114(c). * * * Additional 

examples of minor, nonqualifying 

illnesses would be a useful addition to 

this subsection.’’ Fairfax County Public 

Schools, Doc. 10134, at 1. ‘‘[Section] 

825.114(c) should be clarified in that 

even where the common cold results in 

more than three consecutive days of 

missed work or school, it is not 

considered incapacitating or otherwise 

within FMLA’s protections.’’ Pilchak 

Cohen & Tice, P.C., Doc. 10155A, at 9. 

The Pilchak law firm further reasoned 

that if a cold or flu became truly 

incapacitating, ‘‘the illness would 

typically elevate to an ailment that is 

indeed within the FMLA’s 

contemplation. For example, a common 

cold should never be an FMLA 

qualifying condition. However, if it 

progressed to pneumonia, then this is 

the type of incapacitating condition 

within the FMLA’s contemplation.’’ Id. 

at 9. ‘‘The substantive standards of 

section 825.114(a) cannot be maintained 

while giving meaning to section 

825.114(c), and the legislative intent 

that not all conditions are covered 

cannot be secured unless and until 

section 825.114(c) is revised to state 

that, ‘Unless complications arise, the 

common cold, the flu, ear aches, upset 

stomach, periodontal disease, and 

similar conditions are not serious health 

conditions and do not qualify for FMLA 

leave.’ Absent such a revision, the DOL 

must further define other terms in 

Section 825.114(c), such as ‘treatment.’ ’’

Fisher & Phillips LLP, Doc. 10262A, at 

5. ‘‘[W]hen Congress passed FMLA, its 

intent was not to cover short-term 

illnesses where treatment and recovery 

are brief. By listing examples of 

conditions that would generally qualify 

and conditions that would generally be 

excluded, employers could reduce the 

use of FMLA leave for minor conditions 

in which treatment and recovery are 

brief. The Department should generally 

exclude from the list of conditions 

minor conditions such as colds, minor 

headaches, and flu and provide an 

improved definition of ‘chronic 

conditions.’ ’’ National Business Group 

on Health, Doc. 10268A, at 2. See also 

Small Business Administration Office of 

Advocacy, Doc. 10332A, at 4–5 

(collecting various proposals to exclude 

minor illnesses by name). 

3. ‘‘More Than Three Days’’ Of 

Incapacity Should be Changed From 

Calendar Days to Work Days. 

Another suggestion offered to give 

meaning to subsection (c) was to change 

the period of incapacity in the objective 

test from ‘‘calendar’’ days to ‘‘business’’

days. ‘‘The current regulations of the 

Department of Labor allow for protected 

leave when there is a ‘more than threeday incapacity,’ this should be defined 

as a ‘more than three-day absence from 

work.’ ’’ Ken Lawrence, Doc. 5228, at 1. 

‘‘My suggestion is that FMLA leave 

should have a waiting period, just like 

a disability plan. * * * Most truly 

serious health conditions, as defined by 

the act, last longer than 5 consecutive 


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business days and would warrant the 

need for the employee to be absent from 

work.’’ Cheryl Rothenberg, Human 

Resources Specialist, Doc. 4756, at 1. 

‘‘[W]e suggest * * * [u]sing work days, 

rather than calendar days allows the 

employer to have actual knowledge of 

the employee’s incapacity * * * [I]t is 

difficult for the employer to verify 

employee incapacity over the weekend 

or to have knowledge sufficient to know 

that the employee might be in need of 

FMLA leave.’’ Foley & Lardner LLP, 

Doc. 10129A, at 2. ‘‘The current * * * 

‘more than three-day incapacity’ * * * 

should be defined as a ‘more than threeday absence from work.’ ’’ Bob Kiefer, 

Baldor Electric, Doc. 5141, at 1. 

‘‘Redefine a period of incapacity to 

mean a period of more than five work 

days or seven consecutive calendar 

days, instead of the current just more 

than 3 days of ‘incapacity, before an 

employee is qualified for FMLA leave.’’

U.S. Chamber of Commerce, Doc. 

10142A, at 9. ‘‘We recommend that the 

definition be changed to ‘three work 

days.’ Health conditions that occur ‘over 

the weekend’ or other time off should 

* * * not be considered.’’ Lorin 

Simpson, Manager of Operational 

Systems & Labor Relations, Utah Transit 

Authority, Doc. 10249A, at 1. ‘‘[W]e 

request that the Department amend this 

provision to require an absence for a 

specified length of ‘consecutive 

scheduled work days’ rather than 

‘consecutive calendar days.’ Employers 

are most likely to be unaware of 

employees’ sicknesses over a weekend 

so when employees take FMLA leave at 

the beginning of a workweek, this places 

a hardship on employers. With this 

clarification, employers will have 

advance notice of an employee taking 

FMLA leave.’’ National Business Group 

on Health, Doc. 10268A, at 7. ‘‘[I]f the 

three-day standard is maintained, this 

should be defined as three scheduled 

work days[.]’’ The Miami Valley Human 

Resource Association, Doc. 10156A, at 

3. ‘‘I think it would help if the criteria 

for incapacity were 5 work days as 

opposed to three calendar days. * * * 

[Five] days would be consistent with 

most short term disability waiting 

period requirements and with many 

waiting period time frames for 

indemnity payments for workers 

compensation. (Kentucky has a 7 day 

waiting period prior to the start of 

workers comp indemnity payments.)’’

Sharon Pepper, Doc. 5325, at 1. 

4. The ‘‘Treatment Two Or More Times 

by a Health Care Provider’’ Must Occur 

During the Period of Incapacity. 

Many commenters suggested the 

Department maintain the substantive 

language of both regulatory sections but 

explicitly adopt a recent United States 

Court of Appeals interpretation of the 

regulations that the ‘‘treatment two or 

more times by a health care provider’’

in subsection 825.114(a)(2)(i)(A) must 

occur during the period of ‘‘more than 

three days’’ incapacity. See Jones v. 

Denver Pub. Sch., 427 F.3d 1315, 1323 

(10th Cir. 2006) (‘‘[U]nder the 

regulations defining ‘continuing 

treatment by a health care provider,’ the 

‘[t]reatment two or more times’

described in 825.114(a)(2)(i)(A) must 

take place during the ‘period of 

incapacity’ required by 

825.114(a)(2)(i).’’). ‘‘The Regulations 

need to be clarified to state that each 

examination must occur during the 

period of incapacity that has resulted in 

an employee’s absence from work.’’

South Central Human Resource 

Management Association, Doc. 10136, at 

4. ‘‘WMATA proposes that an 

individual’s illness or incapacity require 

the treatments by a health care provider 

to occur during the period of incapacity 

(rather than, for example, weeks later) in 

order to qualify as a serious health 

condition.’’ Washington Metropolitan 

Area Transit Authority, Doc. 10147A, at 

2. ‘‘We urge the Department to * * * 

require the employee or covered family 

member to be treated on two or more 

occasions during the period of 

incapacity and delete the reference to 

treatment on one occasion plus a 

regiment of continuing treatment.’’ The 

Miami Valley Human Resource 

Association, Doc. 10156A, at 3. 

5. The Period of Incapacity Should Be 

Increased From ‘‘More Than Three 

Days’’ to a Greater Number of Days 

A number of stakeholders suggested 

reconciling the two regulatory 

provisions by simply tightening the 

requirements for qualifying for a serious 

health condition under the objective 

test. The primary suggestion (though by 

no means the only one) was to increase 

the minimum number of days an 

employee needs to be incapacitated to 

qualify for a serious health condition. 

Stakeholders suggested changing the 

current regulatory threshold of ‘‘more 

than 3 days’’ to as many as ‘‘10 days or 

more.’’ Miles & Stockbridge, P.C., Doc. 

FL79, at 2. ‘‘I would like to see the 

definition changed to require someone 

to miss work for at least a full week 

before it would qualify as FMLA, 

requiring 4 full days is at least a start.’’

Ed Carpenter, Human Resources 

Manager, Tecumseh Power Company, 

Doc. R123, at 1. ‘‘[We] would 

recommend that the Department expand 

the more than three-day period in 

825.114(a)(2)(i) to more than seven days. 

This would eliminate most minor 

illnesses and would also mirror more 

closely what employers have in their 

short-term and sick leave plans.’’ ORC 

Worldwide, Doc. 10138, at 2. 

‘‘Increasing the time to at least five work 

days would help in eliminating some 

* * * minor illnesses from coverage. 

Thus, the burden on physicians and 

employers would be reduced without 

significant impact upon employees with 

a serious medical situation.’’ American 

Academy of Family Physicians, Doc. 

FL25, at 1. 

Oxbow Mining suggested that 

‘‘ ‘serious health condition’ should be a 

period of incapacity of no fewer than 

ten (10) consecutive work days as 

defined by an individual’s work 

schedule.’’ Doc. 10104, at 1. The Society 

for Human Resource Management and 

the U.S. Chamber of Commerce both 

proposed that the required incapacity 

continue for a minimum of five business 

days or seven consecutive calendar 

days. See Society for Human Resource 

Management, Doc. 10154A, at 4; U.S. 

Chamber of Commerce, Doc. 10142A, at 

9. ‘‘MedStar Health requests that this 

regulatory test be modified to utilize a 

more than five calendar days of 

incapacity requirement.’’ MedStar 

Health Inc., Doc. 10144, at 8. 

‘‘Incorporate a longer period for the time 

of incapacitation to five (5) days.’’ Kim 

Newsom, Personnel Director, Randolph 

County, North Carolina, Doc. 4764, at 1. 

See also Edison Electric Institute, Doc. 

10128A, at 3 (‘‘In order to limit FMLA 

leave to those conditions that are truly 

serious in nature, we believe the 

regulations should require a period of 

incapacity of more than five calendar 

days, the length of a typical workweek, 

before the condition may constitute a 

serious health condition.’’). 

Other stakeholders suggested ranges 

in their comments. Foley & Lardner 

stated the Department should ‘‘extend 

the number of days of incapacity 

required to qualify as a ‘serious health 

condition[ ]’ * * * from the current 

‘more than three day’ period to five, 

seven or ten consecutive work days[, 

which] would exclude most common, 

non-serious conditions, such as flu, 

bronchitis, sinus infections and similar 

common illnesses.’’ Doc. 10129A, at 1. 

The Proskauer Rose law firm advocated 

‘‘the extension of the three-day period of 

incapacity requirement to a five or ten 

day period of incapacity requirement.’’

Doc. 10182, at 6. ‘‘The definition should 

be revised so that the period of 

incapacity is at least five consecutive 

days or the average waiting period 

provided by employer short-term 

disability periods.’’ Detroit Medical 

Center, Doc. 10152A, at 2. 


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5Commenters tended to use the terms 

‘‘unscheduled’’ and ‘‘unforeseeable’’ to mean 

essentially the same thing: arising suddenly and 

with little or no opportunity for advanced notice. 

6Many of the same commenters who expressed 

concerns with unscheduled intermittent leave 

report little or no concerns with scheduled leave, 

even when taken intermittently. Sun Microsystems 

wrote: 

When an employee notifies his/her manager that 

he/she is going out on a planned, intermittent leave 

there is usually an opportunity to: review the 

employee’s revised work schedule needs during 

this leave; identify the work load requirements 

during the leave; and determine the most effective 

way to get the work completed given the available 

resources. This is the optimal scenario whereby the 

employee and his/her manager have the 

opportunity to create a plan that meets both of their 

needs, the needs of other employees and provides 

a smoother transition for the employee. On the 

other hand, unplanned intermittent leave, which 

may be unavoidable with some medical conditions 

is a significantly greater burden on the employer 

and co-workers. 

Doc. 10070A, at 2. See also City of Portland, Doc. 

10161A, at 2 (‘‘An employee who is absent for 

frequent short periods of intermittent leave presents 

far greater challenges, including last minute staffing 

adjustments, abuse of leave issues and negative 

impacts on employee morale.’’). These differences 

are reflected in certain survey results from the 

Society for Human Resource Management, which 

found that ‘‘71 percent of respondents stated that 

they have not experienced challenges in 

administering FMLA leave for the birth or adoption 

of a child [but] 60 percent of SHRM members 

reported that they experienced challenges in 

granting leave for an employee’s chronic 

condition.’’ Society for Human Resource 

Management, Doc. 10154A, at 2. 

IV. Unscheduled Intermittent Leave 

The Department asked several 

questions in the Request for Information 

about the use of the FMLA for 

unscheduled intermittent leave.5 This 

type of leave has long been a matter of 

particular concern for employers and 

employees alike, as shown by previous 

stakeholder input and public 

commentary presented during 

congressional hearings, as well as 

comments filed with OMB concerning 

the costs and benefits of regulations. 

The RFI sought comments on the 

following issues, among others: 

• How the FMLA affects the ability of 

employers to enforce attendance 

policies; 

• Whether unscheduled intermittent 

FMLA leave presents costs or benefits 

different from those associated with 

regularly scheduled leave; 

• Whether the duration of FMLA 

leave affects the manner in which 

employers cover the work of employees 

taking leave; 

• Whether and to what extent 

employees misuse unscheduled 

intermittent leave; 

• How best to accommodate 

employers’ operational concerns and 

employees’ interests in legitimate 

unscheduled intermittent leave; 

• Whether and to what extent 

concerns arise regarding employees not 

providing prompt notice when taking 

unscheduled intermittent leave; 

• Whether and to what extent the use 

of unscheduled intermittent leave 

affects employee morale and 

productivity; and 

• Whether the availability of 

intermittent leave reduces employee 

turnover. 

Based on the number and tone of the 

comments the Department received, 

these questions, along with several 

related issues involving unscheduled 

intermittent leave, remain at the 

forefront of the debate regarding the 

FMLA and its regulations. The 

responses to the RFI generally fall into 

two categories: comments highlighting 

the disruption that unscheduled 

intermittent leave causes in the 

workplace, particularly when that leave 

is taken in a manner perceived by 

employers as ‘‘abusive’’; and comments 

emphasizing the importance of this kind 

of leave for workers with certain types 

of chronic ailments. For example, 

according to one law firm, ‘‘[B]y far, the 

most problematic type of FMLA leave is 

unscheduled, intermittent leave due to 

chronic serious health conditions.’’

Foley & Lardner LLP, Doc. 10129A, at 

3.6 Many employers echoed this view, 

indicating that unscheduled 

intermittent leave due to chronic 

conditions results in decreased 

productivity, is difficult to manage, and 

is ripe for ‘‘misuse.’’ Yellow Book USA 

assessed the effects of unscheduled 

intermittent leave as follows: 

The use of unscheduled, intermittent 

FMLA leave has a drastic negative impact on 

productivity and profits for employers. 

Larger employers, specifically, have a greater 

financial burden. Employers need to add 

additional staff in the Human Resources 

department to track the intermittent absence 

time used. Additionally, employers need to 

hire additional management staff to manage 

the employees on intermittent leave. Larger 

employers are forced to provide training to 

managers on a constant basis. Due to the 

unscheduled nature of intermittent FMLA 

leave, productivity is greatly impacted. The 

costs are many. Employers incur unexpected 

overtime costs, lost sales, missed deadlines, 

additional administrative costs and negative 

employee morale. From my experience, I can 

estimate that 30 intermittent FMLA leaves 

cost the company $40,000 annually. 

Doc. 10021A, at 4; see also National 

Association of Manufacturers, Doc. 

10229A, at 9–10 (‘‘Intermittent leave is 

the point in the FMLA where all the 

unintended harmful consequences of 

the law come together to cause an 

economic nightmare for manufacturers: 

unchallengeable ailments, unassailable 

and unannounced absences, and 

unending burdens with no prospect of 

a remedy.’’). 

Offering a very different perspective, 

many employees and/or their 

representatives commented that 

intermittent leave is expressly permitted 

by the FMLA and that employees who 

experience unscheduled absences due 

to chronic conditions are precisely those 

most in need of the FMLA’s protections. 

The AFL-CIO stated: 

Congress explicitly provided that 

employees have the right to take leave 

‘‘intermittently or on a reduced leave 

schedule when medically necessary.’’ * * * 

The availability of intermittent leave is 

crucial for families who struggle to balance 

work and family demands and is necessary 

for employees who suffer from chronic health 

conditions or who must provide care for 

family members with chronic illnesses. 

Congress’s concern in 1995 for the difficult 

choices employees must make when faced 

with a healthcare crisis is even more relevant 

today: A growing number of employees find 

themselves in the ‘‘sandwich generation,’’

faced with the dual responsibilities of caring 

for children and for elderly parents. 

Doc. R329A, at 30. The Legal Aid 

Society’s Employment Law Center 

shared similar concerns, asking the 

Department to ‘‘please be mindful of the 

employee who, in an ideal world, would 

not suffer from such devastating 

illnesses that wreck havoc on their own 

lives. Employees, too, struggle with 

chronic and episodic illnesses. The 

FMLA was specifically designed to 

provide leave in these instances.’’ Doc. 

10199A, at 5. 

The Association of Professional Flight 

Attendants described chronic health 

conditions typically causing episodic 

periods of incapacity as perhaps the 

most important FMLA issue for its 

members, making the following 

observation: 

Under [the employer’s] no-fault 

absenteeism policy, these shorter, but 

perhaps more frequent and unscheduled 

absences are just as likely (and indeed more 

likely) to result in the kind of threat to an 

employee’s job security that the FMLA was 

designed to protect against * * * But the 

availability of FMLA leave for chronic 

conditions resulting in episodic periods of 

incapacitation is of critical importance to 

flight attendants, in large part because of the 

environment in which they work. 

* * * 

Many workers suffer from a variety of 

incapacitating health conditions—e.g., 

irritable bowel syndrome—that have required 

treatment over a long period of time, for ten 

or more years, and which result in periodic 

incapacitating episodes, but who are 

otherwise fully capable of performing even 

the most rigorous kind of work. It does no 

good to advise these employees, as [the 

employer] does, to apply for block leave 

under 825.114(a). While the employee can be 

expected to experience a number of 


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incapacitating episodes over the course of the 

year (as in the case of migraines), it is 

unlikely that any one episode would last for 

more than three days. But employees who 

suffer from these recurring bouts of the same 

incapacitating health condition (whatever its 

cause) are not like employees who suffer the 

occasional cold or flu. The few absences 

experienced as a result of such common 

illnesses (once every two or three years) are 

unlikely to jeopardize an employee’s job. But 

for the employee who suffers from a chronic 

recurring condition, they could experience 

three or four or even five unplanned absences 

a year, and their jobs could be jeopardized—

but for the enactment of the FMLA. 

Association of Professional Flight 

Attendants, Doc. 10056A, at 7, 9. 

As already mentioned in Chapter I, 

the Department received many 

comments to the RFI from employees 

discussing how they were able to take 

FMLA leave at crucial times in their 

work lives and how critically important 

they viewed the FMLA in providing 

them job security when they needed it 

most. At the same time, the Department 

received many other comments from 

employers discussing their perceptions 

that the FMLA at times creates 

situations where some employees can 

misuse the rights or privileges 

established under the FMLA. In this 

chapter, we address the various issues 

raised in the comments related to 

unscheduled intermittent leave in three 

parts. We begin by providing the 

statutory and regulatory background, 

addressing the concepts of chronic 

serious health conditions, intermittent 

leave, and leave that is not foreseeable. 

Next, we discuss comments concerning 

the workplace consequences of 

unscheduled intermittent leave, 

including scheduling problems where 

employees taking intermittent leave 

provide little or no notice, loss of 

management control resulting from 

perceived employee ‘‘abuse,’’ and the 

impact on employee morale and 

productivity. Finally, we examine 

comments addressing the benefits to 

employees of the availability of 

unscheduled intermittent leave. 

A. Background 

Employers and employees made 

frequent reference in their comments to 

coverage of chronic conditions under 

the definition of serious health 

condition. Both groups recognize that 

chronic conditions are a primary reason 

for unscheduled intermittent absence 

under the FMLA. Three legal concepts 

underpin the debate regarding 

unscheduled intermittent leave: Chronic 

serious health conditions, intermittent 

leave, and leave that is not foreseeable. 

Together, the interaction of these facets 

of the FMLA and its regulations give 

rise to the issues addressed in this 

chapter. 

1. Chronic Serious Health Conditions 

There is no definition or specific 

mention of a ‘‘chronic’’ serious health 

condition in the Act. The House and 

Senate Committee Reports do, however, 

refer to conditions where ‘‘the 

underlying health condition or 

treatment for it requires that the 

employee be absent from work on a 

recurring basis * * * [A] patient with 

severe arthritis may require periodic 

treatment such as physical therapy.’’ H. 

Rep. No. 103–8, at 40 (1991); S. Rep. No. 

103–3, at 29 (1993). Because of this and 

other legislative history, the Department 

created a separate serious health 

condition definition (one of the six 

different definitions mentioned in 

Chapter III, which addresses serious 

health conditions) for ‘‘chronic’’

conditions. The interim 1993 

regulations defined a serious health 

condition, in part, as a condition 

involving ‘‘[c]ontinuing treatment by (or 

under the supervision of) a health care 

provider for a chronic or long-term 

condition that is incurable or so serious 

that, if not treated, would likely result 

in a period of incapacity of more than 

three calendar days.’’ 29 CFR 

825.114(a)(3) (1993). ‘‘Continuing 

treatment’’ was further defined as: 

(1) The employee or family member in 

question is treated two or more times for the 

injury or illness by a health care provider. 

Normally this would require visits to the 

health care provider or to a nurse or 

physician’s assistant under direct 

supervision of the health care provider. 

(2) The employee or family member is 

treated for the injury or illness two or more 

times by a provider of health care services 

(e.g., physical therapist) under orders of, or 

on referral by, a health care provider, or is 

treated for the injury or illness by a health 

care provider on at least one occasion which 

results in a regimen of continuing treatment 

under the supervision of the health care 

provider—for example, a course of 

medication or therapy—to resolve the health 

condition. 

(3) The employee or family member is 

under the continuing supervision of, but not 

necessarily being actively treated by, a health 

care provider due to a serious long-term or 

chronic condition or disability which cannot 

be cured. Examples include persons with 

Alzheimer’s, persons who have suffered a 

severe stroke, or persons in the terminal 

stages of a disease who may not be receiving 

active medical treatment. 

Id. § 825.114(b)(1)–(3). 

The preamble to the interim 

regulations explained the creation of a 

separate ‘‘chronic’’ serious health 

condition that does not involve 

incapacity per se: 

Because the statute permits intermittent 

leave or leave on a ‘‘reduced leave schedule’’

in cases of medical necessity, it is also clear 

that the Act contemplates that employees 

would be entitled to FMLA leave in some 

cases because of doctor’s visits or therapy—

i.e., that the absence requiring leave need not 

be due to a condition that is incapacitating 

at that point in time. Thus, the legislative 

history explains that absences to receive 

treatment for early stage cancer, to receive 

physical therapy after a hospital stay or 

because of severe arthritis, or for prenatal 

care are covered by the Act. Therefore, the 

regulations provide that a serious health 

condition includes treatment for a serious, 

chronic health condition which, if left 

untreated, would likely result in an absence 

from work of more than three days, and for 

prenatal care. 

58 FR 31794, 31799 (June 4, 1993). The 

preamble also explained that for certain 

chronic conditions, continuing 

treatment can include continuing 

supervision, but not necessarily active 

care, by a health care provider: 

For any condition other than one that 

requires inpatient care, the employee or 

family member must be receiving continuing 

treatment by a health care provider. * * * In 

addition, there was concern about persons 

who have serious, chronic conditions such as 

Alzheimer’s or late-stage cancer, or who have 

suffered a severe stroke, who obviously are 

severely ill but may not be receiving 

continuing active care from a doctor. 

Therefore, the rule encompasses such serious 

conditions which are under continuing 

supervision by a health care provider. 

Some may argue that this approach may 

encompass health conditions that are not 

really serious, while others may view the 

approach as excluding certain situations that 

were intended to require the granting of 

FMLA leave. However, the Department 

believes the regulation’s definition is most 

consistent with the statute and legislative 

history. 

Id. 

Under the final 1995 regulations, a 

chronic serious health condition was 

defined as any period of incapacity or 

treatment for such incapacity that: (1) 

‘‘[r]equires periodic visits for treatment 

by a health care provider, or by a nurse 

or physician’s assistant under direct 

supervision of a health care provider’’; 

(2) ‘‘[c]ontinues over an extended period 

of time (including recurring episodes of 

a single underlying condition)’’ and (3) 

‘‘[m]ay cause episodic rather than a 

continuing period of incapacity (e.g., 

asthma, diabetes, epilepsy, etc.).’’ 29 

CFR 825.114(a)(2)(iii)(A)–(C). As 

restructured, the final regulation did not 

retain from the interim regulation the 

requirement that, but for treatment, 

more than three days of incapacity 

would result. Nor did it retain the 

requirement of ‘‘continuing 

supervision’’ by a health care provider, 

instead requiring only ‘‘periodic visits’’


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7Other comments to the RFI suggest that the 

Department arguably has rendered the ‘‘multiple 

treatments’’ component of the definition of serious 

health condition—29 CFR 825.114(a)(2)(v)—

unnecessary. See, e.g., Association of Corporation 

Counsel, Doc. FL31, at 14 (‘‘[T]he inclusion in 29 

CFR 825.114(a)[2](v) of conditions that, if left 

untreated, could become serious is unnecessary and 

should be eliminated. Any period of absence 

needed to receive multiple treatments for a 

condition that could result in a period of incapacity 

for more than three days would likely fall under the 

definition of chronic health condition in section 

(iii). Indeed, the illnesses listed in the regulation 

(cancer, arthritis, and kidney disease) would be 

chronic health conditions.’’); American Academy of 

Family Physicians, Doc. FL25, at 1 (‘‘The categories 

of ‘Serious Health Condition’ are overly 

complicated and, in some cases, contradictory. For 

instance, category 6—‘Multiple Treatments (NonChronic Conditions)’ goes on to list as examples 

chronic conditions like cancer and kidney 

disease.’’). 

to the health care provider. The final 

regulations also created separate 

categories of serious health conditions 

for conditions that are long-term and for 

which treatment is not effective, and for 

conditions that would likely result in a 

period of incapacity in excess of three 

days without treatment. See id. 

§ 825.114(a)(2)(iv)–(v). 

The Department described its 

treatment of chronic conditions as a 

reasonable approach to the unusual 

circumstances that surround chronic 

serious illnesses that often cause only 

episodic periods of incapacity: 

The Department concurs with the 

comments that suggested that special 

recognition should be given to chronic 

conditions. The Department recognizes that 

certain conditions, such as asthma and 

diabetes, continue over an extended period of 

time * * *, often without affecting day-today ability to work or perform other activities 

but may cause episodic periods of incapacity 

of less than three days. Although persons 

with such underlying conditions generally 

visit a health care provider periodically, 

when subject to a flare-up or other 

incapacitating episode, staying home and 

self-treatment are often more effective than 

visiting the health care provider (e.g., the 

asthma sufferer who is advised to stay home 

and inside due to the pollen count being too 

high). The definition has, therefore, been 

revised to include such conditions as serious 

health conditions, even if the individual 

episodes of incapacity are not of more than 

three days duration. 

60 FR 2180, 2195 (Jan. 6, 1995). 

The Department explained in the 

preamble to the final rule the nature of 

the comments received on the interim 

rule that had prompted restructuring the 

portion of the definition addressing 

chronic conditions. Some had 

contended that the duration of the 

absence was not always a valid 

indicator of serious health conditions 

that are very brief (e.g., a severe asthma 

attack that is disabling but requires 

fewer than three days for treatment and 

recovery to permit the employee’s 

return to work), or that the duration is 

simply irrelevant if a condition is 

sufficiently severe or threatening. 

Additional comments contended that 

seriousness and duration do not 

necessarily correlate, particularly for 

people with disabilities; that a fixed 

time limit fails to recognize that some 

illnesses and conditions are episodic or 

acute emergencies that may require only 

brief but essential health care to prevent 

aggravation into a longer term illness or 

injury, and thus do not easily fit into a 

specified linear time requirement; and 

that establishing arbitrary time lines in 

the definition only creates ambiguity 

and discriminates against those 

conditions that do not fit the average. 

See id. at 2192. 

A number of other comments stated 

that the interim rule definition was too 

restrictive and recommended that it be 

expanded to specifically include 

chronic illnesses and long-term 

conditions that may not require 

inpatient care or treatment by a health 

care provider. Other commenters took 

issue with the definition’s 

characterization of ‘‘continuing 

treatment’’ for a chronic or long-term 

condition that is ‘‘incurable,’’

contending that curability is not a 

proper test for either a serious health 

condition or continuing treatment, that 

curability is ambiguous and subject to 

change over time, and that many 

incurable disabilities require continuing 

treatment that has nothing to do with 

curing the condition (e.g., epilepsy, 

traumatic brain injury, and cerebral 

palsy, conditions for which training and 

therapy help restore, develop, or 

maintain function or prevent 

deterioration). See id. at 2193. 

In response to the comments received, 

the Department also modified and 

separated the portion of the interim 

rule’s definition pertaining to long-term 

conditions by deleting the reference to 

the condition being incurable. Instead, 

the Department required that the 

condition involve a period of incapacity 

that is permanent or long-term and for 

which treatment may not be effective, 

but for which the patient is under the 

supervision of a health care provider 

rather than receiving active treatment. 

‘‘Examples include Alzheimer’s, a 

severe stroke, or the terminal stages of 

a disease.’’ 29 CFR 825.114(a)(2)(iv). 

The Department also created a separate 

definition to address serious health 

conditions that are not ordinarily 

incapacitating (at least at the current 

state of the patient’s condition), but for 

which multiple treatments are being 

given because the condition would 

likely result in a period of incapacity of 

more than three consecutive calendar 

days in the absence of medical 

intervention or treatment, and listed as 

example conditions ‘‘such as cancer 

(chemotherapy, radiation, etc.), severe 

arthritis (physical therapy), [and] kidney 

disease (dialysis).’’ Id. § 825.114(a)(2)(v). 

Multiple treatments for restorative 

surgery after an accident or other injury 

were also specifically cited. The 

previous requirement that the condition 

be chronic or long-term was deleted 

from this section because cancer 

treatments, for example, might not meet 

that test if immediate intervention 

occurs. 

Comments received from employers 

in response to the RFI emphasize how 

commonplace chronic conditions have 

become under the FMLA and how 

difficult it is for employers to determine 

or to monitor ‘‘incapacity’’ when selftreatment is involved. See United States 

Postal Service, Doc. 10184A, at 4, 8–9 

(Out of ‘‘1,077,571 instances where 

FMLA leave was requested and 

approved’’ resulting in over 2 million 

hours of protected FMLA leave taken, 

‘‘leave taken intermittently for chronic 

conditions accounts for the largest 

category of FMLA conditions and 

constitutes almost 38% of all FMLA 

cases for 2006.’’); Spencer Fane Britt & 

Browne LLP, Doc. 10133C, at 15 (‘‘Of 

the six situations that fall within the 

current definition of ‘serious health 

condition,’ the ‘chronic’ conditions 

create the most problems for 

employers[.] The Act was never 

intended to cover sporadic absences 

from work on a permanent basis for the 

entire work life of an employee.’’); Brian 

T. Farrington, Esq., Doc. 5196, at 1 

(‘‘The most troublesome part of the 

current regulations is the definition of a 

‘chronic’ health condition. Under the 

current regulation, the only right the 

employer has to challenge or question 

an employee claiming a chronic health 

condition under 29 CFR 

825.114(a)(2)(iii) is to go through the 

process described in 825.307(a). Once 

the existence of the condition has been 

established, the employee can then take 

off any time, with little or no notice, 

claiming a manifestation of the chronic 

condition, and the employer is 

powerless either to verify or control that 

absence.’’).7

2. Intermittent Leave 

The second legal concept central to 

understanding the present debate 

regarding unscheduled intermittent 

leave is the increment in which 

employees may use leave. The Act 

provides for the taking of leave in small 


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blocks, or intermittently, in certain 

situations: 

IN GENERAL.—Leave under subparagraph 

(A) or (B) of subsection (a)(1) shall not be 

taken by an employee intermittently or on a 

reduced leave schedule unless the employee 

and the employer of the employee agree 

otherwise. Subject to paragraph (2), 

subsection (e)(2), and section 103(b)(5), leave 

under subparagraph (C) or (D) of subsection 

(a)(1) may be taken intermittently or on a 

reduced leave schedule when medically 

necessary. The taking of leave intermittently 

or on a reduced leave schedule pursuant to 

this paragraph shall not result in a reduction 

in the total amount of leave to which the 

employee is entitled under subsection (a) 

beyond the amount of leave actually taken. 

29 U.S.C. 2612(b)(1). Although the Act 

specifies that an employee’s FMLA 

leave entitlement shall not be reduced 

‘‘beyond the amount of leave actually 

taken,’’ it does not specify what 

increment can be used to measure that 

amount. As set forth in the final 

regulations: ‘‘There is no limit on the 

size of an increment of leave when an 

employee takes intermittent leave or 

leave on a reduced leave schedule. 

However, an employer may limit leave 

increments to the shortest period of time 

that the employer’s payroll system uses 

to account for absences or use of leave, 

provided it is one hour or less.’’ 29 CFR 

825.203(d). 

Comments submitted before the final 

regulations proposed a variety of 

changes to the rule, but none was 

accepted. Many comments from 

employers ‘‘urged that the taking of 

intermittent leave in increments of one 

hour or less was too burdensome’’ and 

attempted to limit the blocks of leave 

available to minimum amounts such as 

‘‘half-days (four hours) or full days[.]’’

60 FR at 2201. Still other commenters 

suggested ‘‘that the amount of 

intermittent leave available be limited to 

four weeks of the 12 week total available 

in any 12 months.’’ Id. at 2202. The 

Department rejected any minimum 

limitations on intermittent leave beyond 

the units of time captured by an 

employer’s payroll system because ‘‘it 

seemed appropriate to relate the 

increments of leave to the employer’s 

own recordkeeping system in 

accounting for other forms of leave or 

absences.’’ Id. The Department 

explained this position on the basis that 

the statute makes no provision for 

limiting the increment of leave and that 

‘‘otherwise employees could be required 

to take leave in amounts greater than 

necessary, thereby eroding the 12-week 

leave entitlement unnecessarily.’’ Id. 

Moreover, 

[p]ermitting an employer to impose a fourhour minimum absence requirement would 

unnecessarily and impermissibly erode an 

employee’s FMLA leave entitlement for 

reasons not contemplated under FMLA 

. . . . An employee may only take FMLA 

leave for reasons that qualify under the Act, 

and may not be charged more leave than is 

necessary to address the need for FMLA 

leave. Time that an employee is directed by 

the employer to be absent (and not requested 

or required by the employee) in excess of 

what the employee requires for an FMLA 

purpose would not qualify as FMLA leave 

and, therefore, may not be charged against 

the employee’s FMLA leave entitlement. 

Id. at 2236. 

In rejecting a four-hour minimum for 

intermittent leave in the preamble to the 

interim regulations, the Department 

suggested that such a limitation was 

unnecessary. The Department stated: 

‘‘There are other protections for 

employers in the statute; for example, if 

leave is foreseeable, an employee is 

required to try to schedule the leave so 

as not to unduly disrupt the employer’s 

operation[.]’’ 58 FR at 31801. The 

Department further predicted that 

incidents of unscheduled intermittent 

leave would be unusual: ‘‘[I]t is 

considered unlikely that an employee 

would have several short instances of 

intermittent leave on an emergency 

basis which qualify as serious health 

conditions.’’ Id.. Thus, the Department 

did not envision how commonplace 

unscheduled intermittent leave would 

become, at least as is now reflected in 

many of the comments submitted in 

response to the RFI. For example, the 

United States Postal Service reported to 

the Department that, out of 179,370 

FMLA certifications and 2 million days 

of FMLA protected leave in 2006, 

almost 38% of all leaves were chronic 

and intermittent, and ‘‘76.8% of all 

FMLA leave hours associated with a 

chronic condition were unscheduled.’’

Doc. 10184A, at 9. 

3. Leave That Is Not ‘‘Foreseeable’’

The third facet of the FMLA that 

contributes to the issues concerning 

unscheduled intermittent leave is the 

concept of leave that is not 

‘‘foreseeable.’’ The Act expressly 

provides than an employee must give 30 

days notice if the need for FMLA leave 

is foreseeable. If 30 days’ notice is not 

possible, the employee must give ‘‘such 

notice as is practicable.’’ 29 U.S.C. 

2612(e)(2)(B). 

The Department’s regulations on 

foreseeable leave mirror this language: 

An employee must provide the employer at 

least 30 days advance notice before FMLA 

leave is to begin if the need for the leave is 

foreseeable based on an expected birth, 

placement for adoption or foster care, or 

planned medical treatment for a serious 

health condition of the employee or of a 

family member. If 30 days notice is not 

practicable, such as because of a lack of 

knowledge of approximately when leave will 

be required to begin, a change in 

circumstances, or a medical emergency, 

notice must be given as soon as practicable. 

29 CFR 825.302(a). The regulations then 

define ‘‘as soon as practicable’’ to mean 

‘‘as soon as both possible and practical, 

taking into account all of the facts and 

circumstances in the individual case.’’

Id. § 825.302(b). In the case of 

‘‘foreseeable leave where it is not 

possible to give as much as 30 days 

notice, ‘‘as soon as practicable’’

ordinarily would mean at least verbal 

notification to the employer within one 

or two business days of when the need 

for leave becomes known to the 

employee.’’ Id. The regulations on 

unscheduled leave similarly require that 

‘‘an employee should give notice to the 

employer of the need for FMLA leave as 

soon as practicable under the facts and 

circumstances of the particular case.’’

Id. § 825.303(a). As with foreseeable 

leave where 30 days notice is not 

possible, ‘‘it is expected that an 

employee will give notice to the 

employer within no more than one or 

two working days of learning of the 

need for leave, except in extraordinary 

circumstances where such notice is not 

feasible.’’ Id. 

Some courts have found the 

Department’s regulations difficult to 

interpret: 

Except for the 30-day notice provision, [the 

regulations] do not clearly explain when 

leave is viewed as ‘‘foreseeable’’ or 

‘‘unforeseeable.’’ For example, if an 

employee learns of the need for leave only a 

day before the workday begins is the need for 

leave viewed as ‘‘foreseeable’’ or 

‘‘unforeseeable’? What about a half-day? Or 

just two hours? 

Spraggins v. Knauf Fiber Glass, 401 F. 

Supp. 2d 1235, 1239 (M.D. Ala. 2005); 

see also Cavin v. Honda of Am. Mfg., 

Inc., 346 F.3d 713, 719 (6th Cir. 2003) 

(‘‘The regulations do not so explicitly 

discuss employer notice procedures in 

the context of an employee’s 

unforeseeable need for leave, noting 

only that when an employee requires 

emergency medical leave, an employer 

cannot require advance written notice 

pursuant to its internal rules and 

procedures.’’). 

In a January 15, 1999 opinion letter 

deriving from the regulatory language 

discussed above, the Department 

rejected an employer’s attendance 

policy that ‘‘assess[ed] points against an 

employee who fails to report within one 

hour after the start of the employee’s 

shift that the employee is taking FMLA 

intermittent leave, unless the employee 


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8As one commenter stated, ‘‘Not only are 

employers’’ routine call-in procedures subordinated 

to the FMLA rule allowing notice ‘within one or 

two working days of learning of the need for leave’

(29 CFR 825.303(a)), another provision of the FMLA 

regulations, 29 CFR 825.208(e)(1), expands the time 

period to allow an employee to notify the employer 

that his or her absence was FMLA-protected up to 

two days after returning to work, even if the 

employee could have followed normal call-in 

procedures or provided notice earlier. This is 

another procedure that makes no sense in the 

context of intermittent leave for a chronic 

condition.’’ National Association of Manufacturers, 

Doc. 10229A, at 12. 

is unable to report the absence due to 

circumstances beyond the employee’s 

control.’’ Wage and Hour Opinion Letter 

FMLA–101 (Jan. 15, 1999). The 

Department deemed this policy noncompliant, stating: 

The company’s attendance policy imposes 

more stringent notification requirements than 

those of FMLA and assigns points to an 

employee who fails to provide such ‘‘timely’’

notice of the need for FMLA intermittent 

leave. Clearly, this policy is contrary to 

FMLA’s notification procedures which 

provide that an employer may not impose 

stricter notification requirements than those 

required under the Act (§ 825.302(g)) and that 

FMLA leave cannot be denied or delayed if 

the employee provides timely notice (under 

FMLA), but did not follow the company’s 

internal procedures for requesting leave. 

Id. The letter went on to provide 

guidance regarding how the notice 

provision works: 

For example, an employee receives notice 

on Monday that his/her therapy session for 

a seriously injured back, which normally is 

scheduled for Fridays, must be rescheduled 

for Thursday. If the employee failed to 

provide the employer notice of this 

scheduling change by close of business 

Wednesday (as would be required under the 

FMLA’s two-day notification rule), the 

employer could take an adverse action 

against the employee for failure to provide 

timely notice under the company’s 

attendance control policy. 

Id. 

As a result of this letter, an employee 

must now be allowed two full days to 

report an unscheduled absence 

regardless of the facts and 

circumstances of the employee’s 

individual case.8 What began as an 

illustrative outer limit of one or two 

working days notice by the employee to 

the employer of the need for leave has 

in effect evolved into the rule that an 

employee with a chronic condition can 

miss work without notifying the 

employer in advance of the need for 

leave and, in fact, notify the employer 

of this event two days later. ‘‘[The 

regulatory notice provisions have] been 

applied by the Department * * * to 

protect employees who provide notice 

within two days, even if notice could 

have been provided sooner under the 

particular facts and circumstances.’’

National Coalition to Protect Family 

Leave, Doc. 10172A, at 27. 

B. Workplace Consequences of 

Unscheduled Intermittent Leave 

The comments received in response to 

the RFI reflect the tension and 

complexity surrounding the workplace 

issues related to unscheduled 

intermittent leave: tension because these 

issues ultimately require striking the 

appropriate balance between an 

employee’s ability to take job-protected 

leave due to unforeseen circumstances 

and an employer’s ability to schedule its 

work; complexity because reaching that 

balance also involves considering, at a 

minimum, the FMLA’s notice 

provisions, the definition of ‘‘chronic’’

serious health condition, the minimum 

permissible leave increments, and the 

interaction between the FMLA and an 

employer’s own attendance-related 

policies. 

The Society for Human Resource 

Management commented on the effect of 

unscheduled intermittent leave on 

employers: 

Intermittent leave initially was intended to 

permit scheduled leave for planned medical 

treatments or physical therapy. Since the 

FMLA’s enactment, however, regulatory 

interpretations of a ‘‘serious health 

condition’’ have brought many chronic 

conditions under that umbrella, thus 

enabling some employees to expand FMLA 

protections to the point of abuse * * * For 

instance, if an employee is approved for 

intermittent FMLA leave related to a chronic 

episodic condition for which there is no date 

certain when leave will be needed (arthritis 

and allergies), the employee may take 

unscheduled leave whenever s/he likes 

without further medical substantiation that 

the condition actually incapacitated the 

employee on each leave date. Under this 

frequent scenario, the employer has no 

ability to require confirmation that the 

employee was actually ill each time leave is 

taken. Conversely, if an employee attempts to 

take sick leave for a non-FMLA qualifying 

condition, the employer can require medical 

substantiation for each absence and can 

discipline the employee if medical or other 

substantiation for each absence is not 

provided, specifically based on employer 

policies. 

Doc. 10154A, at 8. 

In contrast, the comments submitted 

to the RFI on behalf of employee 

representatives suggested a markedly 

different view. For example, the AFL–

CIO stated: 

[T]he regulations currently permit 

employers to discipline employees, even 

when they are eligible for leave, if they fail 

to follow the rules. Employees are required 

to make reasonable efforts to schedule 

intermittent leave so as not to ‘‘disrupt 

unduly the operations of the employer.’’ 29 

U.S.C. 2612(e)(2)(a); 29 CFR 825.117. 

Employees must also give advance notice of 

thirty days before taking leave, or at least give 

notice as soon as practicable. 29 U.S.C. 

2612(e)(2)(b) (2002); 29 CFR 825.302 (a)–(b). 

If an employee could have given proper 

notice but did not, the employer may delay 

the commencement of leave for thirty days 

until after notice. See Gilliam v. United 

Parcel Serv., Inc., 233 F.3d 969, 971 (7th Cir. 

2000) (employer entitled to delay leave 30 

days where employee did not give notice of 

intent to take paternity leave until day after 

child’s birth). See also Kaylor v. Fannin Reg’l 

Hosp., Inc., 946 F. Supp. 988, 998 (1996) (‘‘It 

is plaintiff’s failure to adhere to the FMLA 

procedures for informing his employer of 

intermittent leave that is ultimately fatal to 

his claim.’’). An employer may deduct points 

under an attendance control policy from an 

employee who could have given advance 

notice and failed to comply with FMLA 

regulations. Dep’t of Labor Op. Ltr. FMLA–

101 (Jan. 15, 1999). 

* * * 

There is no empirical evidence of 

widespread abuse of intermittent leave, and 

the current regulations provide employers 

with procedures to ensure that only eligible 

employees take intermittent leave, that the 

leave taken is medically necessary, and that 

leave is scheduled at convenient times and 

as far in advance as possible. 

Doc. R329A, at 33. 

The comments in response to the RFI 

focused on the following workplace 

consequences of unscheduled 

intermittent leave: (1) Scheduling 

problems caused by employee absences 

with little or no notice, (2) loss of 

management control, and (3) impact on 

employee morale and productivity. We 

address these issues in turn. 

1. Scheduling Problems Where 

Employees Taking Intermittent Leave 

Provide Little or No Notice 

A number of comments identify the 

root of the problems with unscheduled 

intermittent leave as the Department’s 

interpretation of the notice requirement, 

particularly the amount of notice an 

employee must give to his or her 

employer when the employee seeks 

FMLA protection for unscheduled leave. 

See, e.g., Southwest Airlines Co., Doc. 

10183A, at 6–7; College and University 

Professional Association for Human 

Resources, Doc. 10238A, at 7–8. 

As mentioned above, Wage and Hour 

Opinion Letter FMLA–101 interpreting 

the regulations at 29 CFR 825.302 and 

825.303 has given rise to an 

understanding in the regulated 

community that employers (1) are 

prevented from disciplining any 

employee for failing to comply with a 

policy that requires advance notice of 

the need for leave and (2) are required 

to treat leave as FMLA-protected as long 

as the employee provides the employer 

with ‘‘notice’’ within two days after the 


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absence. As explained by the National 

Coalition to Protect Family Leave: 

The phrase ‘‘as much notice as is 

practicable’’ is not well-defined. The current 

phrase puts employers in the difficult 

position of having to approve leaves where 

questionable notice has been given. The 

current regulatory definition—within one or 

two business days—has been applied by the 

Department to both foreseeable and 

unforeseeable leaves, and to protect 

employees who provide notice within two 

days, even if notice could have been 

provided sooner under the particular facts 

and circumstances. See Opinion Letter No. 

101 (FMLA) (1/15/99) (proposed attendance 

policy, which would require employees 

taking intermittent FMLA leave to report 

absence within one hour after start of 

employee’s shift unless employee was unable 

to do so because of circumstances beyond 

employee’s control, violated FMLA because 

employees have two days to notify employer 

that absence is for FMLA-covered reason). 

National Coalition to Protect Family 

Leave, Doc. 10172A, at 27. See also 

Temple University, Doc. 10084A, at 6. 

Employer commenters to the RFI were 

nearly unanimous in their 

understanding that the FMLA permits 

an employee to wait until two days after 

an absence to advise his or her employer 

of the need for FMLA leave. This 

understanding, according to the 

commenters, combines with other 

issues—e.g., the definition of serious 

health condition, the minimum period 

for intermittent leave, and the inability 

to request additional medical 

information—to create a situation where 

employers lose much of their ability to 

manage their business: 

The DOL regulations at 29 CFR 825.203 

require employers to permit employees to 

take leave in the ‘‘shortest period of time the 

employer’s payroll system uses to account for 

absences of leave, provided it is one hour or 

less.’’ Many employers have payroll systems 

capable of accounting in increments as small 

as six minutes. Tracking FMLA leave in such 

small increments is extremely burdensome—

particularly with respect to exempt 

employees, whose time is not normally 

tracked. In addition, CUPA–HR members 

have had difficulties scheduling around 

intermittent leave because it is hard to find 

a replacement worker for small increments of 

time and the regulations do not require 

employees to provide any advance notice of 

the need for leave. The DOL Opinion Letter 

FMLA–101 (January 15, 1999) exacerbates 

this problem by stating that an employer 

must accept notice of need for leave up to 

two days following the absence. These 

problems are evidenced by the overwhelming 

majority of respondents to our membership 

survey that reported problems with FMLA 

administration. More than 80 percent of 

respondents reported problems with tracking 

intermittent leave and close to 75 percent 

reported problems with notice of leave and 

unscheduled absences. 

College and University Professional 

Association for Human Resources, Doc. 

10238A, at 7–8. 

Throughout the comments, employers 

explained why they believe the ‘‘two 

day rule’’ is impractical and tantamount 

to eliminating the ability of employers 

to adequately staff their shifts and/or 

discipline employees for violating 

standard workplace rules. The ‘‘two day 

rule’’ is thus described as unworkable: 

[T]he DOL’s informal practice of allowing 

employees to give their employers notice of 

FMLA leave up to two business days after the 

fact facilitates abuse * * * [T]his ‘‘two-day’’

practice of the DOL is also an arbitrary, 

unreasonable standard[.] * * * The DOL’s 

two-day notice practice is not a promulgated 

regulation or rule, and indeed the DOL’s 

practice conflicts with the FMLA and DOL’s 

own regulations[.] * * * The DOL’s informal 

two-day notice practice improperly allows an 

employee to remain silent and provide no 

notice to his/her employer for up to two full 

business days, even when the employee has 

the knowledge and means to give timely 

notice to their employer. As such, the DOL’s 

informal two-day notice practice is an 

arbitrary standard that fails to recognize an 

employer’s legitimate operational need for 

timely notice and that contradicts with an 

employee’s statutory duty to provide such 

notice as is practicable. 

Southwest Airlines Co., Doc. 10183A, at 

6–8. 

Employers also identified as an area 

of concern the closely related issue of 

their inability to enforce routine call-in 

procedures. Section 825.302(d) of the 

regulations, which addresses the issue 

of advanced notice in the context of 

foreseeable leave, provides: 

An employer may also require an employee 

to comply with the employer’s usual and 

customary notice and procedural 

requirements for requesting leave. For 

example, an employer may require that 

written notice set forth the reasons for the 

requested leave, the anticipated duration of 

the leave, and the anticipated start of the 

leave. However, failure to follow such 

internal employer procedures will not permit 

an employer to disallow or delay an 

employee’s taking FMLA leave if the 

employee gives timely verbal or other notice. 

29 CFR 825.302(d). 

A comment from Wolf, Block, Schorr 

and Solis-Cohen identified what it 

believes to be the problems associated 

with section 825.302(d): 

Another area of FMLA abuse involves the 

DOL regulations’ limits on an employer’s 

ability to require employees to comply with 

their customary call-out procedures. This is 

of particular concern for employees taking 

intermittent leave. 

* * * 

[Section 825.302(d)] has been interpreted 

by the DOL to limit an employer’s ability to 

impose a call-in procedure (e.g. requiring 

employees to call in and report their absence 

within 1 hour of their start time) on 

employees who are absent from work for an 

FMLA related reason where the call-in 

procedure is more onerous [than] the verbal 

and written notice procedures set forth in 29 

CFR §825.303. The inability of an employer 

to insist that employees on FMLA leave 

comply with a call-in procedure, such as in 

the previous example, invites abuse from 

employees who are medically approved for 

intermittent FMLA leave and, subsequently, 

give their employer little or no notice leading 

up to their sporadic absences. 

Wolf, Block, Schorr and Solis-Cohen, 

Doc. 10093A, at 2. 

Employers asserted that the call-in 

procedures, which are enforced 

routinely outside the FMLA context, are 

often critical to an employer’s ability to 

ensure appropriate staffing levels. The 

Ohio Department of Administrative 

Services commented that: 

Many state agencies have a call-in procedure 

that requires employees to personally call 

within a certain period of time prior to the 

shift if they will be unexpectedly absent that 

day. For agencies that employ this procedure, 

the advanced ‘‘call-in’’ serves as a crucial 

element of their attendance program, and 

enables the agency to adjust schedules and 

personnel to cover the absent worker’s duties 

and responsibilities. This procedure is 

especially critical in institutional agencies 

that provide direct care and supervision of 

inmates or patients. 

Doc. 10205A, at 3. 

Employer commenters, however, were 

clear in their belief that the 

Department’s interpretations have 

severely limited those employers who 

need to know in advance of any absence 

and have opened the door for misuse of 

FMLA leave: 

[T]he current FMLA regulations reduce the 

effectiveness of [call-in procedures], as 

agencies are prohibited under the regulations 

from requiring advance notice of the 

employee’s need for FMLA leave. Once an 

employee receives a certification for an 

ongoing chronic condition, leave can be 

taken on numerous occasions intermittently 

for the same condition and without advance 

notice. * * * This restriction leads to a 

greater potential for abuse, as employees may 

be tempted to use their certifications to 

justify tardiness. Current FMLA regulations 

require an employee to give notice of the 

need for FMLA leave ‘‘as soon as is 

practicable,’’ which usually means within a 

day or two of learning of the need for leave. 

Id. See also National Association of 

Manufacturers, Doc. 10229A, at 4, 12 

(‘‘65 percent of the requests received for 

intermittent leave were made either on 

the day of the leave, after the leave was 

taken, or without any notice. * * * 

[E]mployees with unscheduled 

intermittent leave routinely ignore 

mandatory shift call-in procedures (even 

if they are fully able to comply), wait 

two working days, as permitted by 29 


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9Cases addressing employer policies have 

involved three types of employer policies. The first 

group involves employer policies requiring the 

employee to report an absence within a specific 

time frame (frequently one hour prior to the start 

of the employee’s shift). These types of employer 

policies present the clearest potential for conflict 

with the FMLA notice regulations. Compare 

Spraggins v. Knauf Fiber Glass GmbH, Inc., 401 

F.Supp. 2d 1235 (M.D. Ala. 2005) (holding that 

employer could enforce rule requiring employees to 

call in one hour prior to their shift unless it was 

impracticable for them to do so), with Mora v. 

Chem-Tronics, Inc., 16 F.Supp. 2d 1192 (S.D. Cal. 

1998) (holding that employer’s policy requiring 

employees to call 30 minutes prior to the start of 

their shift, regardless of circumstances, conflicts 

with FMLA notice provision). The second group 

involves employer policies requiring employees to 

call a specific office or individual to report an 

absence. See infra (discussion of Cavin v. Honda of 

Am. Mfg., Inc., 346 F.3d 713 (6th Cir. 2004), and 

Bones v. Honeywell Int’l, Inc., 366 F.3d 869 (10th 

Cir. 2004)). The final group of cases involves 

employer policies applied during the course of an 

employee’s FMLA leave. See, e.g., Callison v. City 

of Philadelphia, 430 F.3d 117 (3d Cir. 2005) 

(upholding application of employer policy 

requiring employees on paid sick leave to call in 

when leaving home); Lewis v. Holsum of Fort 

Wayne, Inc., 278 F.3d 706 (7th Cir. 202) (upholding 

application of three-day no-call/no-show rule); 

Gilliam v. UPS, 233 F.3d 969 (7th Cir. 2000) 

(upholding application of three-day no-call rule). 

CFR 825.303(a), and then report their 

absence as FMLA-qualifying’’). 

Wage and Hour Opinion Letter 

FMLA–101, discussed above, allows 

employers to discipline employees for 

failure to follow employer notice 

policies only where those policies are 

less stringent than the FMLA’s notice 

requirements. 

The employer, however, could impose a 

penalty, i.e., assign points under its 

customary attendance control policy, in a 

situation where the employee was in the 

position of providing advance notice, absent 

extenuating circumstances, of the need for 

FMLA leave and failed to provide the notice 

in accordance with FMLA’s requirements 

and the company’s notification policy, if less 

stringent than FMLA’s. Under this 

circumstance, the provisions of § 825.302(d) 

would not apply because of the employee’s 

failure to provide timely notice based upon 

FMLA’s requirements (§§ 825.302(a) and (b)). 

Wage and Hour Opinion Letter FMLA–

101 (Jan. 15, 1999). 

This issue of an employer’s ability to 

enforce its own notice policies for 

employees taking leave has been 

litigated in the federal courts with 

varying results.9 Two appellate courts 

have addressed whether the application 

of employer policies requiring 

employees to notify a specific 

individual or office when requesting a 

leave of absence violates the FMLA and 

have reached differing results. In Cavin 

v. Honda of America Manufacturing, 

Inc., 346 F.3d 713 (6th Cir. 2003), the 

U.S. Court of Appeals for the Sixth 

Circuit addressed an employer policy 

requiring an employee to formally 

request a leave of absence from a 

specified department within three 

workdays of the first day missed. The 

employee called daily to report his 

absences to the employer’s security 

office, but failed to comply with the 

requirement to notify the correct 

department of his need for a leave of 

absence in a timely manner. The Sixth 

Circuit concluded that the employer’s 

policy did not comply with the FMLA, 

holding that ‘‘employers cannot deny 

FMLA relief for failure to comply with 

their internal notice requirements’ as 

long as the employee gives timely notice 

pursuant to the FMLA. Id. at 723. In 

denying the employer’s ability to 

enforce its workplace rule, the court 

determined that ‘‘[i]n permitting 

employers to develop notice procedures, 

the Department of Labor did not intend 

to allow employers in effect to 

undermine the minimum labor standard 

for leave.’’ Id. at 722. 

In Bones v. Honeywell Int’l., Inc., 366 

F.3d 869 (10th Cir. 2004), the Tenth 

Circuit took a different approach, 

allowing an employer to enforce its own 

internal requirements governing whom 

an employee must contact regarding her 

absence. In Bones, the employee was 

terminated because she failed to report 

to work or to call her supervisor for 

three days. On the second day of her 

absence, she requested a leave of 

absence from the employer’s medical 

department; the employer’s policy, 

however, expressly stated that 

employees were required to follow the 

call-in procedure and that contacting 

the medical department was not 

sufficient. Id. at 875. The court did not 

directly address whether the employee 

had provided sufficient notice under the 

FMLA, finding that the issue had been 

waived. Id. at 877. The court went on 

to note, however, that ‘‘Bones was 

terminated because she did not comply 

with Honeywell’s absence policy; she 

would have been terminated for doing 

so irrespective of whether or not these 

absences were related to a requested 

medical leave.’’ Id. at 878. 

2. Loss of Management Control 

Employers commented frequently 

regarding what they see as the difficulty 

in maintaining control over the 

workplace when, in the employers’ view 

at least, employees ‘‘abuse’’

unscheduled intermittent leave in order 

to achieve some privilege or advantage 

to which they are not entitled. See, e.g., 

National Association of Manufacturers, 

Doc. 10229A, at 4 (‘‘As currently 

interpreted by DOL, the FMLA has 

become the single largest source of 

uncontrolled absences and, thus, the 

single largest source of all the costs 

those absences create: missed deadlines, 

late shipments, lost business, temporary 

help, and over-worked staff.’’). The 

commenters assert that because 

employers’ ability to use call-in 

procedures and other attendance control 

mechanisms is severely limited where 

the FMLA is involved, and because the 

FMLA allows few options for 

determining whether a specific instance 

of leave use is appropriate, situations 

arise where certain employees do as 

they wish, ignoring the employers’

rules, schedules, and staffing decisions. 

As described by one attorney: 

In my practice, by far the biggest problem 

we face with the FMLA is intermittent leave 

* * * These employees typically use their 

intermittent leave in small increments dayto-day. Especially when based on the need to 

care for others or highly subjective factors, 

this leave is neither scheduled in advance 

nor susceptible of being scheduled. The end 

result is employees who, under the auspices 

of FMLA, we must * * * allow to come and 

go as they please without any regard for our 

business needs. From both a legal and 

practical point of view, the employer is at the 

mercy of the employee. As a practical matter, 

there is no effective or legally ‘‘safe’’ way for 

an employer to regulate or verify the 

legitimacy [of] an employee’s use of 

intermittent leave. 

Peter Wright, Esq., Doc. 4760, at 1. 

One employer made the following 

observation: 

The most difficult and burdensome part of 

the FMLA is the intermittent FMLA. Many 

employees will request FMLA as soon as they 

are placed in the discipline system for 

attendance. Health care providers will 

complete the forms for some for any reason 

the employee requests. The provider does 

this in such a vague manner i.e. ‘‘chronic 

condition, unknown or lifetime length, 

unknown frequency that may prevent them 

from coming to work, may cause them to be 

late leave early or not be able to attend 

without notice.’’ This gives the employee the 

right to come and go as they please without 

giving the company the right to question or 

discipline. 

FNG Human Resources, Doc. FL13, at 2. 

Although not strictly limited to 

unscheduled intermittent leave use, a 

number of comments noted that 

employers cannot enforce their 

attendance policies—particularly ‘‘no 

fault’’ attendance policies—against 

employees on FMLA leave, which 

results in inconsistent treatment of 

those absent for non-FMLA-qualifying 

reasons. The Society for Human 

Resource Management summarized the 

issue: 

Moreover, some employers’ sick or 

personal leave policies penalize repeated 

absences, even illness-related absences, 

which do not qualify for FMLA protection. 

(These are commonly called ‘‘no-fault’’

policies.) For a non-FMLA qualifying 


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10Several comments, in making this point, noted 

that it is possible for a ‘‘full-time’’ employee to use 

FMLA leave intermittently under these 

circumstances and not exhaust his or her yearly 

leave entitlement. For example, 12 weeks times 40 

hours per week = 480 hours of intermittent FMLA 

leave entitlement per year, divided by 52 weeks = 

9.2 hours of intermittent FMLA leave per week, 

divided by 5 days per week = 1.8 hours per day. 

condition, the employer can discipline and 

even terminate an employee who is 

repeatedly absent. This follows from the 

principle that regular attendance is generally 

required of every job and is essential to 

productive and smooth operations. With an 

FMLA-qualifying condition, however, the 

employer may not discipline the employee 

for any absences, no matter how frequent, 

unless and until the employee’s leave 

entitlement is exhausted. 

Society for Human Resource 

Management, Doc. 10154A, at 8. 

The Edison Electric Institute was able 

to quantify the effect this position (and 

other FMLA-related positions) has had 

on its attendance: 

In the year 1987 our sick leave usage 

averaged 89.2 hours per employee. In 1990 

we implemented a No-Fault Modified 

Attendance Policy (point system) to control 

employee attendance. After the policy was in 

place for three years the sick leave usage 

dropped 70% (from 89.2 hours to 27.2 

hours). However, since FMLA went into 

effect in 1993, sick leave usage has steadily 

increased each year. At the end of 2006 the 

average hours used per employee escalated to 

78.2. This is a 188% increase over a thirteen 

year period. * * * We attribute most of this 

increase to the FMLA. Under the existing 

regulations 29 CFR 825.220(c) employers 

cannot use the taking of FMLA leave as a 

factor in employment actions, i.e., No-Fault 

Attendance policies. 

Edison Electric Institute, Doc. 10010A, 

at 1. 

The types of scenarios identified by 

employers as subject to ‘‘abuse’’ through 

the improper use of unscheduled 

intermittent leave include, among other 

things: (1) Employees using leave to 

cover for simple tardiness or a desire to 

leave work early, and (2) employees 

seeking to alter their work schedule 

through securing a different shift. 

a. Arriving Late/Departing Early 

Many employer commenters 

suggested that employees use 

unscheduled intermittent leave as a 

pretext to cover for their tardiness or to 

leave work early for reasons unrelated to 

a serious health condition. See 

Southwest Airlines Co., Doc. 10183A, at 

4; Air Conference, Doc. 10160A, at 11 

(‘‘Under the current regulations, an 

employee could be tardy by nearly two 

hours every scheduled workday for an 

entire year and never exceed his 

allotment * * * [S]ome employees use 

this loophole to leave work early every 

day to be at home when their healthy 

children arrive home from school.’’; 

‘‘[M]any employees use intermittent 

leave to cover for tardiness, creating a 

scheduling and attendance reliability 

issue for airlines.’’); Cummins Inc., Doc. 

10340A, at 2 (‘‘Our payroll system 

allows for increments as few as three 

minutes, and one facility had over 200 

incidents of three minute FMLA uses in 

2005. We strongly suspect that our 

incidents of three minute FMLA leave 

are used to excuse tardiness rather than 

true FMLA leave.’’); DST Systems, Doc. 

10222A, at 1 (‘‘Increasing increment 

allowed may reduce inappropriate use 

of the FMLA which can be misused for 

late arrivals/tardiness instead of a 

legitimate FMLA reasons.’’); Methodist 

Hospital, Thomas Jefferson University 

Hospital, Doc. FL76, at 1 (‘‘Having a 

major medical problem like surgery and 

receiving block time off without 

repercussion is not the issue. 

Intermittent leave on the other hand has 

created a hiding place for Employees 

who have absence issues. * * * 

Facilities are not looking to punish 

cancer patients who need chemotherapy 

on a weekly basis; we do need to 

question Employees that have 

intermittent problems on snow days 

when they call in for ‘‘intermittent 

leave’’ and hospitals have to struggle in 

providing last minute staffing.’’). 

b. Obtaining a Preferred Shift 

A number of commenters stated that 

some employees misuse the FMLA rules 

to secure for themselves a preferred 

schedule in the form of a shift different 

from the one legitimately assigned by 

the employer. See, e.g., Southwest 

Airlines Co., Doc. 10183A, at 2, 4 (‘‘Far 

too many employees misuse 

unscheduled, intermittent FMLA leaves 

to set their preferred rather than 

assigned work schedules; to work shifts 

paying overtime but no show regular 

pay shifts; to get excused absences that 

would otherwise violate attendance 

rules; * * * FMLA usage plummets on 

December 25 Christmas Day each year 

when triple overtime is paid[.] * * * 

FMLA usage is near its peak the day 

before Christmas and jumps the day 

after, but somehow nearly all those 

employees who have been out on FMLA 

feel better on Christmas day and are able 

to come to work.’’); Roger Bong, Doc. 

6A, at 4 (‘‘We even had one individual 

during our busy period of time (where 

overtime was abundant) come in four 

hours before the start of their shift (2 

hours at double time and 2 hours at time 

and one half) and then at the start of 

their regular shift go home on FMLA. In 

that way she would earn seven (7) hours 

of pay and leave while not working the 

shift (2nd shift) that she hated.’’); Air 

Conference, Doc. 10160A, at 4. (‘‘[E]very 

airline has numerous examples of 

workers who bid a full-time, 40-hour 

week schedule, entitling them to 

maintain all corresponding full-time 

benefits, but who then cut short most 

work days with intermittent leave. In 

other instances, reservation agents have 

been known to miss their regular shift 

—forcing the carrier to call-in another 

worker with overtime pay— and then 

report into work later that day for an 

overtime shift that pays a higher 

premium.’’). 

A number of commenters expressed 

concern that compliance with the 

FMLA’s intermittent leave provisions—

particularly when taken for a chronic 

condition—often converted a full-time 

position into a permanent, part-time 

position: 

DOL takes the view that an employee is 

entitled to an FMLA reduced schedule due 

to a serious health condition regardless of the 

fact that the condition is permanent and it is 

unlikely that the employee will return to fulltime employment. (DOL Opinion Letter-97, 

July 10, 1998) If an employee has a reduced 

schedule with one full day off per week due 

to FMLA, this arrangement can go on 

indefinitely. This results, in effect, in the 

creation of a new part-time position * * *. 

[An employee can refuse] reasonable 

accommodation under the American[s] with 

Disabilities Act (ADA) but instead chose to 

continue with * * * reduced schedule under 

FMLA * * *. The regulations should not 

permit this. 

Seyfarth Shaw LLP (on behalf of a 

not-for-profit health care organization), 

Doc. 10132A at 3. See also Sally L. 

Burnell, Program Director, Indiana State 

Personnel Department, Doc. 10244C, at 

4 (‘‘The issue here is that some 

intermittent FMLA leaves almost default 

into light duty assignments because 

supervisors must reassign work that the 

frequently-absent employee is 

responsible for to ensure that deadlines 

are met and services are provided to 

customers.’’); Madison Gas and Electric 

Company, Doc. 10288A at 2 (‘‘Offering 

an employee the possibility of 12 weeks 

of intermittent, unscheduled absences 

makes the employer vulnerable to the 

discretion of the employee. An 

employee taking advantage of this 

provision can essentially work parttime, but reap the benefits of a full-time 

employee.’’); Air Conference, Doc. 

10160A at 11 (‘‘Some employees use 

this regulation to effectively convert a 

fulltime position to part-time when parttime work is not otherwise available or 

to receive a shift which they do not have 

the seniority to hold under a 

collectively-bargained seniority 

system.’’).10


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Comments from the University of 

Minnesota noted similar problems: 

Dealing with such situations is extremely 

difficult. Supervisors do not know if the 

employee will come in to work on any given 

day. They do not know if the employee will 

work an entire shift. Employees will simply 

notify their supervisors, in many cases after 

the fact, that they have experienced 

symptoms and cannot come in to work, or 

must leave work early. A comment by a 

supervisor regarding a performance issue 

may result in the employee excusing himself/ 

herself for the rest of the day. Without proper 

notice, a supervisor cannot make plans for a 

replacement * * *. Nonetheless, the current 

statutory and regulatory provisions provide 

employers with few options. 

University of Minnesota, Doc. 4777A, at 

2. 

3. Impact on Employee Morale and 

Productivity 

A very large number of comments 

addressed the effect that the FMLA (and 

unforeseeable intermittent leave in 

particular) has had on employee morale. 

The Department received comments 

emphasizing the positive aspects of the 

FMLA on employee morale and 

retention, as well as the negative impact 

on employee morale and productivity. 

a. Viewpoint: the FMLA Improves 

Employee Morale and Retention 

Most of the comments addressing the 

FMLA’s positive impact on employee 

morale focus on the FMLA generally. 

Several of the commenters who 

described the FMLA’s positive impact 

on morale relied on the 2000 Westat 

Report. See, e.g., Faculty & Staff 

Federation of Community College of 

Philadelphia, Local 2026 of the 

American Federation of Teachers, Doc. 

10242A at 8 (‘‘The 2000 Westat Study 

found that 89% of employers reported 

that the FMLA has had either a positive 

or neutral effect on employee morale. 

The survey also reported that, of those 

who have taken on added duties when 

a co-worker has taken FMLA leave, over 

four in five (85%) say the impact on 

them was neutral or positive.’’); The 

Human Rights Campaign, Doc. 10179A, 

at 2 (same); 9to5, National Association 

of Working Women, Doc. 10210A, at 2 

(‘‘And more than 4 in 5 employees who 

have taken on added duties when a coworker has taken FMLA leave say that 

the impact on them was neutral or 

positive.’’). 

According to the Women’s 

Employment Rights Clinic: 

Studies clearly suggest that workplace 

flexibility, such as leaves for family 

obligations, increases employee retention 

* * *. [O]ther findings ‘‘strongly suggest that 

employers who provide greater opportunities 

for flexible work arrangements, have 

supervisors who are more responsive to the 

personal and family needs of employees, and 

create a workplace culture that is more 

supportive of the worklife needs of 

employees have employees who are more 

satisfied with their jobs, more committed to 

their employers, and more likely to plan to 

stay with their current employers. 

Interestingly, none of these work-life 

supports necessarily impose direct costs 

upon employers, in contrast with 

conventional benefits.’’

Doc. 10197A, at 7–8 (citation omitted). 

See also Faculty & Staff Federation of 

Community College of Philadelphia, 

Local 2026 of the American Federation 

of Teachers, Doc. 10242A, at 8 (‘‘The 

law promotes workforce stability by 

helping employees retain their jobs 

when an emergency strikes. We believe 

the FMLA is essential to greater 

employee retention and to reducing 

employee turnover, and it is crucial to 

preserve FMLA’s protections in their 

entirety.’’). 

A number of commenters focused on 

the benefits directly enjoyed by the 

employer: 

Based on recent research, it is clear that the 

FMLA contributes to a more stable economy 

and workforce by helping employers retain 

their employees and reduce turnover. In the 

2000 Westat study, 98 percent of employees 

taking FMLA leave returned to work after 

taking that leave. And of the employers who 

experienced cost savings due to the FMLA, 

more than three-quarters attributed their 

savings to decreased turnover. The 

Employment Policy Foundation reports that 

the average cost of employee turnover is 25 

percent of an employee’s total compensation. 

Not only does the FMLA support families, it 

also supports businesses. The FMLA has 

reduced these costs by creating an effective 

mechanism for employees to retain their jobs. 

Families USA, Doc. 10327A, at 6 

(footnotes omitted). See also The 

Human Rights Campaign, Doc. 10179A, 

at 2 (‘‘Many companies and states know 

from experience that providing a safety 

net for all families is a good business 

decision.’’); 9to5, National Association 

of Working Women, Doc. 10210A, at 2 

(‘‘The Family Medical Leave Act is a 

win-win for employees and 

employers.’’). 

Several comments from employees 

opined that the causes of decreased 

employee morale are not so much the 

result of the FMLA, but rather the 

employer’s failure to manage effectively: 

The primary method for covering for 

employees on FMLA leave is to assign their 

work to co-workers. Reportedly, this method 

of getting the work done has a negative affect 

on the morale of the employees who pick up 

the slack for their absent co-workers. 

Employers should not rely on co-workers to 

cover for absent employees as a matter of 

course. Rather, co-workers should be used to 

pick up the slack when no other option is 

available. Most employees will need to take 

FMLA leave at some point during their 

career, and good management practices 

dictate that employers recognize this 

eventuality and plan for it. 

Center for WorkLife Law, Doc 10121A, 

at 7. 

b. Viewpoint: Unforeseeable 

Intermittent Leave Negatively Affects 

Employee Morale and Productivity 

In contrast to the comments 

emphasizing the morale-related benefits 

of the FMLA generally, several 

employers commented that when coworkers perceive employees to be 

‘‘abusing’’ the FMLA, morale and 

productivity suffer. As described by the 

Pennsylvania Turnpike Commission: 

FMLA leave when abused/misused affects 

morale negatively. We have received phone 

calls from both employees and managers who 

are frustrated that an employee(s) at their 

work location call off for FMLA so they can 

be off for holidays and weekends. These calloffs may interfere with another employee’s 

vacation request, requiring them to come to 

work while another employee uses their 

FMLA. We have heard these type of holiday/ 

vacation FMLA requests called ‘‘get-out-ofjail-free’’ cards because there is no recourse 

that we have as an employer to enforce these 

types of abuses/misuses of leave. Employees 

will request a vacation day, and if that 

request is denied, they often call in sick for 

FMLA that day. Some employees have even 

bragged to others how easy it is to get the 

extra time off and how they use this time for 

vacation or other non-FMLA reasons. 

Doc. 10092A, at 8. See also Dover 

Downs Hotel & Casino, Doc. 10278A, at 

2 (‘‘Here is an example of what occurs 

on a REGULAR basis. An employee 

requests a vacation at the last minute as 

she received an unexpected invitation 

for a week at the beach. The manager 

denies the request, citing the numerous 

others who were granted vacation for 

the week in question. The manager 

simply cannot afford to allow one more 

person to take that week off as it would 

incur overtime for others to cover for 

this one. This employee chooses to head 

to the beach anyway and calls the 

manager, citing only those magic words 

‘FMLA’. In this true scenario, we were 

inconvenienced—as were the employees 

who had to work overtime to pick up 

extra hours to cover for this 

employee.’’). 

This sentiment is echoed in the 

comments of the National Coalition to 

Protect Family Leave: 

The Coalition believes that the availability 

of FMLA leave can increase morale in the 

workplace, if the leave is used in accordance 

with the spirit and intent of the Act. 

Employees who take FMLA leave are 

generally satisfied, for not only are the 

employees able to retain their benefits, but 


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they also have job security. However, FMLA 

can also lead to low morale and decreased 

productivity in the workplace. When 

employees take unscheduled intermittent 

leave and even scheduled leave in large 

blocks of time, the morale and productivity 

may decline for the remaining employees. 

The employees who report to work must 

cover for their colleagues who take FMLA 

leave, often resulting in overtime. Both 

employers and employees have expressed 

concerns regarding the abuse of FMLA leave 

and, thus, the employees who report to work 

are the ones who suffer. 

Doc. 10172A, at 51. See also Bendix 

Commercial Vehicle Systems, Doc. 

10079A, at 4, 11 (‘‘[FMLA leave] has a 

positive impact when it is believed to be 

used appropriately; however, when it is 

believed to be being abused, it has a 

very negative [effect]. It can build 

animosity towards coworkers for not 

pulling their weight, towards the 

employer because we are allowing the 

employee to abuse the FMLA and won’t 

do anything about it.’’; ‘‘This means that 

coworkers have to be asked to do more 

to cover for the person who took the 

intermittent FMLA. This can create 

morale issues—employee not pulling 

their own weight.’’). 

Some employers report that 

employees themselves also identify 

morale issues associated with their coworkers’ use of FMLA: 

There is a menacing, intangible cost to 

abuse of intermittent FMLA: it wears out 

fellow employees who must cover shifts and 

trips for those abusing FMLA. It dampens 

workplace morale and teamwork * * *. In 

2006, Southwest employees * * * were 

asked what one thing they would change 

* * *. In response, employees provided 

hundreds of unsolicited comments about 

FMLA abuse and its negative [effect] on 

morale. 

Southwest Airlines Co., Doc. 10183A, at 

6. 

Morale—Employees that are not utilizing 

the unforeseen, intermittent leave report 

feeling cheated. They come to work on time 

and work 40 hours each week. When they 

need time off, they utilize their vacation 

time. They also report that employees on 

unforeseen, intermittent leave indicate that 

they can and will abuse the system when 

they want to. As a result, more and more 

employees are applying for unforeseen, 

intermittent leave so they can take time off 

of work whenever they choose. 

Yellow Book USA, Doc 10021A, at 1. 

See also An Employee Comment, Doc. 

136, at 1 (‘‘We have a serious problem 

with this where I work. There are 

several people who do take advantage of 

the system to the point where it is a 

problem for the other workers. There is 

no way for them to stop or control this 

either as they call in for 2 days, then are 

back before required to bring in a 

doctor’s excuse.’’). 

Other commenters addressed the 

perception of ‘‘abuse’’ of the FMLA by 

leave-takers or the overall ‘‘costs’’ of the 

FMLA. A postal employee commented 

‘‘it seems to me many employees abuse 

the system * * *. I don’t think the 

employees lie about illnesses, but they 

milk the system to stay home as much 

as possible.’’ An Employee Comment, 

Doc. 188, at 1. An employee at a 

unionized factory commented that he 

had witnessed ‘‘a lot of abuse’’ of FMLA 

which created morale issues as well as 

additional costs to the company. An 

Employee Comment, Doc. 195, at 1. 

However, an employee in the 

transportation industry noted, ‘‘I do see 

people occasionally abuse sick leave but 

those people would abuse it regardless 

of FMLA.’’ An Employee Comment, 

Doc. 4684, at 1. 

Several commenters contended that 

misuse of intermittent leave has a 

negative effect on employee retention 

and turnover. For example: 

[I]t is common that morale problems begin 

to appear among the employees (collectively 

and individually) who are left to deal with 

an ‘‘intermittent’’ abuser in their production 

area and have to continually pick up the 

slack; however, while this last group may 

perhaps receive some benefit via overtime as 

a result, the more common result is 

diminishing morale which often results in 

increased turnover. 

Krukowski & Costello, S.C. (on behalf of 

Legislative Committee of the Human 

Resource Management Association of 

Southeastern Wisconsin), Doc. 10185A, 

at 8. 

Additional comments in response to 

the RFI described the impact of 

unforeseeable intermittent leave on 

employee morale: 

[T]he availability of FMLA improves the 

morale of the employees that use it, while 

negatively affecting the employees who do 

not. Everyone knows the day may come 

when we all may need to use it; however, the 

fact that every individual has the ability to 

be certified and then be able to miss up to 

twelve weeks in a twelve-month period is 

very disheartening. There are individuals 

who will exhaust the twelve weeks and then 

miraculously can come to work everyday 

thereafter and once eligible, complete a new 

certification and start the [vicious] cycle all 

over again. We have no evidence that it 

improves employee retention, however, 

employees that already have attendance 

problems find themselves with a serious 

health condition and are then able to 

continue to miss work but are able to be 

excused instead. 

AM General LLC, Doc. 10073A, at 2–3. 

See also Spencer Fane Britt & Browne 

LLP, Doc. 10133C, at 19–20. 

C. The Importance of Unscheduled 

Intermittent Leave to Employees 

Many commenters addressed the need 

for unscheduled intermittent leave. For 

example, one commenter described her 

personal experiences with her 

daughter’s chronic, serious health 

condition: 

My daughter had a major asthma attack 

which caused a bronchial infection, swelling 

and bacteria in her throat * * *. [N]one of 

my daughter’s doctors have told her how 

many times she needed to see them. I’m quite 

sure if they knew the answer, it would have 

been written * * *. No one is capable of 

predicting an asthma attack or the severity of 

the attack; I just would like the assurance of 

knowing that if or when the situation should 

arise, I have the time off required to handle 

her needs without the threat of being * * * 

terminated. 

An Employee Comment, Doc. 4395, at 1. 

Another commenter described her 

experience: 

In 2003, my mother was diagnosed with 

end stage renal failure and had to 

immediately begin receiving dialysis 

treatments three times a week. Since then, I 

have been working a reduced work schedule 

which allows me to be able to help my mom 

with transportation to/from her treatments, 

doctor appointments, errands, etc. * * *. I 

was so thankful when my employer informed 

me of this law because it gave my mom peace 

of mind knowing that I would be available 

for her when she needed me. By me working 

only 32 hrs a week, instead of the normal 40 

hr workweek, I have been able to act [as] an 

advocate/liaison for my mom with all of her 

doctors, specialists and treatments that she’s 

had to endure. Most importantly, it has 

allowed for my mom to feel independent 

with my help. I know that if the FMLA act 

[wasn’t] around, I would be losing a lot of 

time and money with my employer and my 

mom would probably be a burden to the 

society and maybe even be living in a rest 

home somewhere * * *. My mom will need 

dialysis treatments indefinitely but I end up 

taking leave without pay for most of the 

year[.] 

An Employee Comment, Doc. 4773, at 1. 

The AFL–CIO comments also 

included statements from individual 

employees detailing the importance of 

intermittent FMLA leave to affected 

workers: 

Many of the responses to Working 

America’s 2007 online survey on FMLA 

stressed the importance of intermittent leave. 

A Human Services Supervisor in Easton, 

Pennsylvania, relied on intermittent leave to 

care for his terminally ill father: 

By using the intermittent leave provisions 

of FMLA, I was able to help care for my Dad 

in the final stages of his terminal cancer, in 

his own home. I was grateful that he was able 

to spend his last days in the comfort of his 

house, as he desired, while I was able to 

maintain my employment status, which I 

desperately needed for my own family. 

Weakening this law, will only lead to the 


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further breakdown of already stressed family 

support systems. 

A payroll and benefits administrator 

in Euclid, Ohio also cares for a sick 

parent: 

My mother suffered a severe stroke 4 years 

ago. I use FMLA time to care for her at home 

and keep her out of a nursing home. I have 

two siblings who help with her care, so I only 

have to take intermittent leave. It’s hard 

enough to care for a disabled parent without 

having to worry about losing your job * * *. 

It would break my heart and my mother’s if 

I had to put her in a nursing home. The 

government should be finding ways to make 

it easier to take this leave, not make it harder. 

American Federation of Labor and 

Congress of Industrial Organizations, 

Doc. R329A, at 30–31 (citation omitted). 

The Center for WorkLife Law 

expressed its belief in the importance of 

unforeseeable intermittent leave for 

chronic conditions to working 

Americans: 

Recent studies show that 65 percent of 

families with children are headed by two 

working parents or a single parent. One in 

four employed men and women has elder 

care responsibilities and one in 10 employees 

is a member of the ‘‘sandwich generation’’

with both child care and elder care 

responsibilities. For those working caregivers 

with a seriously ill child or family member, 

medical emergencies are a way of life. 

Intermittent FMLA leave allows these 

employees to be available to their families 

when they are needed most without the 

stress of losing their jobs. We cannot 

emphasize strongly enough that the 

availability of intermittent FMLA leave is 

critical for eligible employees caring for an ill 

child, spouse or parent with a serious 

chronic illness. 

Doc. 10121A, at 5 (emphasis in original) 

(footnotes omitted). 

V. Notice: Employee Rights and 

Responsibilities 

The Department noted in its Request 

for Information that one consistent 

concern expressed by the employee 

representatives during 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 since the inception of the 

FMLA. Employees learn of their rights 

and responsibilities through the notice 

provisions of the FMLA and its 

implementing regulations. The 

Department sought information in 

response to several questions 

concerning the notice provisions and 

how those provisions relate to employee 

awareness of their rights and 

responsibilities: • Whether employees continue to be 

unaware of their rights under the Act 

and, if so, what steps could be taken to 

improve this situation. 

• The Department noted that 

employers have reported that some 

employees do not promptly notify their 

employers when they take unforeseeable 

FMLA leave and requested 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. • 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 balances? • 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 and make a determination? 

A. Background 

The Act places notice obligations on 

both employers and employees. The 

notice provisions are scattered 

throughout the regulations, which 

further define the statutory 

requirements and also include 

additional notice obligations. 

1. Employer Notice Requirements 

The FMLA mandates that covered 

employers affirmatively notify their 

employees of their rights under the Act: 

Each employer shall post and keep posted, 

in conspicuous places on the premises of the 

employer where notices to employees and 

applicants for employment are customarily 

posted, a notice, to be prepared or approved 

by the Secretary, setting forth excerpts from, 

or summaries of, the pertinent provisions of 

this title and information pertaining to the 

filing of a charge. 

29 U.S.C. 2619(a). ‘‘Any employer that 

willfully violates this section may be 

assessed a civil money penalty not to 

exceed $100 for each separate offense.’’

29 U.S.C. 2619(b). 

In addition to the statutory posting 

requirement, the Department of Labor 

regulations flesh out employers’

obligations to inform employees of their 

FMLA rights and responsibilities. See 

generally 29 CFR 825.300–825.301. In 

addition to repeating the statutory 

requirements, section 825.300 of the 

regulations requires some degree of 

bilingual or multilingual notice: ‘‘Where 

an employer’s workforce is comprised of 

a significant portion of workers who are 

not literate in English, the employer 

shall be responsible for providing the 

notice in a language in which the 

employees are literate.’’ 29 CFR 

825.300(c). 

Section 825.301 sets forth additional 

employer notice requirements, requiring 

the inclusion of information on the 

employee’s FMLA rights and 

responsibilities and the employer’s 

policies regarding the FMLA in the 

pertinent employee handbook or 

through other means if the employer 

does not have such formal written 

policies. 29 CFR 825.301(a)(1)–(2). 

The notice requirements set forth in 

section 825.301 derive from notice 

provisions found throughout the 

regulations. Within a reasonable time 

after the employee has provided notice 

of the need for leave, the employer shall 

provide the employee with written 

notice detailing the specific 

expectations and obligations of the 

employee and explaining the 

consequences of a failure to meet these 

obligations. The written notice must be 

provided in a language in which the 

employee is literate and must include, 

as appropriate: 

(i) that the leave will be counted against 

the employee’s annual FMLA leave 

entitlement (see § 825.208); 

(ii) any requirements for the employee to 

furnish medical certification of a serious 

health condition and the consequences of 

failing to do so (see § 825.305); 

(iii) the employee’s right to substitute paid 

leave and whether the employer will require 

the substitution of paid leave, and the 

conditions related to any substitution; 

(iv) any requirement for the employee to 

make any premium payments to maintain 

health benefits and the arrangements for 

making such payments (see § 825.210), and 

the possible consequences of failure to make 

such payments on a timely basis (i.e., the 

circumstances under which coverage may 

lapse); 

(v) any requirement for the employee to 

present a fitness-for-duty certificate to be 

restored to employment (see § 825.310); 

(vi) the employee’s status as a ‘‘key 

employee’’ and the potential consequence 

that restoration may be denied following 

FMLA leave, explaining the conditions 

required for such denial (see Sec. 825.218); 

(vii) the employee’s right to restoration to 

the same or an equivalent job upon return 

from leave (see § 825.214 and 825.604); and 

(viii) the employee’s potential liability for 

payment of health insurance premiums paid 

by the employer during the employee’s 

unpaid FMLA leave if the employee fails to 

return to work after taking FMLA leave (see 

§ 825.213). 

29 CFR 825.301(b)(1). ‘‘The specific 

notice may include other information—

e.g., whether the employer will require 

periodic reports of the employee’s status 

and intent to return to work, but is not 

required to do so.’’ 29 CFR 

825.301(b)(2). ‘‘The notice shall be given 

within a reasonable time after notice of 

the need for leave is given by the 

employee—within one or two business 

days if feasible.’’ 29 CFR 825.301(c). The 

written notification to the employee that 


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11Private sector supervisors are subject to 

individual liability under the FMLA and therefore 

may be held liable if they violate an employee’s 

FMLA rights. See 29 U.S.C. 2611(4)(A)(ii)(I); 29 CFR 

825.104(d). The Department is aware, however, that 

there is a conflict in the circuits and in the lower 

courts regarding whether public agency supervisors 

can also be held individually liable under the 

FMLA. Compare Modica v. Taylor, 465 F.3d 174, 

186 (5th Cir. 2006) (‘‘The most straightforward 

reading of the text compels the conclusion that a 

public employee may be held individually liable 

under the FMLA.’’) and Darby v. Bratch, 287 F.3d 

673, 681 (8th Cir. 2002) (‘‘It seems to us that the 

plain language of the statute decides this question 

* * * This language plainly includes persons other 

than the employer itself. We see no reason to 

distinguish employers in the public sector from 

those in the private sector.’’) with Mitchell v. 

Chapman, 343 F.3d 881, (6th Cir. 2003) (‘‘Our 

independent examination of the FMLA’s text and 

structure reveals that the statute does not impose 

individual liability on public agency employers.’’), 

cert. denied, 124 S. Ct. 2908 (2004) and Wascura 

v. Carver 169 F.3d 683, 686 (11th Cir. 1999) 

(holding based on the similarity of the definition of 

‘‘employer’’ under the FMLA and the FLSA, and 

circuit precedent interpreting the term under the 

FLSA, that public officials are not individually 

liable under the FMLA). 

the leave has been designated as FMLA 

leave ‘‘may be in any form, including a 

notation on the employee’s pay stub.’’

29 CFR 825.208(b)(2). 

2. Employee Notice Requirements 

The FMLA also imposes a 

requirement on employees to notify 

their employers of the need for FMLA 

leave. The statute requires that in the 

case of foreseeable leave due to the birth 

of a son or daughter or the placement of 

a son or daughter with the employee for 

adoption or foster care, ‘‘the employee 

shall provide the employer with not less 

than 30 days notice before the date the 

leave is to begin * * * except that if the 

date of birth or placement requires leave 

to begin in less than 30 days, the 

employee shall provide such notice as is 

practicable.’’ 29 U.S.C. 2612(e)(1). The 

same standard applies to foreseeable 

leave based on planned medical 

treatment for a serious health condition 

of the employee or the employee’s 

spouse, son, daughter, or parent. 29 

U.S.C. 2612(e)(2). 

‘‘When the approximate timing of the 

need for leave is not foreseeable, an 

employee should give notice to the 

employer of the need for FMLA leave as 

soon as practicable under the facts and 

circumstances of the particular case. It 

is expected that an employee will give 

notice to the employer within no more 

than one or two working days of 

learning of the need for leave, except in 

extraordinary circumstances.’’ 29 CFR 

825.303(a). ‘‘An employer may also 

require an employee to comply with the 

employer’s usual and customary notice 

and procedural requirements for 

requesting leave. * * * However, 

failure to follow such internal employer 

procedures will not permit an employer 

to disallow or delay an employee’s 

taking FMLA leave if the employee 

gives timely verbal or other notice.’’ 29 

CFR 825.302(d). 

While the statute and its 

implementing regulations require the 

employee to provide notice of the need 

for leave, employees are not required to 

specifically request FMLA leave. The 

‘‘employee need not expressly assert 

rights under the FMLA or even mention 

the FMLA, but may only state that leave 

is needed[.]’’ 29 CFR 825.302(c), 

825.303(b). However, the regulations 

also state that ‘‘[a]n employee giving 

notice of the need for unpaid FMLA 

leave must explain the reasons for the 

needed leave so as to allow the 

employer to determine the leave 

qualifies under the Act. * * * In many 

cases, in explaining the reasons for a 

request to use paid leave, especially 

when the need for the leave was 

unexpected or unforeseen, an employee 

will provide sufficient information for 

the employer to designate the paid leave 

a FMLA leave.’’ 29 CFR 825.208(a)(1). 

B. Awareness of Rights 

The 1995 Commission on Leave 

Report found that 41.9% of employees 

at covered establishments had not heard 

of the FMLA. The 2000 Westat Report 

found that 40.7% of covered employees 

had not heard of the FMLA and nearly 

half the employees did not know 

whether the law applied to them. See 

2000 Westat Report, at 3–8 and 3–9. One 

commenter cited these percentages and 

expressed a continuing concern that 

employees are not aware of their rights. 

National Partnership for Women & 

Families, Doc. 10204A, at 17. 

Increasing employee and employer 

awareness of FMLA rights and 

responsibilities continues to be a 

challenge. See Madison Gas and Electric 

Company, Doc. 10288, at 3 (‘‘Employees 

tend to be uninformed about many legal 

rights or employer benefit provisions. 

Employees seek ‘just in time’

information when they really need it.’’). 

See also An Employee Comment, Doc. 

10336A, at 12 (‘‘People generally do not 

understand the law. If you address an 

employer’s human resources 

department, you can leave even more 

confused * * *. Overall, employee 

rights are not disclosed clearly to 

employees.’’); Zimbrick Inc., Doc. 

FL125, at 9 (‘‘Some employees are aware 

and others are not. However, this is no 

different than any other areas.’’); An 

Employee Comment, Doc. 4646, at 1 

(‘‘[I]f my coworker did not inform me of 

FMLA I know I would have lost my 

job.’’). One employer suggested that 

employees may be unaware of their 

FMLA rights due to the timing of when 

they receive information about FMLA. 

‘‘If employees continue to be unaware of 

their FMLA rights, it may be because 

most employers will cover this at 

orientation. On the first day of the job, 

new employees are nervous and are 

overwhelmed with paperwork and work 

rules. Since FMLA won’t affect them 

until they have in the requisite 12 

months with the company, they may 

shove that information to the back 

burner.’’ Elaine G. Howell, H.R. 

Specialist, International Auto 

Processing, Inc., Doc. 4752, at 1. 

It appears that employees are not the 

only ones who could benefit from 

increased awareness of FMLA. An 

employee who took FMLA leave for the 

adoption of a daughter and later sued 

his employer for interfering with his 

FMLA rights and terminating his 

employment in violation of the FMLA 

stated that ‘‘Not only was I unaware of 

my [FMLA] protected status, but neither 

was my management as they testified in 

court. [Company Name] did not meet 

their obligation to thoroughly explain 

FMLA leave to management and 

therefore they failed to provide adequate 

protection to their employees.’’ An 

Employee Comment, Doc. 167A, at 2. 

The Legal Aid Society-Employer Law 

Center commented: 

Awareness of one’s FMLA’s rights in the 

workplace is woefully absent. In my 

experience, most litigation has been the 

result of supervisors who are simply ignorant 

about FMLA, its intended purpose and basic 

protections, and then, with no training or 

information, improperly deny FMLA leave to 

eligible employees with a legitimate serious 

health condition. Invariably, in every case 

that I have litigated, the key supervisor did 

not know that: (1) FMLA provides 12 weeks 

of leave for an eligible employee; (2) the 

leave can be taken on an intermittent basis; 

(3) existing health care coverage continues 

while an employee is on leave; (4) an 

employee has the right to be reinstated to her 

same or comparable job upon expiration of 

the leave; and (5) an employee who exercises 

their right to take FMLA leave may not [be] 

subject to retaliation. 

Doc. 10199A, at 3–4. See also Center for 

WorkLife Law, Doc. FL64, at 6 (‘‘Some 

employers fail to inform eligible 

employees about their right to take 

FMLA leave because of the employers’

or their managers’ own lack of 

knowledge or understanding of the 

law.’’).11

Other comments from employees and 

employee groups reported that many 

employees have some general awareness 

of the FMLA but do not know what the 

law is (e.g., whether it extends beyond 

leave for birth of a child) or whether it 

applies to them. A survey conducted by 

AARP of workers age 50 and over 


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revealed that, although 91 percent were 

generally aware of the FMLA, only 50 

percent of those workers reported that 

they first learned of the FMLA through 

their employer, suggesting that ‘‘more 

can be done to improve employeremployee communication[.]’’ AARP, 

Doc. 10228A, at 3. A survey of Working 

America members by the AFL–CIO 

similarly showed that 53.9 percent of 

respondents were informed about their 

FMLA rights by their employers. See 

Doc. R329A, at 7. The survey also 

showed that 68 percent of the 

respondents had taken unpaid leave to 

care for themselves or a spouse, child, 

or parent during an illness, but did not 

know whether it was considered FMLA 

leave. Id. at 40. 

Still other stakeholders report that 

employees’ awareness of their FMLA 

rights is not lacking. For example, the 

National Coalition to Protect Family 

Leave stated that ‘‘Coalition members 

believe that, in many cases, employees 

are well aware of their FMLA leave 

rights. Among unionized employers, 

coalition members report that unions 

routinely inform their members of their 

FMLA rights.’’ Doc. 10172A, at 39. One 

law firm representing employers agreed. 

Porter, Wright, Morris & Arthur LLP, 

Doc. 10124B, at 5 (‘‘Today, 13 years 

after the Act’s passage, employees are 

very savvy about their FMLA rights—it’s 

the rare employee who does not know 

of the FMLA.’’). Other stakeholders 

echoed the sentiment: ‘‘As indicated by 

the high usage of FMLA by employees 

at most of our member airlines, 

employees are fully aware of the rights 

available to them under this popular 

Act.’’ See Air Transport Association of 

America, Inc., and Airline Industrial 

Relations Conference, Doc. FL29, at 9. 

See also MedStar Health Inc., Doc. 

10144, at 15 (asserting that ‘‘employees 

are not only aware of but, also, well 

educated on their FMLA rights’’); 

National Association of Convenience 

Stores, Doc. 10256A, at 8 (‘‘today’s 

employees are aware of their rights and 

obligations under FMLA long before 

they are hired’’). 

Suggestions we received for increased 

awareness include outreach efforts, 

public campaigns, increased 

dissemination of materials in both 

English and Spanish, on-line tools, and 

development of user-friendly FMLA 

materials that could be widely 

disseminated. See National Partnership 

for Women & Families, Doc. 10204A, at 

17; Families USA, Doc. 10327A, at. 4. 

One union stated that the ‘‘posting 

requirements for employers under 

FMLA do not go far enough in that they 

do not actively educate employees on 

their rights under FMLA. In addition to 

posting FMLA basic facts as required by 

the regulation, employers should be 

required to give the information to 

employees, in writing, once they 

become eligible under the regulations 

with that employer. Contact phone 

numbers for the employer as well as 

detailed appeals process afforded to the 

employee should be provided, as well as 

recourse information for possible 

retaliatory practices by the employer.’’

United Transportation Union, Doc. 

10022A, at 2. 

Another union recommended that 

‘‘employees should be expressly 

notified of their right to take 

intermittent leave.’’ International 

Association of Machinists and 

Aerospace Workers, Doc. 10269A, at. 2. 

‘‘This has proven a real problem for 

some of our members * * * An 

employee who suffers from a condition 

that is still being diagnosed, but doctors 

believe it is either lupus, a connective 

tissue disorder or rheumatoid arthritis, 

arrived late to work due to her condition 

on a number of occasions. This 

employee was completely unaware that 

she could take FMLA on an intermittent 

basis. She thought if she took any FMLA 

leave, she would have to stop working 

altogether, something her illness did not 

necessitate and something she could not 

afford to do.’’ Id. at 2–3. The Legal Aid 

Society-Employment Law Center also 

stated that few employers effectively 

advise employees about their rights and 

options under the FMLA. See Doc. 

10199A, at 4. Therefore, when ‘‘a 

supervisor denies a legitimate leave, 

uninformed employees must make the 

difficult decision to take the leave in 

spite of the supervisor’s denial and risk 

losing their jobs.’’ Id. This commenter 

suggested that employers provide 

employee training so that the workers 

understand their rights. 

The AFL–CIO suggested that the 

Department should consider regulations 

that require ‘‘employers to provide an 

individualized notice provision to 

employees on an annual basis,’’ and 

referred to another commentator who 

suggested requiring notice to employees 

at the point of hiring and annually 

thereafter. Doc. R329A, at 40. The 

Communication Workers of America 

reiterated that employees should receive 

documents that ‘‘explain their annual 

leave entitlement and the process for 

making application for FMLA leave.’’

Doc. R346A, at 9. It suggested that 

employers could improve employees’

awareness of their rights, as well as 

inform them of their individual 

eligibility status, by taking steps such as 

producing an annual FMLA document 

for them. One employee recommended 

that a ‘‘manager and/or HR should 

formally contact the employee and 

notify them of the options available 

under FMLA. This should include a 

description of the protection and a 

review of what the employee needs to 

do to qualify for this protection (if 

anything). Employees should be clearly 

made aware of their obligations to the 

employer. Employees should be 

instructed when protection begins, 

when paid leave begins and ends (ie. 

paid vacation until it is used up), and 

protection should be defined.’’ An 

Employee Comment, Doc. 167A, at 2–3. 

The National Employment Lawyers 

Association similarly asserted that the 

regulations should require employers to 

take steps to provide workers with 

adequate information regarding their 

rights and responsibilities. See Doc. 

10265A, at 4. One of its members 

suggested requiring employers to have 

such information in their handbooks 

and/or requiring employers ‘‘to produce 

a written statement of rights and 

responsibilities to an employee upon 

that employee’s first anniversary (if no 

handbook is issued).’’ Id. See also 

Coalition of Labor Union Women, Doc. 

R352A, at 2–3 (noting that many 

employees are not aware of their FMLA 

rights, and that employers do not 

provide them with the required 

information). 

C. Employee Notice 

As previously explained, employees 

have the responsibility to notify their 

employers of the need for FMLA leave; 

however employees are not required to 

expressly request FMLA leave or invoke 

their FMLA rights. A great deal of 

anecdotal information was provided 

concerning notices provided by 

employees as well as several suggestions 

on this subject. 

1. Notice of the Need for Leave: Timing 

and Information Provided 

Stakeholders offered several possible 

explanations for employees failing to 

provide notice of their need for leave, 

ranging from the employee’s 

relationship with his/her supervisor to 

not wanting the absence to count as 

FMLA: 

It appears that reasons for employees 

failing to notify their employer in advance of 

FMLA leave-qualifying events vary 

depending upon the medical situation and 

the employee’s personality and relationship 

with his/her supervisor. For example, some 

employees discuss the possibility of surgery 

or childbirth informally with co-workers and 

then neglect to submit formal documentation 

in a timely manner perhaps assuming that 

the informal break room discussions are 

sufficient; other employees do not want 

supervisors or management to be aware of 

medical issues until the very last minute and 


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then provide only a bare minimum of 

information. 

Another reason for delays is that 

employees seem to think that they can 

retroactively document most absences, 

whether foreseeable or not, and frequently 

submit the documentation after their return 

to work. Since in many cases these 

employees used accrued leave to cover their 

absences, it is often in the employer’s interest 

to also designate the absence as FMLA leave 

whenever the employee provides the 

documentation of qualification. 

It also appears that employees who have 

the option of using other accrued paid leave 

often do not mention the reason for that leave 

in order to avoid the absence being charged 

concurrently to FMLA leave. Employees 

without other leave options are very quick to 

request FMLA leave even for doubtful 

absences. 

Sally L. Burnell, Program Director, 

Indiana State Personnel Department, 

Doc. 10244C, at 5. See also Elaine G. 

Howell, H.R. Specialist, International 

Auto Processing, Inc., Doc. 4752, at 1 

(‘‘As an H.R. Specialist that handles 

FMLA, I can tell you that we have had 

employees with a foreseeable leave that 

did not notify us of their need for leave. 

Some employees have scheduled 

surgery and used vacation time. We are 

unaware of it unless there are 

complications. * * * Many of our 

employees are very private of their 

medical needs, as they should be.’’); 

Zimbrick Inc., Doc. FL125, at 10 (‘‘We 

see several causes [for employee’s 

failing to notify employer]: (1) 

Employees’ lack of knowledge about 

FMLA; (2) employees don’t anticipate 

the need (for example[:] employee takes 

off on Friday to have surgery but due to 

medical complications can’t return to 

work on Monday); [and] (3) employees 

who know FMLA is 12 weeks and they 

try to scam the system by using vacation 

and sick time up first and then want 12 

more weeks off.’’). One stakeholder 

cited the need to provide medical 

certification of the serious health 

condition as a reason employees do not 

request FMLA leave. See FNG Human 

Resources, Doc. FL13, at 3 (‘‘Employees 

refuse to request FMLA because some 

medical providers either refuse to 

complete the paperwork, complete it 

incorrectly or incompletely, or charge 

the patient up to $50 to complete the 

required certification. Employees would 

rather do without the hassle, request 

sick pay for the days they are out, 

regardless of severity of their 

illnesses.’’). 

Some commenters do not see 

problems with employee notification as 

mentioned in the RFI and suggested 

maintaining the status quo. ‘‘Clearly, 

employees should notify their 

employers about their need for leave as 

quickly as is reasonably possible, but it 

also is important to ensure that 

employees are not penalized unfairly 

when confronted with unexpected 

emergencies. We believe the regulations 

strike an appropriate balance to allow 

employees to take leave in emergency 

situations, and also to provide 

employers with information about the 

need for leave in a prompt manner.’’

National Partnership for Women and 

Families, Doc. 10204A, at 19. See also 

OWL, The Voice of Midlife and Older 

Women, Doc. FL180, at 2 (‘‘OWL 

believes that the current notice from 

employee to employer in unforeseeable 

leave situations is adequate.’’). 

The majority of stakeholders offering 

information on this topic, though, 

highlighted the problems they see with 

the sufficiency of information provided 

by employees in notifying employers of 

the need for FMLA leave. ‘‘[E]mployees 

who call in because of their own or a 

family member’s medical condition do 

not necessarily provide sufficient 

information for an employer to make 

such a determination. Since what 

constitutes ‘‘sufficient’’ information is 

not clearly defined anywhere in the 

regulations, both employees and 

employers face difficulties in meeting 

their rights and responsibilities under 

the FMLA.’’ National Coalition to 

Protect Family Leave, Doc. 10172A, at 

39–40. See also National Retail 

Federation, Doc. 10186A, at 16 (‘‘Certain 

retailers report that paperwork is often 

not provided in a timely manner 

because the employee has failed to 

adequately communicate the reason 

prompting the leave request or has not 

shared the information with an 

appropriate manager.’’); Jackson Lewis 

LLP, Doc. FL71, at 9 (‘‘Much of the 

frustration employers experience in 

administering FMLA leaves stems from 

the difficulty employers have in 

‘‘spotting’’ FMLA qualifying absences. 

Employers are not ‘‘mind readers’’ and 

they often refrain from asking 

employees why they are absent for fear 

that they may invade an employee’s 

medical privacy. It also is naive to think 

that employers can effectively train 

front line supervisors on the myriad of 

health conditions and personal family 

emergencies that might qualify for 

FMLA protection.’’); Porter, Wright, 

Morris & Arthur LLP, Doc. 10124B, at 4 

(‘‘The first concern in this area relates 

to the type of notice an employee must 

provide to obtain FMLA leave. * * * 

Instead, they simply need to request 

time off and provide a reason for their 

request.’’); National Association of 

Convenience Stores, Doc. 10256A, at 5 

(‘‘Employee notice is often vague or 

non-existent, forcing employer 

representatives to make a discretionary 

‘‘judgment call’’ in questionable 

situations time and time again.’’). 

The timing of employee notification 

of the need for leave was also 

mentioned by employers and employer 

representatives as a problem in their 

administration of the FMLA, 

particularly—as discussed in greater 

detail in Chapter IV—employee notice 

with respect to intermittent leave. ‘‘The 

last issue has to do with the fact that we 

are often not notified that an employee 

is out for a serious health condition 

until after they return to work and then 

we are unable to ask for medical 

documentation.’’ Jan M. Gray, Benefits 

Coordinator, Spokane County, Doc. 

5441A, at 1. See also Suzanne Kilts, 

Doc. 5204, at 1 (‘‘On our intermittent 

FMLA employees, we have had several 

occasions where the employee does not 

call in for his FMLA absence until 

minutes before their shift start. * * * 

Just last week I had an FMLA call off at 

9:05 a.m. in the morning. That’s 2 hours 

and five minutes after their shift is to 

start.’’); The Pennsylvania Turnpike 

Commission, Doc. 10092, at 6 (‘‘The 

issue of [employees] failing to notify 

their supervisors promptly that they are 

taking FMLA leave is very prevalent in 

our company. Some employees that are 

approved for intermittent FMLA simply 

don’t show up for work, and then email 

or call their supervisor when the work 

day is almost over to inform them that 

they are taking FMLA. This is extremely 

frustrating as an employer, and there 

does not ever seem to be a valid reason 

that the employee could not notify the 

supervisor earlier.’’). 

2. Commenter Recommendations 

The Department also asked for 

suggestions on how to improve the 

reported situation of employees not 

promptly providing notice to their 

employers of their need for 

unforeseeable FMLA leave. One 

commenter suggested ‘‘shifting the 

burden to the employee to request the 

leave be designated as FMLA leave in 

writing.’’ See Miles & Stockbridge, P.C., 

Doc. FL79, at 5. Other commenters 

suggested not only written leave 

requests but also that leave requests 

specifically mention FMLA. ‘‘It would 

eliminate many disputes if an employee 

were required to request leave in writing 

or to follow up an oral request with a 

written request within a reasonable time 

(such as within two work days after 

returning to work in the case of 

intermittent leave, or five work days 

after requesting leave in the event of 

unforeseen continuous leave). * * * It 

would help both parties immensely if 


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12 In general, employers are required to designate 

leave as FMLA within two days of learning that the 

leave is being taken for an FMLA-covered purpose. 

See 29 CFR 825.208(b)(1). The regulations prohibit 

employers from retroactively designating leave as 

FMLA if they could have properly determined the 

status of the leave at the time the employee either 

requested or commenced the leave. See 29 CFR 

825.208(c); but see supra Chapter II (discussing 

status of penalty provision of section 825.208(c) in 

light of the Supreme Court’s decision in Ragsdale). 

The regulations do allow for retroactive 

designation, however, if the employer learns after 

an employee’s leave has begun that the leave is for 

an FMLA-covered purpose. See 29 CFR 825.208(d). 

Similarly, if an employer knows the reason for the 

leave but is unsure whether it qualifies for FMLA 

protection, or if the employer has requested but not 

yet received certification of the need for leave, the 

employer may preliminarily designate the leave as 

FMLA-covered. See 29 CFR 825.208(e)(2). If upon 

receipt of the requested information the employer 

determines that the leave is FMLA protected, the 

preliminary designation becomes final. Id. If the 

additional information does not confirm that the 

absence was for an FMLA-covered reason, the 

employer must withdraw the preliminary 

designation and notify the employee. Id. Finally, if 

the employer does not learn that leave was taken 

for an FMLA-covered purpose until the employee 

returns from leave, the employer may, within two 

business days of the employee’s return, designate 

the leave retroactively as covered by the FMLA. See 

29 CFR 825.208(e)(1). 

the employee were required to mention 

the FMLA when making such a 

request.’’ South Central Human 

Resource Management Association, Doc. 

10136A, at 14; see also Spencer Fane 

Britt & Browne LLP, Doc. 10133C, at 39 

(same). ‘‘Especially for intermittent use, 

require that employee provide specific 

FMLA notice when absences are 

necessary, relieving employer from 

identifying possible need of FMLA with 

timely designation based on limited 

information provided by employee[.]’’

DST Systems, Inc., Doc. 10222A, at 4. 

Other stakeholders expressed a desire 

for more information from employees, 

but stopped short of suggesting a 

requirement that the employee must 

specifically ask for FMLA leave. 

‘‘Employees should be required to 

specify the purpose of any instance of 

FMLA leave, such as a doctor’s 

appointment, physical treatment, etc. so 

employers can assess veracity when 

employees appear to be abusing the 

leave policy.’’ U.S. Chamber of 

Commerce, Doc. 10142A, at 11. See also 

Williams Mullen, Doc. FL124, at 2 

(‘‘DOL should implement detailed 

regulations which provide necessary 

language or actions that must be taken 

by employees to put their employers on 

notice of their intent to take FMLA 

leave.’’); Association of Corporate 

Counsel, Doc. FL31, at 8 (‘‘The DOL 

should revise its regulations * * * by 

making clear that an employee’s notice 

to the employer must go beyond merely 

requesting leave and must provide a 

basis for the employer to conclude that 

the requested leave is covered by the 

FMLA.’’). However, some employers 

advocated for a requirement that 

employees specifically request FMLA 

leave, suggesting that the regulations 

should apply ‘‘to only those employees 

who request FML coverage.’’ Edison 

Electric Institute, Doc. 10010A, at 3. See 

also Spencer Fane Britt & Browne LLP, 

Doc. 10133C, at 42 (employers who have 

a written FMLA policy should receive 

‘‘safe harbor’’ protection and be 

permitted to enforce procedural 

requirements such as that FMLA leave 

requests be in writing, that the FMLA be 

specifically mentioned, and that the 

requests go to a particular centralized 

source). 

Several stakeholders recommended 

allowing employers to enforce employee 

compliance with established attendance 

and leave notification procedures, 

particularly with respect to intermittent 

unscheduled FMLA leave. ‘‘The 

regulations should expressly provide 

that the employer may enforce any 

generally applicable leave notification 

or call-off requirements, even if the 

FMLA is also involved.’’ Ohio Public 

Employer Labor Relations Association, 

Doc. FL93, at 4. See also Association of 

Corporate Counsel, Doc. FL31, at 10 

(‘‘DOL should * * * make clear that an 

employee may be subject to an 

employer’s disciplinary process for 

failure to provide timely notice or to 

comply with the employer’s written 

notification policy.’’); Miles & 

Stockbridge, P.C., Doc. FL79, at 4 (‘‘A 

possible remedy * * * would be to 

require an employee taking intermittent 

leave to provide notice of the need to 

take intermittent leave consistent with 

the employer’s call out procedures and/ 

or sick leave/absentee policy. 

Additionally, at the time of the 

employee’s call, the employee should be 

required to indicate that the reason for 

the absence is because of the FMLA 

qualifying chronic condition.’’); 

National Association of Convenience 

Stores, Doc. 10256A, at 5 (‘‘Employers 

should also have the flexibility to 

impose more stringent internal notice 

requirements upon employees, and to 

impose leave forfeiture provisions for 

their non-compliance.’’); University of 

Wisconsin-Milwaukee, Doc. 10098A, at 

4 (‘‘Requiring employees to comply with 

regular attendance policies unless there 

is a ‘medical’ emergency would be one 

way to rectify the problem of employees 

failing to notify the employer of the 

need for unforeseeable leave. 

Intermittent, unscheduled FMLA does 

not necessarily imply a ‘medical 

emergency’ which makes regular 

notification impossible.’’); American 

Electric Power, Doc. FL28, at 2–3 (‘‘The 

regulations should be reformed to allow 

employers to enforce attendance 

policies that require employees to 

observe reasonable reporting-off 

protocols, including policies that 

require employees to report off to their 

direct supervisors or to a designated 

person in human resources.’’). 

D. Employer Notification That Leave Is 

FMLA-Qualifying 

In order to allow employees to know 

when they are using their FMLAprotected leave, the regulations state 

that ‘‘it is the employer’s responsibility 

to designate leave, paid or unpaid, as 

FMLA-qualifying, and to give notice of 

the designation to the employee.’’ 29 

CFR 825.208(a). It is the Department’s 

intent that such designation occur ‘‘up 

front’’ whenever possible, to eliminate 

protracted ‘‘after the fact’’ disputes. See 

60 FR 2180, 2207–08 (January 6, 

1995).12 Notification that the leave is 

FMLA-qualifying and the specific notice 

required to be provided by employers 

are essential means by which employees 

learn of their FMLA rights and 

obligations. Several employers provided 

information on this topic. 

With regard to the notice procedures 

employers actually use, one commenter 

stated that its notification procedures 

are ‘‘working quite well,’’ because it 

includes FMLA information during new 

employee orientation and has trained its 

supervisory workforce to recognize 

potential covered absences. FNG Human 

Resources, Doc. FL13, at 4. It stated that 

supervisors notify the personnel office, 

which mails out contingent FMLA 

notices and certification paperwork 

with instructions on how to have it 

completed, and the notice includes a 

statement of all employee rights and 

responsibilities. This employer allows 

employees 20 days to return the 

certification forms (more than the 

required 15 days), in order to cover 

mailing time and because some medical 

providers have a slow completion rate. 

Once the paperwork is received, ‘‘we 

keep both the employee and supervisory 

personnel abreast of updates and 

approvals.’’ Id. 

The Pennsylvania Turnpike 

Commission stated that its ‘‘process 

works great for our company and 

everyone is kept abreast of their FMLA 

status.’’ The Pennsylvania Turnpike 

Commission, Doc. 10092A, at 5–6. It 

described that when it receives a 

certification form, employees are sent a 

letter stating whether the leave is 

approved or denied, with a starting date 

and expiration date if approved. It 

reminds the employee’s supervisor a 

week prior to the expiration date, who 


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reminds the employee that the leave is 

expiring. If the employee needs 

additional leave, the employee 

recertifies. 

The Ohio Department of 

Administrative Services similarly noted 

that it understands that an employee’s 

awareness of FMLA rights and 

responsibilities ‘‘is critical to fulfilling 

the goals of the statute,’’ and therefore 

employees are given notice of the State’s 

FMLA policy upon their hire and 

notices also are posted. Doc. 10205A, at 

4. The State also notifies employees of 

their rights verbally within two days of 

designating leave as FMLA leave, and 

confirms the designation in writing by 

the following payday. Employees 

receive notice the first time they are 

granted FMLA leave in each six-month 

period. The State noted that sending a 

letter to employees with chronic 

conditions every time they request 

FMLA leave for such a condition could 

‘‘serve as an additional opportunity for 

communication,’’ but it believes that 

such notice would be very burdensome. 

Id. at 5. The State also supported 

eliminating the requirement to notify 

employees that their leave will be 

counted as FMLA leave when an 

employee has requested FMLA leave in 

writing or a verbal request has been 

appropriately documented. See id. 

One commenter stated that it also 

advises employees verbally that their 

leave is FMLA-qualifying and then 

follows up with a letter. ‘‘If they have 

already used some FMLA in the last 12 

months, I will include in the letter the 

amount of leave still available to them. 

In the case of intermittent leave I will 

carefully explain our rolling 12 month 

period and give them a copy of the 

attendance controller on which I 

recorded their leave and, again, 

carefully explain that on the anniversary 

date of time used, that amount will 

become available for them to use.’’

Elaine G. Howell, H.R. Specialist, 

International Auto Processing, Inc., Doc. 

4752, at 1. 

Another commenter stated that it 

notifies employees that their leave has 

been designated as FMLA leave by 

sending the employees a letter 

confirming that their rights under the 

FMLA have been reviewed and the 

leave conditionally designated, pending 

proper doctor certification. Franklin 

County Human Resources Department, 

Doc. FL59, at 7. The University of 

Washington noted that it mails a written 

notification to eligible employees after a 

health-related three-day absence. See 

University of Washington, Doc. FL17, at 

2–3. 

The National Coalition to Protect 

Family Leave stated that many of its 

members follow the regulations for 

designating leave at sections 825.301(b) 

(specific notice of rights and 

responsibilities) and 825.208(b)(2) 

(payroll stub or other written 

designation). However, it stated that 

some employers are not aware of both 

provisions, and that the designation 

process is confusing when an employer 

provisionally designates leave when the 

employer does not have sufficient 

information to make a final 

determination within two days. The 

Coalition suggested that the regulations 

should allow the ‘‘official ‘designation’

notice to be sent to employees after 

sufficient information is received from 

the employee to make a determination 

whether the leave qualifies for FMLA 

protections as part of the section 

825.301 notice obligations (rights and 

responsibilities requirement). No further 

designation should be required. 

Employers should simply have the 

obligation to provide the employees 

with FMLA usage information on 

request[.]’’ National Coalition to Protect 

Family Leave, Doc. 10172A, at 42. 

One commenter suggested, as a 

possible improvement that would allow 

employees to receive more accurate 

information on their FMLA leave 

balances, that employees should keep 

their own records and also ask ‘‘the 

employer for a copy of their FMLA 

records and report any discrepancies 

within a specified amount of time to be 

resolved.’’ Bendix Commercial Vehicle 

Systems LLC, Doc. 10079A, at 9. 

Another commenter similarly suggested 

that employers should be required ‘‘to 

make a good faith effort to provide 

employees with information about their 

eligibility status and FMLA leave 

balances within a reasonable amount of 

time, upon request by an employee[,]’’

but employees also should be required 

to track their own hours and notify the 

employer if they dispute the employer’s 

data. Spencer Fane Britt & Brown LLP, 

Doc. 10133C, at 43. This commenter 

contended that an employee’s FMLA 

rights should be ‘‘no greater than they 

would otherwise be if the employer 

either fails to provide the information or 

inadvertently provides inaccurate 

information.’’ Id. 

E. Timing Issues 

The Request for Information sought 

comments on whether the two day time 

frame for employers to notify employees 

that their request for FMLA leave has 

been approved or denied was adequate. 

The majority of comments on this 

topic indicated that the current two-day 

time frame was too restrictive. See, e.g., 

United Parcel Service, Doc. 10276A, at 

10 (‘‘In most cases, the initial 

notification of an absence or need for 

leave is received by front-line 

management, who conveys the 

information up the chain of command 

and to the local HR representative, who 

notifies the FMLA administrator, who is 

ultimately responsible for making a 

determination. It is not unusual for it to 

take one to two business days just for 

the right personnel to receive the 

information, much less make a 

determination and communicate it back 

to the employee.’’); Courier Corporation, 

Doc. 10018A, at 4 (‘‘The two-day 

timeframe is way too short for notifying 

employees about their leave request, 

since as employers we are often chasing 

information from the employee or 

physician.’’); Spencer Fane Britt & 

Browne LLP, Doc. 10133C, at 42 (‘‘For 

most employers, this is virtually 

impossible. Although most employers 

designate leave within a reasonable time 

frame, it is usually well outside the twoday time frame, thus creating a risk that 

the designation will be ineffective.’’). 

Employers suggested varying 

timeframes to replace the two-day limit. 

See, e.g., Fisher & Phillips LLP, Doc. 

10262A, at 15 (fifteen days from receipt 

of a certification form); National 

Coalition to Protect Family Leave, Doc. 

10172A, at 48 (ten business days); 

Association of Corporate Counsel, Doc. 

FL31, at 11 (five working days); Courier 

Corporation, Doc. 10018A, at 4 (five 

days); United States Postal Service, Doc. 

10184A, at 5 (same); Northrop 

Grumman Newport News Shipbuilding 

and Dry Dock Company, Doc. FL92, at 

3 (same); Spencer Fane Britt & Browne 

LLP, Doc. 10133, at 42 (suggesting a 

reasonableness standard). 

One employer stated that while some 

decisions can be made in two days, even 

a week might not be sufficient in other 

cases, depending upon the amount of 

information supplied by an employee 

and whether clarification is needed 

from the health care provider. See 

Elaine G. Howell, H.R. Specialist, 

International Auto Processing, Inc., Doc. 

4752, at 1. Other commenters similarly 

stated that the two-day time frame for 

providing notification to employees that 

FMLA leave has been approved or 

denied is inadequate, ‘‘as there are 

many factors which result in delays in 

both obtaining information and 

processing requests.’’ Hinshaw & 

Culbertson LLP, Doc. 10075A, at 5. 

With regard to possible alternative 

requirements, Jackson Lewis suggested 

employers should not be required to 

designate absences as FMLA-qualifying 

within two days, ‘‘as long as the 

employee is receiving the protections of 

the FMLA[,]’’ and that a regulation 

could allow employers to preliminarily 


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designate absences as FMLA-qualifying, 

subject to the ‘‘employees ‘‘opting out’’

of FMLA leave’’ or the employer 

establishing that the condition does not 

qualify. Doc. FL71, at 8. The commenter 

stated this ‘‘would bring greater 

certainty and closure to absence 

management for absences by imposing a 

periodic ‘‘employee-employer’’

reconciliation of FMLA leave.’’ Id. at 9. 

Alternatively, Jackson Lewis suggested 

that a regulation could ‘‘require that 

employers advise employees in general 

notices that they must specifically 

request FMLA leave for all absences of 

less than one week in duration,’’ and 

that employers should be allowed ‘‘to 

designate retroactively absences that 

initially were not classified by either the 

employer or employee as FMLA but 

would, in retrospect, qualify as 

intermittent leave under the FMLA.’’ Id. 

See also Fairfax County Public Schools, 

Doc. 10134A, at 3–4 (in order to focus 

on the outcome [12 weeks of leave] 

rather than the application process, 

employers could be required to notify 

employees annually that, if they have 

one year of service and 1,250 hours, 

they are entitled to FMLA leave and 

then the burden should be on 

employees to contact the designated 

official to apply). 

Another commenter suggested that, 

because employers experience problems 

with giving proper notice when 

employees do not provide prompt and 

proper notice of their need for leave, 

‘‘DOL should implement detailed 

regulations which provide necessary 

language or actions that must be taken 

by employees to put their employers on 

notice of their intent to take FMLA 

leave. As a result, employers will be 

significantly better equipped to execute 

their responsibilities under the Act, 

including, but not limited to notifying 

employees that the leave in question 

will count as FMLA leave.’’ Williams 

Mullen, Doc. FL124, at 2. See also Miles 

& Stockbridge, P.C., Doc. FL79, at 5 

(designation difficulties could be 

eliminated by requiring employees ‘‘to 

request the leave be designated as 

FMLA leave in writing’’ either prior to 

or within three days of the absence); 

Betsy Sawyers, Director, Human 

Resources Department, Pierce County, 

Washington, Doc. FL97, at 4 

(responsibility for requesting FMLA 

leave should be shifted to employee so 

employer does not have to ‘‘second 

guess or request additional explanation 

from the employee’’ or, alternatively, 

broaden an employer’s ability to 

retroactively designate FMLA leave to 

include entire period of leave). Another 

commenter noted that it would like the 

regulations to provide further guidance 

on making retroactive FMLA 

designations when an employee has 

initial absences that do not qualify for 

FMLA leave, but the health condition 

develops over a period of time. City of 

Eugene Human Resource & Risk 

Services, Doc. 10069A, at 1. 

Another commenter emphasized the 

hardships employees suffer when they 

do not know promptly whether the 

employer believes they are entitled to 

protected leave. The commenter stated 

that companies do not respond within 

the required two business days, so 

employees either do not take the time 

off that they (or their family members) 

need, or else they take off but are afraid 

because they do not know whether they 

will be subject to discipline for being off 

work. Frasier, Frasier & Hickman, LLP, 

Doc. FL60, at 1–3. The commenter gave 

an example of an employee who was not 

advised of his FMLA leave status until 

approximately 60 days after he 

submitted a certification form. This 

commenter suggested finding some 

means of making employers respond 

timely to requests for leave. Similarly, 

the International Association of 

Machinists and Aerospace Workers 

suggested that employers should be 

‘‘required to promptly inform workers 

when they are using their FMLA leave, 

and to provide copies of FMLA leave 

balances,’’ rather than putting this 

burden on employees, because 

employees can be confused as to which 

days their employer has counted as 

FMLA leave and which it has not. Doc. 

10269A, at 3. See also 9to5, National 

Association of Working Women, Doc. 

10210A, at 3 (same). 

One commenter noted that 

‘‘[m]istakes about an employee’s 

eligibility under the FMLA can be costly 

for both employers and employees. 

Certainty in this area is critical.’’

National Multi Housing Council and 

National Apartment Association, Doc. 

10219A, at 2. However, other comments 

indicate that certainty may be difficult 

to achieve promptly. For example, the 

Ohio Department of Administrative 

Services noted that, because the 1,250 

hours of work test involves 

distinguishing between active work and 

paid time off, such as vacation time, 

sick leave, bereavement leave, holidays, 

personal leave, etc., ‘‘eligibility 

determinations continue to bring 

confusion to employers and their 

managers. In light of the difficult fact 

patterns that oftentimes accompany 

eligibility determinations, the State of 

Ohio recommends that the Department 

implement a ‘‘safe harbor’’ provision to 

exempt employers from penalties when 

employers follow the regulatory 

requirements and make a good faith 

eligibility determination that is later 

overturned by a court or other 

authoritative body.’’ Ohio Department of 

Administrative Services, Doc. 10205A, 

at 1. (Penalties arising from an 

employer’s failure to follow the 

regulatory requirements concerning 

notice are addressed in Chapter II of the 

Report.). 

AVAYA Communication similarly 

noted that calculating the 1,250 hours of 

work is a time consuming process for 

employers, and that ‘‘it is difficult to 

obtain an accurate number of hours 

worked in time for the notification letter 

to go out promptly.’’ Doc. FL33, at 1. 

Therefore, the commenter 

recommended allowing employers a 

grace period within which to determine 

whether employees are eligible for 

leave. Another commenter believed that 

employers should simply have to advise 

an employee who does not have the 

requisite 1,250 hours of service of that 

conclusion, and the employer should 

not be required to advise the employee 

when s/he will be eligible for FMLA 

leave because that timing is difficult to 

predict. Pilchak Cohen & Tice, P.C., 

Doc. 10155A, at 5. See also United 

Parcel Service, Doc. 10276A, at 7–8 

(objecting to any revision to the 

regulations that would require 

‘‘employers to provide periodic or ondemand updates about the amount of 

FMLA leave remaining to employees’’). 

On the other hand, another 

commenter noted that it uses a tracking 

program related to its payroll system 

that tells it whether ‘‘the employee has 

been employed one year, worked 1250 

hours in the prior twelve months, and 

the number of weeks they are eligible 

[based on] any previous leaves 

associated with FMLA. A notice is sent 

to the employee within 48 hours of their 

request.’’ AM General LLC, Doc. 

10073A, at 2. Another employer 

similarly stated that it determines 

whether employees are eligible by 

running a report through the payroll 

system to track the number of hours 

worked in the past 12 months, but then 

spends ‘‘an unusual amount of time’’

determining how much FMLA leave the 

employee already has used. Elaine G. 

Howell, H.R. Specialist, International 

Auto Processing, Inc., Doc. 4752, at 1. 

One law firm suggested that the 

Department’s regulations may be the 

cause of employer confusion over their 

notice responsibilities. ‘‘The 

Regulations include several notice 

obligations, which we believe are not all 

necessary and have simply created more 

FMLA paperwork than is really 

necessary.’’ Spencer Fane Britt & 

Browne LLP, Doc. 10133C at 41. ‘‘The 


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13The certification provision does not apply to 

requests for leave to care for a healthy newborn or 

newly placed child under 29 U.S.C. 2612(a)(1)(A) 

and (B). 

Regulations do not include in one 

provision all of the applicable time 

frames and when they apply. Employers 

struggle over provisions requiring 

preliminary designations, final 

designations, when designations can be 

made retroactively, whether to designate 

leave as FMLA leave when an 

incomplete certification is returned, and 

when the ‘‘two-day’’ designation rule 

applies.’’ Id. at 41–42. 

Finally, 53 Democratic Members of 

Congress recognized the potential for 

confusion concerning employer notice 

obligations. 

The Department mentions a few of the 

notice issues that have arisen under the 

FMLA. While it is true that the statute is not 

perfectly clear in elaborating the notice 

obligations of employees and employers 

under the FMLA, it is not clear that the 

Department can fully resolve the issues 

through revisions in regulation alone. It 

would be helpful for the Department to ask 

Congress to clarify how the notice motions of 

the Act apply. The law or the regulations 

should put forth a clear and commonsense 

regime by which employers would notify 

workers of their rights and responsibilities 

under the Act, workers would be required to 

notify their employers of their need to take 

FMLA leave, and employers would be 

required to notify workers of their approval 

or denial of FMLA leave as well as the term 

of any approval or reasons for any denial and 

appeal rights. Clearer notice requirements 

would also resolve any issues related to the 

‘‘duration’’ of leave. 

Letter from 53 Democratic Members of 

Congress, Doc. FL184 at 3. 

On the other hand, a few commenters 

indicated that the two-day time frame is 

adequate. One commenter stated that 

the ‘‘two-day rule is not an issue when 

you are aware of a possible FMLA event 

on the first day of eligibility[,]’’ because 

the contingent notice can be mailed or 

handed to the employee immediately, 

but problems arise when the possible 

FMLA coverage is not known until later, 

such as when the employee returns to 

work. FNG Human Resources, Doc. 

FL13, at 5. However, this employer 

allows the employee to apply at that 

time and gives them the paperwork 

immediately. The National Partnership 

for Women & Families noted the current 

data does not support an increase in the 

time period beyond the two days 

provided. See National Partnership for 

Women & Families, Doc. 10204A, at 21 

(‘‘Most organizations spend only 

between thirty and 120 minutes of 

administrative time per FMLA leave 

episode to provide notice, determine 

eligibility, request and review 

documentation, and request a second 

opinion. Therefore, no change to the 

current two-day rule response 

requirement is warranted.’’) (footnote 

omitted). Notably, Unum Group, a 

provider of Federal and state FMLA 

administration services, stated that 

‘‘[t]he two-day timeframe for providing 

notice to an employee of his/her 

eligibility for FMLA leave is sufficient.’’

See Doc. 10008A, at 3. At the end of 

2006, Unum Group reported having 95 

customers located throughout all 50 

states and administering leaves for a 

total employee population of 585,157. 

Id. at 1. 

VI. The Medical Certification and 

Verification Process 

The Department asked several 

questions in the Request for Information 

regarding the medical certification and 

verification process. This chapter 

addresses the Department’s request for 

comments on the following issues: 

whether the regulatory restriction in 

section 825.307(a) 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 results in unnecessary expense 

or delay and what are the benefits of the 

restriction; whether the optional model 

certification form (WH–380) seeks the 

appropriate information and how it 

could be improved; whether the general 

30-day period for recertification set 

forth in section 825.308 is an 

appropriate time frame; whether second 

opinions should be allowed on 

recertifications; and whether employers 

should be allowed to request a fitness 

for duty certification for an employee 

returning from intermittent leave. This 

chapter also addresses other comments 

received regarding the medical 

certification process including 

comments related to the Health 

Insurance Portability and 

Accountability Act of 1996 (‘‘HIPAA’’), 

Pub. L. 104–191, a law that was 

discussed in Request for Information but 

was not directly referenced in any 

specific questions. 

A. Statutory and Regulatory Provisions 

Regarding Medical Certification and 

Verification 

The medical certification process 

implicates several statutory and 

regulatory provisions under the FMLA. 

While the Act does not require 

employers to obtain medical 

certification in support of an employee’s 

request for leave, if an employer chooses 

to do so, it is limited in what medical 

information it may seek as well as the 

process it must go through to obtain that 

information. 

1. Statutory Provisions Regarding the 

Medical Certification and Verification 

Process 

Employers have the option of 

requiring employees who request leave 

due to their own serious health 

condition or to care for a covered family 

member with a serious health condition 

to support their need for leave with a 

certification issued by their (or their 

family member’s) health care provider. 

See 29 U.S.C. 2613(a).13 The 

information necessary for a sufficient 

certification is set forth in section 103 

of the Act. See 29 U.S.C. 2613(b). The 

statute states that a medical certification 

‘‘shall be sufficient’’ if it states the 

following: the date the condition 

commenced; the probable duration of 

the condition; ‘‘appropriate medical 

facts’’ regarding the condition; a 

statement that the employee is needed 

to care for a covered family member or 

a statement that the employee is unable 

to perform the functions of his/her 

position (as applicable); dates and 

duration of any planned treatment; and 

a statement of the medical necessity for 

intermittent leave and expected 

duration of such leave. Id. 

In cases in which the employer has 

reason to doubt the validity of the 

certification provided by the employee, 

the statute allows the employer to 

require the employee to obtain a second 

opinion from a health care provider of 

the employer’s choice and at the 

employer’s expense. See 29 U.S.C. 

2613(c). Where the first and second 

opinions differ, the employer may 

require the employee to obtain a binding 

third opinion from a health care 

provider selected jointly by the 

employer and employee (and paid for by 

the employer). See 29 U.S.C. 2613(d). 

Finally, the statute allows the employer 

to require the employee to provide 

subsequent recertifications from the 

employee’s health care provider on a 

reasonable basis. See 29 U.S.C. 2613(e). 

In addition to the certification of the 

need for leave due to the employee’s or 

a covered family member’s serious 

health condition, the statute also allows 

employers to require certification of the 

employee’s ability to return to work 

following leave for his or her own 

serious health condition as a 

precondition to job restoration under 

certain circumstances. See 29 U.S.C. 

2614(a)(4). An employer’s request for a 

return-to-work certification must be 

pursuant to a uniformly applied practice 

or policy. Id. Where an employee’s 


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return to work is governed by the terms 

of a collective bargaining agreement or 

State or local law, however, the FMLA 

does not supersede those procedures. Id. 

2. Regulatory Provisions Regarding the 

Medical Certification and Verification 

Process 

The regulations flesh out the 

procedures employers must follow 

when utilizing the tools provided them 

in the Act for verifying an employee’s 

need for FMLA leave. In general, 

sections 825.305 and 825.306 address 

the initial medical certification, section 

825.307 sets forth the employer’s 

options for verifying the information in 

the initial certification, section 825.308 

details the employer’s right to seek 

subsequent recertification, and sections 

825.309 and 825.310 address the 

employer’s ability to require 

certification of the employee’s ability to 

return to work following FMLA leave 

due to their own serious health 

condition. 

Section 825.305 requires an employer 

to notify the employee in writing if the 

employer is going to require medical 

certification for the leave (subsequent 

requests for recertification may be oral). 

See 29 CFR 825.305(a). Section 825.305 

also sets forth the general rule that 

employers must allow employees at 

least 15 calendar days to provide the 

certification and that, where time 

allows, employees should provide the 

certification prior to the commencement 

of foreseeable leave. See 29 CFR 

825.305(b). While employers are 

generally expected to inform employees 

that certification will be required at the 

time the leave is requested or, if the 

leave is unforeseen, within two business 

days of the leave commencing, 

employers may request certification at a 

later time if they have reason to 

question the appropriateness or 

duration of the leave. See 29 CFR 

825.305(c). Employers are required to 

inform employees of the consequences 

of not providing the requested 

certification and to advise the employee 

if the certification is incomplete and 

allow an opportunity for the employee 

to cure any deficiency. See 29 CFR 

825.305(d). If the employer’s sick leave 

plan’s certification requirements are less 

stringent and the employee or the 

employer exercises the option to 

substitute paid sick leave for unpaid 

FMLA leave, the employer may only 

require compliance with the less 

stringent certification requirements of 

the paid leave plan. See 29 CFR 

825.305(e). 

Section 825.306 of the regulations sets 

forth the information required for a 

complete certification, which may be 

provided on the Department’s optional 

WH–380 form or any other form 

containing the same information. See 29 

CFR 825.306. Section 307 governs the 

employer’s ability to seek clarification 

and authentication of, and a second 

and/or third opinion on, the employee’s 

medical certification. See 29 CFR 

825.307. This section makes clear that 

an employer may not require 

information beyond that set forth in 

section 306, but that the employer’s 

health care provider may seek 

clarification or authentication of the 

information in the certification from the 

employee’s health care provider with 

the employee’s permission. See 29 CFR 

825.307(a). Section 307 also makes clear 

that where an employee’s FMLA leave 

is also covered by workers’

compensation, the employer may follow 

the workers’ compensation procedures 

if they allow for direct contact with the 

employee’s health care provider. See 29 

CFR 825.307(a)(1). If the employer has 

reason to question the validity of the 

certification, the employer may require 

the employee to obtain a second opinion 

at the employer’s expense and with a 

health care provider selected by the 

employer. See 29 CFR 825.307(a)(2). If 

the second opinion conflicts with the 

employee’s original certification, the 

employer may require the employee to 

obtain a binding third opinion at the 

employer’s expense from a health care 

provider selected jointly by the 

employer and the employee. See 29 CFR 

825.307(c). If it is ultimately determined 

as a result of the second and/or third 

opinion process that the employee is not 

entitled to FMLA-protected leave, the 

leave shall not be designated as FMLAcovered and the employer may treat the 

leave under its established policies. See 

29 CFR 825.307(a)(2). 

Section 308 of the regulations sets 

forth the conditions under which an 

employer may request recertification of 

the employee’s (or covered family 

member’s) serious health condition. See 

29 CFR 825.308. Generally, employers 

may not request recertification more 

often than once every 30 days and only 

in connection with an absence. Where 

the initial certification indicates a 

minimum period of incapacity in excess 

of 30 days, recertification may not be 

requested until the initial period of 

incapacity indicated has passed. See 29 

CFR 825.308(b)(1). In all instances, 

employers are allowed to request 

recertification if there is a significant 

change in circumstances regarding the 

leave or if the employer receives 

information that casts doubt on the 

employee’s stated reason for the 

absence. See 29 CFR 825.308(a)–(c). 

Employers must allow employees at 

least 15 days to provide recertification. 

See 29 CFR 825.308(d). Recertifications 

are at the employee’s expense and 

completed by the employee’s health 

care practitioner. Employers are not 

permitted to request second opinions on 

recertifications. See 29 CFR 825.308(e). 

Finally, sections 825.309 and 825.310 

of the regulations govern requirements 

for the employee’s return to work. 

Employers may require employees to 

report periodically on their intention to 

return to work. See 29 CFR 825.309(a). 

If an employee states an unequivocal 

intention not to return to work the 

employer’s obligations under the FMLA 

cease. See 29 CFR 825.309(b). Where an 

employee needs more or less leave than 

originally requested, the employer may 

require the employee to provide notice 

of the changed circumstances within 

two business days where foreseeable. 

See 29 CFR 825.309(c). Employers may 

have a uniformly applied policy of 

requiring similarly situated employees 

who take leave for their own serious 

health condition to submit certification 

of their ability to return to work. See 29 

CFR 825.310(a). Such certification need 

only be a simple statement of the 

employee’s ability to work. See 29 CFR 

825.310(c). The employer’s health care 

provider may contact the employee’s 

health care provider, with the 

employee’s permission, to clarify the 

return-to-work certification but may not 

request additional information and may 

not delay the employee’s return to work. 

Id. The employee bears the cost of 

providing the return to work 

certification. See 29 CFR 825.310(d). 

Where state or local law or the terms of 

a collective bargaining agreement 

govern an employee’s return to work, 

those provisions shall apply. See 29 

CFR 825.310(b). Employers are required 

to provide employees with advance 

notice of the requirement to provide a 

return-to-work certification. See 29 CFR 

825.310(e). Where an employee has 

been given appropriate notice of the 

requirement to provide a return-to-work 

certification, the employee’s return from 

leave may be delayed until the 

certification is provided. See 29 CFR 

825.310(f). Return-to-work certifications 

may not be required for employees 

taking intermittent leave. See 29 CFR 

825.310(g). Employers may not require a 

second opinion on return-to-work 

certifications. See 29 CFR 825.310(e). 

B. Comments Regarding the Medical 

Certification and Verification Process 

1. Medical Certification Process 

Both employers and employees 

expressed frustration with the medical 


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certification process. As discussed 

below, employers generally expressed 

frustration with their ability to obtain 

complete and clear certifications. 

Employees expressed frustration with 

employers determining that a 

certification is incomplete but not 

informing the employee what additional 

information is necessary to satisfy the 

employer’s concerns. Some commenters 

noted that these repeated requests for 

additional information are causing 

tension in the doctor/patient 

relationship. Overall, the comments 

make clear that the certification process 

is a significant source of friction 

between employees and employers: The 

two groups, however, attribute the 

source of the friction to very different 

causes. 

a. Complete Certifications 

Multiple employers commented that a 

complete certification should require 

not just that the certification form is 

filled-out, but that meaningful responses 

are given to the questions. See, e.g., 

Jackson Lewis LLP, Doc. FL71, at 5 

(‘‘The rule prohibiting employers from 

asking any additional information once 

an employee submits a completed 

medical certification ignores the reality 

that a technically ‘completed’

certification may offer little insight into 

the need for FMLA leave, much less the 

medical necessity for leave on an 

intermittent basis.’’); National Coalition 

to Protect Family Leave, Doc. 10172A, at 

47 (‘‘If health care providers * * * do 

not provide direct responses to the 

questions, the regulations should be 

modified to specify that the certification 

is not considered ‘complete’ for 

purposes of the employee’s certification 

obligations, thereby not qualifying the 

employee for FMLA leave.’’); South 

Central Human Resource Management 

Association, Doc. 10136, at 11 (‘‘We 

recommend the Regulations make clear 

that a ‘complete’ certification is 

required, that meaningful answers have 

to be furnished for all questions, and 

that a certification is ‘incomplete’ if a 

doctor provides ‘unknown’ or ‘as 

needed’ to any question.’’). A 

commenter who had represented several 

employees in FMLA suits disagreed, 

however, stating that ‘‘in order to avoid 

protracted litigation over these issues, 

once completed and signed by a 

physician, the model certification form 

should be considered final and 

binding.’’ Kennedy Reeve & Knoll, Doc. 

4763A, at 14. 

Commenters’ frustration with vague 

and nonspecific responses on 

certifications was greatest in regard to 

certifications for intermittent leave due 

to chronic conditions. See, e.g., Federal 

Reserve Bank of Chicago, Doc. FL56, at 

2 (‘‘We often see health care providers 

list the duration of an employee’s 

chronic condition as ‘indefinite’ or 

‘lifetime’ and indicate that the 

frequency of the episodes of incapacity 

as ‘unknown.’ This makes it very 

difficult to manage employee 

attendance.’’); City of Portland, Doc. 

10161A, at 2 (‘‘The certifications, 

particularly for chronic conditions, are 

often so vague as to be useless.’’); South 

Central Human Resource Management 

Association, Doc. 10136, at 11 (‘‘If a 

doctor cannot venture an estimate as to 

how often an employee will have a true 

medical need to be absent, we question 

whether the doctor is competent to 

evaluate the condition.’’); Society for 

Human Resource Management, Doc. 

10154A, at 8 (‘‘Notations such as 

‘lifetime,’ ‘as needed,’ or other similarly 

vague statements ought not suffice. 

Health care providers in particular 

should be required to provide as much 

detail as possible on the total amount of 

intermittent leave that is needed or 

allow employers to deny the leave.’’). 

The American Academy of Family 

Physicians, however, noted that such 

responses are appropriate in some 

circumstances: 

Intermittent leave is problematic for the 

certifying physician and employer. 

Employers have noted that with respect to 

the frequency of the episode of incapacity, 

the physician might write ‘‘unknown.’’

Employers argue that this leaves them in the 

difficult position of guessing about the 

employee’s regular attendance. However, the 

frequency of incapacity in chronic conditions 

such as migraine headaches is not 

predictable, making ‘‘unknown’’ the 

appropriate answer to the question. * * * It 

is worth noting that despite medical 

advances, absolute cures do not exist for all 

conditions making the duration of these 

conditions ‘‘indefinite’’ or ‘‘lifetime’’ from 

the current medical perspective. 

American Academy of Family 

Physicians, Doc. FL25, at 2–3. Other 

commenters echoed the point that 

specific estimates of the frequency and 

duration of intermittent leave due to the 

flare-up of a chronic condition cannot 

always be made. See, e.g., An Employee 

Comment, Doc. 4668, at 1 (‘‘The Doctor 

should simply state that the person has 

a covered condition and how long the 

person will need to take time off and 

when, if known. If unknown the Doctor 

should be able to say just that.’’); 

Association of Professional Flight 

Attendants, Doc. 10056A, at 10 

(recounting employee’s sending over 25 

pages of medical documentation in an 

effort to satisfy employer’s questions 

regarding frequency and duration of 

need for leave due to chronic 

conditions); Mark Blick DO, Rene 

Darveaux MD, Eric Reiner MD, Susan R. 

Manuel PA–C, Doc. FL292, at 1 (‘‘The 

form also asks us to estimate how often 

a patient may need to miss work and 

then wants patient to fill a new form if 

they miss more than we estimate. 

Unfortunately, we in health care do not 

have a crystal ball to know the precise 

number of days patients may miss.’’). As 

the Communication Workers of America 

noted, when it comes to the frequency 

and duration of leave due to a chronic 

condition employers are searching for 

certainty in response to a question 

which asks the health care provider for 

an estimate. Doc. R346A, at 10 (‘‘The 

current certification form recommended 

by DOL makes it clear that the doctor is 

being asked to estimate the likely 

frequency and duration of any absences 

(‘probable duration’ ‘likely duration and 

frequency’), yet many employers seem 

to expect a definitive prediction and 

deny leaves that exceed the estimates 

provided on the original certification 

form.’’). 

b. Incomplete Certifications 

Multiple commenters also expressed 

frustration with what they perceived to 

be the open-ended nature of the 

certification process and sought 

clarification of how many opportunities 

an employee must be provided to cure 

a defective certification. See, e.g., Waste 

Management, Inc., Doc. 10240A, at 2 

(‘‘The current regulation is open to 

interpretation regarding when 

information is due and how much 

additional time should be afforded to 

employees who do not share the FMLA 

certification forms timely.’’); Ken 

Lawrence, Doc. 5228, at 1 (‘‘At the 

present time the employee is really not 

limited to any particular time (could be 

months) if they are making ‘good faith’

efforts to obtain the certification.’’); 

Federal Reserve Bank of Chicago, Doc. 

FL56, at 2 (‘‘There should be an absolute 

cut off when an employer can require 

the employee to submit a completed 

certification form and the consequence 

of not meeting that deadline is that the 

absence(s) is not covered by the 

FMLA.’’); Society for Human Resource 

Management, Doc. 10154A, at 18 (‘‘HR 

professionals often have difficulty in 

determining how many times an 

employer must give an employee an 

opportunity to ‘cure’ a deficiency, and 

how long to allow them to provide such 

a complete certification.’’). Commenters 

also sought clarification regarding the 

consequences to the employee if leave is 

taken during the certification process 

but a complete and sufficient 

certification is not ultimately provided. 


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14Several commenters also expressed concern 

that health care providers are charging employees 

to complete the certification form (and, in some 

cases, to respond to employer requests for 

clarification). See, e.g., Sun Microsystems, Inc., 

Doc. 10070A, at 2 (reporting that their employees 

have been charged between $25 and $200 to fill out 

a medical certification); FNG Human Resources, 

Doc. FL13, at 3–4 (employees charged up to $50 for 

certification); Shelly Johnson, Oklahoma State 

University, Doc. 5185, at 1 (same). 

Delaying a leave for the tardy return of a 

completed certification is meaningless 

because by the time the delayed certification 

has been returned, the employee has likely 

already taken leave (perhaps for weeks) and 

the employer can only revoke the FMLA 

designation for time already taken. The 

situation is exacerbated because the 

employer cannot reduce any of the 

employee’s FMLA balance despite the fact 

the employee was absent. As a result, the 

employee is rewarded by having the 

opportunity to take more than 12 weeks of 

leave in that given year. While the employer 

technically could terminate or discipline the 

employee for this non-FMLA time already 

taken, in all likelihood employers would be 

concerned that such an action would run 

afoul of the law’s sweeping prohibitions from 

interfering with, restraining or denying an 

employee’s leave. 

Hewitt Associates, Doc. 10135A, at 19; 

see also United Parcel Service, Doc. 

10276A, at 11 (‘‘The remedy specified in 

the regulations for an employee’s failure 

to provide adequate notice is to deny or 

delay the employee’s leave, but in these 

cases, leave has already been taken.’’); 

Foley & Lardner LLP, Doc. 10129A, at 4 

(‘‘The provision does not explain how 

long the delay may last or what the 

consequences of a ‘delay’ can be.’’); 

Sherman & Howard L.L.C., Doc. 

10252A, at 1 (‘‘The regulations should 

make clear that if an employee does not 

ultimately qualify for FMLA leave, or 

fails to provide medical certification to 

support the requested leave, the 

employee’s absence will be unprotected. 

This means that the employer may 

appropriately enforce its attendance 

policy which may result in disciplinary 

action being taken against the 

employee.’’). 

c. Employer Requests for Additional 

Information 

Employee commenters expressed 

related frustrations with the certification 

process. In particular, several 

commenters stated that employers 

repeatedly reject certifications as 

incomplete without specifying what 

additional information is necessary, 

leading to a prolonged and frustrating 

back-and-forth process. See, e.g., 

International Association of Machinists 

and Aerospace Workers, Doc. 10269A, 

at 4 (‘‘We have many members who 

have their doctors fill out the paper 

work only to be told it is not properly 

filled out. The employee fixes that 

problem and the Company tells them 

there is another problem with the paper 

work. This occurs over and over until 

finally the doctor or the employee, or 

both give up.’’); Association of 

Professional Flight Attendants, Doc. 

10056A, at 18 (‘‘[I]t is simply unfair to 

send FMLA leave requests back to the 

employees and their treating health care 

providers for more medical facts, 

without ever indicating what kinds of 

additional medical facts are required 

before the employer will make a 

determination of medical eligibility or 

medical ineligibility.’’). The 

commenters noted that these repeated 

requests for additional information force 

the employee to make additional visits 

to his or her health care provider 

(resulting in additional missed work 

and expense) and discourage the 

employee from pursuing FMLA 

protection. See, e.g., Association of 

Professional Flight Attendants, Doc. 

10056A, at 12 (‘‘[T]he Company’s 

decision to challenge somewhat 

routinely the health care provider’s 

estimate of frequency and duration 

imposes substantial burdens on the 

employee—both in terms of the cost of 

a second or third visit to the doctor’s 

office, and in terms of the time required 

to complete what is becoming a 

paperwork nightmare.’’); An Employee 

Comment, Doc. 4395, at 1 (recounting 

her personal experience with repeated 

employer requests for additional 

information regarding her daughter’s 

medical condition); An Employee 

Comment, Doc. 4668, at 1 (‘‘It should 

not be up to the employer to nitpick a 

request for FMLA coverage.’’).14

Commenters noted that repeated 

requests for additional information were 

creating tension between employees and 

their health care providers. See 

International Association of Machinists 

and Aerospace Workers, Doc. 10269A, 

at 4 (‘‘Some doctors refuse to fill out the 

exact same paperwork every 30 days, 

particularly for life-long chronic 

conditions like colitis or migraines.’’); 

Kennedy Reeve & Knoll, Doc. 4763A, at 

15 (‘‘I have been hearing more and more 

stories of doctors refusing to fill out the 

forms, thereby leaving the employee 

without recourse.’’); Lucy Walsh, 

Director, Human Resources, Providence 

Health Ministry, Doc. 10064A, at 1–2 

(‘‘Some physicians have absolutely 

refused to deal with the forms at all 

which leaves both the employee and 

employer in a dilemma.’’); Coalition of 

Labor Union Women, R352A, at 5 

(‘‘Many doctors are refusing to complete 

duplicative paperwork, resulting in 

leave denials that must be either 

appealed or pursued through the 

contract’s grievance procedures.’’). 

Some commenters viewed repeated 

employer requests for additional 

medical information as an inappropriate 

attempt by the employer to substitute its 

determination of the seriousness of the 

employee’s health condition for the 

employee’s health care provider’s 

judgment. See Coalition of Labor Union 

Women, Doc. R352A, at 4 (‘‘We have 

heard disturbing reports from our 

members that many employers are often 

‘second-guessing’ the diagnoses of 

workers’ doctors and other health care 

providers by insisting on additional 

certifications or challenging intermittent 

leave requests if the doctor’s estimate of 

the likely time needed is exceeded even 

by one or two days or in some minor 

respect. We believe that DOL should 

issue a strong reminder that employers 

are obligated to utilize the second 

opinion process established in the 

regulations.’’); Communications 

Workers of America, Doc. R346A, at 7 

(‘‘In CWA’s experience, many 

employers evidence their distaste for 

FMLA leaves by needlessly quarreling 

with the information provided by health 

care providers in support of the 

employee’s request for leave or ‘secondguessing’ the doctor under the guise of 

‘clarifying’ the information provided on 

the form.’’); Association of Professional 

Flight Attendants, Doc. 10056A, at 15 

(identifying ‘‘employer’s rejection of 

[FMLA] applications based on its 

medical staff’s disagreement with the 

health care provider’s estimate of 

duration and frequency, or treatment 

plan, without invoking the second 

doctor review’’ as one of three primary 

concerns with medical certification 

process). 

Not all commenters, however, felt the 

current certification process needed to 

be revised. One commenter noted that 

the current certification process works 

well in its workplace. 

We have trained our supervisory workforce 

to recognize even the slightest possibility of 

a covered absence. The supervisory 

personnel notify H.R. to mail out contingent 

FMLA notice and we include Certification 

paperwork with instructions on how to have 

it completed. We immediately place the 

employee on possible FMLA pending the 

receipt of certification paperwork. The notice 

covers all provisions of FMLA and necessary 

steps to rights and responsibilities. We 

actually give the employees 20 days to return 

the certification to cover the mailing time 

and some providers’ slow completion rate. 

Once all certification paperwork is received 

we keep both the employee and supervisory 

personnel abreast of updates and approvals. 

FNG Human Resources, Doc. FL13, at 

4; see also Legal Aid Society—

Employment Law Center, Doc. 10199A, 


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35592 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 

at 3 (‘‘It is the [certification procedure] 

that establishes the objective basis for 

leave based upon the informed opinion 

of the health care provider of the 

employee or family member. Despite 

this useful, practical, and commonsense 

system that was designed to evaluate 

whether any condition constitutes a 

‘serious health condition,’ many 

employers refuse to use it or use it 

improperly.’’). Several commenters 

suggested that there was no need to 

change the current certification 

procedure. See, e.g., National 

Partnership for Women & Families, Doc. 

10204A, at 19 (‘‘The existing regulations 

appropriately balance a worker’s 

interest in a manageable certification 

process that does not impose 

unreasonable burdens, with the 

employer’s interest in the accurate 

certification of medical conditions.’’); 

Faculty & Staff Federation of 

Community College of Philadelphia, 

Local 2026 of the American Federation 

of Teachers, Doc. 10242A, at 6 (same); 

Center for Law and Social Policy, Doc. 

10053A, at 4 (same); OWL, The Voice of 

Midlife and Older Women, Doc. FL180, 

at 2 (opposing any change in 

certification rules). 

2. Employer Contact With Employee’s 

Health Care Provider—Process and 

Privacy Concerns 

Both employers and employees 

commented extensively on the subject 

of employer contact with the employee’s 

health care provider. Section 825.307(a) 

of the regulations requires that 

employers may contact the employee’s 

health care practitioner for clarification 

of the medical certification only with 

the employee’s consent and the contact 

must be made through a health care 

practitioner. The employer may not use 

the clarification process to request 

additional information beyond the 

information required in the initial 

certification. See 29 CFR 825.307(a). In 

general, employers were frustrated with 

the regulatory restrictions on contact 

with the employee’s health care 

provider and employees were concerned 

that any changes to the current process 

would impinge on their medical 

privacy. 

a. Requirement That Employer 

Communicate Through a Health Care 

Provider 

Many employers commented that the 

requirement that they communicate 

only through a health care practitioner 

resulted in significant cost and delay. 

See, e.g., Milwaukee Transport Services, 

Inc., Doc. FL80, at 3 (‘‘In 2006 alone, 

MTS spent $23,000.00 for the services of 

a designated health care provider 

because it was not itself permitted 

under the FMLA regulations to ask 

questions which that provider was then 

forced to ask on its behalf.’’); City of 

Portland, Doc. 10161A, at 2 (‘‘The Act 

requires employers to use the employee 

as an intermediary to communicate with 

doctors or incur substantial costs hiring 

additional doctors to consult with 

employee physicians or, in narrow 

circumstances, to give second and third 

opinions. Greater flexibility in obtaining 

information for medical certification 

would streamline FMLA approvals.’’); 

Hewitt Associates, Doc. 10135A, at 15 

(‘‘The employer’s engagement of its own 

health care provider is expensive, takes 

additional time and ultimately delays 

the decision to approve or deny a leave 

request. Moreover, in cases when the 

employer simply wants clarification on 

the amount of time off required, it 

provides no true benefit to either the 

employer or the employee.’’). The AFL–

CIO, however, commented that ‘‘[a]ny 

expense caused by the requirement that 

employers use their own health care 

professional to contact the employee’s 

treatment provider, rather than making 

contact directly, is necessary to the 

preserve employee privacy.’’ Doc. 

R329A, at 42. 

Some commenters suggested that 

employers’ expenses could be reduced 

by permitting registered nurses to 

contact the employee’s health care 

provider. See, e.g., United Parcel 

Service, Doc. 10276A, at 8–9 (noting 

that even employers that have nurses on 

their staff are required to hire a health 

care provider to comply with section 

825.307(a) of the regulations); MedStar 

Health, Inc., Doc. 10144A, at 16–17 

(same); Manufacturers Alliance/MAPI, 

Doc. 10063A, at 7 (suggesting inclusion 

of RNs, LPNs, and physician’s assistants 

under the term ‘‘health care provider’’); 

see also American Academy of 

Physician Assistants, Doc. 10004A, at 1 

(suggesting that definition of health care 

provider in regulations should be 

broadened to include physician 

assistants). The Coalition of Labor 

Union Women, however, objected to 

broadening the definition of health care 

providers allowed to contact the 

employee’s treating physician, noting 

that its members ‘‘complain that 

employers use nurses or physician’s 

assistants who are not adequately 

trained and who repeatedly challenge 

their doctor’s diagnoses and predictions 

of leave duration and frequency, leading 

to the need for additional certifications 

and forcing the employee to take 

personal leave time to obtain new 

paperwork.’’ Coalition of Labor Union 

Women, Doc. R352A, at 6. Other 

commenters suggested that their human 

resources professionals could more 

efficiently clarify the certification with 

the employee’s health care provider 

because they were both better versed in 

the FMLA and more familiar with the 

employee’s job duties and the work 

environment than the employer’s health 

care provider. See, e.g., Association of 

Corporate Counsel, Doc. FL31, at 10 

(‘‘[T]he employer’s staff members—often 

its Human Resources employees—are 

usually more knowledgeable about the 

specific job requirements and other 

information that may be relevant or 

helpful to the employee’s health care 

provider in making his/her 

assessment.’’); Milwaukee Transport 

Services, Inc., Doc. FL80 at 3–4 (same). 

One commenter, however, suggested 

that it was appropriate that medical 

inquiries be handled by medical 

professionals. See Unum Group, Doc. 

10008A, at 3 (‘‘The regulatory 

requirement that the employee’s health 

care provider be contacted only through 

the employer’s health care 

representative is beneficial in that it not 

only protects the privacy of employees 

but also ensures that medical 

information discussed and terminology 

used while clarifying and authenticating 

complete medical certifications are 

understood and correctly interpreted.’’). 

Employers also expressed frustration 

with the scope of information they 

could request when clarifying a medical 

certification. See Sally L. Burnell, 

Program Director, Indiana State 

Personnel Department, Doc. 10244C, at 

6 (‘‘The requirement to have another 

health care provider contact the 

submitting health care provider, and 

then only for clarification of the form, 

not for additional information, 

unnecessarily complicates and 

lengthens the approval process, often 

beyond the length of the absence 

itself.’’); Jackson Lewis LLP, Doc. FL71, 

at 5 (‘‘The rule prohibiting employers 

from asking for any additional 

information once an employee submits 

a completed medical certification 

ignores the reality that a technically 

‘completed’ certification may offer little 

insight into the need for FMLA leave, 

much less the medical necessity for 

leave on an intermittent basis.’’). Several 

employee commenters, however, 

asserted that employers are already 

using the clarification process 

improperly to seek additional 

information beyond that included in the 

certification form or even to challenge 

the employee’s health care provider’s 

medical judgment. See United Steel, 

Paper and Forestry, Rubber, 

Manufacturing, Energy, Allied 


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Industrial and Service Workers 

International Union, Doc. 10237A, at 4 

(‘‘It has been our experience that some 

employers contact the health care 

provider and attempt to reschedule 

appointments, ask questions that go 

beyond the certification of serious 

health condition at issue, or even try to 

get the health care provider to change 

the medical certification, all without 

employee consent.’’); Communications 

Workers of America, Doc. R346A, at 10 

(‘‘In CWA’s experience, there is 

currently widespread non-compliance 

with the intent of the current regulation 

[29 CFR 825.307] limiting employer 

contact with employee health care 

providers to those circumstances where 

‘clarification’ or ‘authentication’ are 

necessary.’’). 

b. Requirement of Employee Consent for 

Contact 

Several commenters asserted that the 

requirement that an employer obtain 

employee consent prior to contacting 

the employee’s health care provider 

makes it extremely difficult for 

employers to investigate suspected 

fraud related to medical certifications. 

See, e.g., Robert Haynes, HRCompliance Supervisor, Pemco 

Aeroplex, Inc, Doc. 10100, at 1 (noting 

difficulty in investigating fraud when 

employee’s consent is necessary for the 

employer to authenticate form with 

employee’s health care provider); Ohio 

Public Employer Labor Relations 

Association, Doc. FL93, at 5–6 (same); 

United States Postal Service, Doc. 

10184A, at 15 (suggesting that a ‘‘simple 

and fair way to remedy this problem is 

to allow an employer to make contact 

with the provider for the purpose of 

confirming authenticity’’); Taft, 

Stettinius & Hollister LLP, Doc. FL107, 

at 6 (‘‘Where authenticity is suspect, the 

employer’s inquiry is not medically 

related but rather, is intended to 

determine whether the employee’s 

health care provider issued the 

certificate and that it has not been 

altered. In such circumstances, the 

restrictions contained in Section 

825.307(a) serve no useful purpose, 

impose unnecessary expense on 

employers, and are not justified by any 

language in the Act.’’). Honda suggested 

that the regulations should distinguish 

between contacts by the employer to 

confirm administrative details and 

contacts related to substantive medical 

discussions: ‘‘[T]he FMLA Regulations 

should be amended to permit the 

employer to contact the employee’s 

health care provider’s office to confirm 

date, time and place of appointments, 

but not permit the employer to discuss 

the medical facts, the need for leave and 

the frequency and duration of leave 

with the employee’s health care 

provider.’’ Honda, Doc. 10255A, at 11–

12. Other commenters suggested that the 

process for seeking medical information 

under the FMLA should be consistent 

with the procedure set forth under the 

Americans with Disabilities Act. See 

infra Chapter VII. 

c. Employee Privacy Concerns 

Finally, many commenters expressed 

concern that any changes to the 

regulations governing contact between 

their employers and their health care 

providers would compromise their right 

to medical privacy. See, e.g., An 

Employee Comment, Doc. 4019, at 1 (‘‘I 

also oppose any regulatory changes that 

would allow employers to directly 

contact a worker’s health care provider, 

which unnecessarily violates the 

worker’s right to keep medical 

information confidential.’’); 9to5, 

National Association of Working 

Women, Doc. 10210A, at 4 (‘‘We also 

oppose any regulatory changes that 

would allow employers to directly 

contact a worker’s health care provider, 

which unnecessarily violates the 

worker’s right to keep medical 

information confidential.’’); Faculty & 

Staff Federation of Community College 

of Philadelphia, Local 2026 of the 

American Federation of Teachers, Doc. 

10242A, at 6 (same); United Steel, Paper 

and Forestry, Rubber, Manufacturing, 

Energy, Allied Industrial and Service 

Workers International Union, Doc. 

10237A, at 4 (same). Another 

commenter stated, ‘‘[w]orkers have the 

right to keep their medical information 

confidential and not have irrelevant 

health status information affect their 

employers’ decisions.’’ Families USA, 

Doc. 10327A, at 5. Moreover, the 

National Partnership for Women and 

Families noted that the Department 

already considered issues relating to the 

employer’s need for medical 

information and the employee’s right to 

medical privacy and struck the 

appropriate balance back in 1995 with 

the final regulations: ‘‘DOL has already 

considered comments regarding 

concerns about an employer’s ability to 

obtain medical information from a 

health care provider. The interim [1993] 

FMLA regulations entirely prohibited an 

employer from contacting the health 

care provider of the employee or the 

employee’s family member. In response 

to a number of comments, * * * DOL 

amended the regulations to allow an 

employer’s health care provider to 

contact an employee’s or a family 

member’s health care provider to clarify 

or authenticate the information in this 

medical certification. In arriving at this 

compromise, DOL limited this contact 

to an employer’s health care provider to 

protect the privacy interests of 

employees and their families and ensure 

that their medical information was only 

being shared between medical 

professionals.’’ Doc. 10204A, at 20 

(footnotes omitted); see also Service 

Employees International Union District 

1199P, Doc. FL104, at 5 (same); 

American Federation of Labor and 

Congress of Industrial Organizations, 

Doc. R329A, at 42–43 (same). 

3. Interaction of Health Insurance 

Portability and Accountability Act and 

Medical Certification Process 

As noted in the Request for 

Information, the most significant law 

passed since the FMLA with regard to 

employee medical information is the 

Health Insurance Portability and 

Accountability Act (‘‘HIPAA’’). HIPAA 

addresses in part the privacy of 

individually identifiable health 

information. 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. The HIPAA 

regulations do not impede the 

disclosure of 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. HIPAA regulations, however, 

clearly do come into play if the 

employee asks the health care provider 

to send the completed certification form 

or other medical information directly to 

the employer. In such situations, HIPAA 

will generally require the health care 

provider to first receive a valid 

authorization from the employee before 

sending the information to the 

employer. 

There is no requirement under the 

FMLA that employees sign a release 

allowing employers to access their 

medical information. In the preamble to 

the final regulations, the Department 

specifically rejected the idea of 

requiring employees to execute a 

medical release as part of the 

certification process as unnecessary. See 

60 FR 2180, 2222 (Jan. 6, 1995) (‘‘The 

Department has not adopted the 

suggestion that a waiver by the 

employee is necessary for FMLA 

purposes. The process provides for the 

health care provider to release the 

information to the patient (employee or 

family member). The employee then 

releases the information (form) to the 

employer. There should be no concern 


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regarding ethical or confidential 

considerations, as the health care 

provider’s release is to the patient.’’). 

Employers, however, always have the 

statutory right under the Act to obtain 

sufficient medical information to 

determine whether an employee’s leave 

qualifies for FMLA protection, 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 be 

entitled to FMLA leave. See 29 CFR 

825.307–825.308; Wage and Hour 

Opinion Letter FMLA–2004–2–A (May 

25, 2004). Some commenters believe 

that the HIPAA regulations restricting 

the flow of medical information from 

health care providers to third parties 

have created tension with the 

employer’s right to medical information 

under the FMLA and have caused 

difficulties for employees seeking to 

exercise their FMLA rights. See, e.g., 

Krukowski & Costello, S.C. (on behalf of 

Legislative Committee of the Human 

Resource Management Association of 

Southeastern Wisconsin), Doc. 10185A, 

at 3 (‘‘[W]hen an employer may attempt 

to ascertain the true nature of any given 

absence, the employee then uses HIPAA 

as a shield designed to prevent the 

employer from obtaining any further 

information in order to clear up any 

ambiguities (or discover potential 

abuses).’’); Methodist Hospital, Thomas 

Jefferson University Hospital, Doc. 

FL76, at 2 (‘‘With HIPAA regulations 

physicians are reluctant to share 

information with Employers who are 

trying to accommodate Employee 

medical conditions to minimize 

absence.’’); American Academy of 

Family Physicians, Doc. FL25, at 3 (‘‘We 

agree with comments that the Health 

Insurance Portability and 

Accountability Act (HIPAA) has created 

confusion about the disclosure of 

information on the FMLA form. As 

employers are not covered entities, 

disclosure directly to the employer is 

prohibited without an authorization by 

the patient.’’) 

Several commenters reported that 

they have experienced increased 

difficulties with obtaining medical 

certifications from health care providers 

as a result of HIPAA. See, e.g., AIG 

Employee Benefit Solutions’ Disability 

Claims Center, Doc. 10085A, at 2–3 

(‘‘More than one Provider has written 

‘HIPAA’ across the Form and returned 

it.’’); Briggs & Stratton Corporation, Doc. 

FL37, at 4 (‘‘[M]any physicians still 

insist that they are prohibited by HIPAA 

from responding to questions on the 

Certification.’’). As a result of these 

difficulties, several commenters—

including some medical providers—

suggested that employees be required to 

sign a release as part of the certification 

requirement allowing the employer to 

communicate directly with the 

employee’s health care provider. See, 

e.g., American Academy of Family 

Physicians, Doc. FL25, at 3 (‘‘The 

specific information required by the 

FMLA certification form and lack of an 

authorization on the form releasing the 

information may lead to inadvertent 

HIPAA violations. We would 

recommend the addition of an 

authorization to release medical 

information to the certification form 

which would allow the patient to 

indicate their authorization to release 

information to a family member or 

directly to the employer.’’); Ed 

Carpenter, Human Resource Manager, 

Tecumseh Power Company, Doc. R123, 

at 1 (certification process would be 

made easier if employee signed a release 

allowing the employer to contact 

employee’s health care provider); 

Williams Mullen, Doc. FL124, at 3 

(‘‘DOL should coordinate HIPAA and 

FMLA issues, including medical 

certifications with HIPAA waivers, to 

make the process of medical 

information consistent.’’). Other 

commenters, however, objected to 

requiring employees to provide medical 

releases in exchange for requesting 

FMLA leave. See United Steel, Paper 

and Forestry, Rubber, Manufacturing, 

Energy, Allied Industrial and Service 

Workers International Union, at 4 (‘‘The 

USW asks the DOL to clarify that 

employees are not required to provide a 

release of medical information to the 

employer as a condition of applying for 

or receiving FMLA leave.’’). 

Finally, some commenters suggested 

that the protections afforded to 

employee medical information by 

HIPAA have obviated the need for 

employers to get employee consent for 

clarification of FMLA certifications. See 

Ohio Public Employer Labor Relations 

Association, Doc. FL93, at 6 (‘‘With 

HIPAA laws protecting confidential 

medical information, the excessive 

restrictions found in 29 CFR 825.307 are 

unnecessary and should be removed.’’); 

Taft, Stettinius & Hollister LLP, Doc. 

FL107, at 5 (‘‘HIPAA and similar laws 

provide ample protection for personal 

health data and the employee’s health 

care provider can always refuse to 

disclose information if he or she 

considers a request for clarification to 

implicate privacy issues.’’); Hewitt 

Associates, Doc. 10135A, at 15 (‘‘[G]iven 

HIPAA concerns, it’s likely that the 

employee will still have a check over 

the process as the health care provider 

would require the employee’s 

permission before he or she would 

speak with the employer.’’); see also 

National Retail Federation, Doc. 

10186A, at 17 (‘‘The professional 

standards binding health care providers 

serve as a sufficient ‘‘check’’ on the 

scope of the inquiry.’’). 

4. Recertification and Second and Third 

Opinions 

The medical verification process does 

not end with the initial medical 

certification. Employers who question 

the validity of an employee’s medical 

certification have the right to require a 

second opinion from a health care 

provider of their choosing. See 29 CFR 

825.307. Where the second opinion 

conflicts with the initial certification, 

the regulations allow the employer to 

obtain a final and binding third opinion 

from a jointly-designated health care 

provider. See id. Additionally, 

employers have the right to require 

employees to provide subsequent 

recertification for conditions that persist 

over time. See 29 CFR 825.308. The 

Request for Information sought 

comments regarding several aspects of 

the recertification and second opinion 

processes. Comments were sought 

regarding the time frame for 

recertification and the requirement that 

requests for recertification be made only 

in connection with an absence. 

Comments were also sought on whether 

the second and third opinion process 

should be extended to apply to 

recertifications in addition to the initial 

certification. 

a. Timing of Recertifications 

Several commenters recommended 

that employers should be allowed to 

seek recertification every thirty days 

regardless of the minimum duration of 

the need for leave set forth in the 

certification. See, e.g., United Parcel 

Service, Doc. 10276A, at 11 (‘‘As 

currently drafted, [the] language permits 

employees to evade the 30-day 

recertification requirement by having 

their health care provider specify a 

longer period of time.’’); University of 

Minnesota, Doc. 4777A, at 1 (‘‘In all 

cases, employers should have the right 

to request recertification from an 

employee on FMLA leave every thirty 

days.’’); Carolyn Cooper, FMLA 

Coordinator, City of Los Angeles, Doc. 

4709, at 1 (‘‘A remedy to this 

manipulation or gaming of the medical 

certification restriction pertaining to 

intermittent/reduced work schedule 

leaves is to allow employers to request 

recertification every 30 days, regardless 


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if the duration indicated in the initial 

medical certification is greater than 30 

days.’’). The National Coalition to 

Protect Leave made a related point that 

recertifications should be permitted 

every thirty days irrespective of whether 

there was an absence during that period. 

See National Coalition to Protect Family 

Leave, Doc. 10172A, at 49 (‘‘Employers 

should always be allowed to obtain 

recertification every 30 days as long as 

the initial certification indicates the 

leave needed is ongoing; the right of an 

employer to request recertification in 

such circumstances should not be 

limited to whether an employee had an 

‘absence.’); see also Hewitt Associates, 

Doc. 10135A, at 17 (‘‘Simplify § 825.308 

by deleting the requirement that 

employers can only request 

recertification ‘in connection with an 

absence’ allowing employers to ask for 

a recertification every 30 days.’’). 

Many of the commenters seeking 

more frequent recertifications cited the 

desire to control unforeseen, 

intermittent absences due to chronic 

conditions. See Pierce Atwood, LLP (on 

behalf of Maine Pulp & Paper 

Association), Doc. 10191A, at 2–3 

(‘‘Given the fact that intermittent leave 

is widely abused, employers need more 

flexibility to request recertification for 

intermittent leave than for serious 

health conditions that render the 

employee unable to work for the full 12 

weeks.’’); Nancy Dering Martin, Deputy 

Secretary for Human Resources and 

Management, Commonwealth of 

Pennsylvania, Doc. FL95, at 4 (‘‘Also, 

because of the potential for abuse, we 

recommend Section 825.308 be further 

revised to allow employers to require a 

medical excuse indicating the time of 

the appointment or treatment when 

leave is used intermittently, the absence 

is unexpected, or the employer suspects 

abuse.’’); Milwaukee Transport Services, 

Doc. FL80, at 2 (‘‘One regulatory change 

that would assist employers such as 

MTS in curbing intermittent leave abuse 

would involve revising the current 

recertification regulation, 29 CFR [§ ] 

825.308, by allowing an employer to 

require medical documentation of the 

need for intermittent FMLA leave on 

any occasion on which such leave is 

taken.’’). Several of these commenters 

suggested that employers should be 

allowed to obtain medical verification of 

each intermittent absence even if that 

verification were more summary than a 

recertification. See Northrup Grumman 

Newport News Shipbuilding and Dry 

Dock Company, Doc. FL92, at 2 (‘‘A rule 

could be added to require employees to 

provide documentation from the 

healthcare provider each time they 

exercise intermittent leave, 

documenting specifically that the 

intermittent condition prevented 

attendance at work.’’); Spencer Fane 

Britt & Browne LLP, Doc. 10133C, at 32 

(‘‘The employee should not be 

permitted to be the only party who 

determines the medical necessity of an 

absence on any particular day. * * * If 

an employee is ill enough to miss work, 

the employee should be required to visit 

or at least consult by phone with his/her 

doctor.’’); Seyfarth Shaw LLP (on behalf 

of a not-for-profit health care 

organization), Doc. 10132A, at 4 (‘‘We 

suggest as an alternative an amendment 

to the regulations so that an employer 

can request documentation from the 

employee’s health care provider 

pursuant to a uniformly applied policy 

for similarly-situated employees for any 

unforeseen, intermittent absence of less 

than a work day due to a chronic serious 

health condition.’’). 

Employee commenters objected to 

more frequent recertifications, however, 

because of the additional burden placed 

on employees. See, e.g., International 

Association of Machinists and 

Aerospace Workers, Doc. 10269A, at 4 

(‘‘[O]ur members find that the 

requirement to recertify every thirty 

days is incredibly burdensome. * * * 

[I]t is very expensive for employees to 

get re-certifications. Some employees, 

particularly in rural areas, have to travel 

long distances to even see their doctors. 

It is ironic that often these employees 

actually have to miss more work time 

just to get the recertification.’’); An 

Employee Comment, Doc. 4738, at 1 

(‘‘For an employer to repeatedly request 

for recertifications every 30 days, for an 

chronic Asthmatic who has an 

unforeseeable mild flare-up that can be 

taken care of with prescription 

medication, seems unreasonable and 

repetitious.’’); Kennedy Reeve & Knoll, 

Doc. 4763A, at 17 (‘‘The frequency with 

which some employers are requiring 

notes and recertification is both 

logistically (due to the availability of 

doctor’s appointment times) and 

financially burdensome on the 

employee and physician.’’); An 

Employee Comment, Doc. 4582, at 1 

(‘‘[E]ven though my mother’s illness is 

terminal and my father’s condition is 

considered lifetime, I still am required 

to fill out forms and have a doctor sign 

them every 3 months. The physician’s 

office now charges me $20 for each form 

I have to have them sign. As you can 

imagine, this takes a lot of time and 

money.’’). 

Physicians also objected to allowing 

recertifications every 30 days for 

conditions that are medically stable: 

‘‘This is a burden to physicians who 

spend time completing the form to 

indicate that a chronic condition is still 

being managed. It would lessen this 

burden to allow recertification only for 

those conditions which are not 

categorized as chronic care or 

permanent disability.’’ American 

Academy of Family Physicians, Doc. 

FL25 at 3; see also Mark Blick DO, Rene 

Darveaux MD, Eric Reiner MD, Susan R. 

Manuel PA–C, Doc. FL292, at 1 (‘‘One 

employer requires us to complete the 

form every 60 days (ATT/SBC), one 

employer every 90 days and another 

every year. Chronic conditions 

extending a patient’s lifetime such as 

diabetes and hypertension are not going 

to change and there is no reason the 

form has to be updated multiple times 

throughout the year.’’). Another 

commenter suggested that employers are 

abusing the recertification process and 

using repeated requests for 

recertification to discourage employees 

from taking FMLA leave: 

[E]mployees bear the expense and burden 

of having to secure re-certifications and run 

the risk of denials if health care providers do 

not cooperate (or fail to do so in the relatively 

short time required by the employer), even 

though the serious and chronic nature of 

their medical condition is well documented. 

In fact, we believe that, in some work 

locations, these re-certification requests are 

thinly veiled efforts to discourage employees 

from taking intermittent FMLA leave and/or 

to retaliate against them for needing to do so. 

Communications Workers of America, 

Doc. R346A, at 12. 

b. Second and Third Opinion Process 

Several employers commented on the 

expense involved in the second and 

third opinion process. See, e.g., Honda, 

Doc. 10255A, at 11 (‘‘Based upon 

Honda’s experience, second and third 

opinions average over $700 per second 

or third opinion, and cost the employees 

their time.’’); Spencer Fane Britt & 

Browne LLP, Doc. 10133C, at 25 

(‘‘Second and third opinions have 

proven expensive and difficult to 

obtain.’’); Yellow Book USA, Doc. 

10021A, at 2 (asserting that second 

opinions are so expensive they are not 

used); Zimbrick, Inc., Doc. FL125, at 12 

(‘‘We have not requested a second 

opinion. The cost, time and negative 

impact on employee morale is 

prohibitive.’’). Other commenters noted 

practical concerns regarding finding 

physicians to perform second opinions. 

See, e.g., United States Postal Service, 

Doc. 10184A, at 19 (‘‘We are 

experiencing increasing difficulty 

finding physicians who will perform a 

second opinion medical exam. Although 

we do not keep numbers on refusal 

rates, our national FMLA coordinators 


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regularly voice concerns about this 

problem.’’); Foley & Lardner LLP, Doc. 

10129A, at 5 (‘‘Our experience shows 

that second opinions are rarely used due 

to delay inherent in locating a health 

care provider and scheduling an 

examination and due to the expense 

associated with obtaining these 

opinions.’’); Coolidge Wall Co., Doc. 

5168, at 1 (‘‘Even in larger cities it can 

be difficult to find doctors in a specialty 

who are willing to do FMLA second 

opinion examinations.’’); FNG Human 

Resources, Doc. FL13, at 5 (‘‘Requesting 

a second opinion is neither 

economically feasible nor beneficial in 

our area. We do not find healthcare 

providers willing to state that another 

provider is incorrect in his/her 

diagnosis.’’). 

Some commenters suggested that 

employers should be allowed to use 

doctors with whom they have 

relationships for second opinions 

because these health care providers are 

more familiar with the work 

environment and job requirements. See, 

e.g., Air Conference, Doc. 10160A, at 13 

(‘‘[O]ur member carriers have developed 

relationships with health care providers 

who understand our industry and 

operating environment and who are 

very familiar with the essential 

functions of airline jobs.’’). 

Two commenters expressed 

frustration that even where the second 

and third opinion process resulted in a 

determination that the employee was 

not entitled to FMLA leave, employees 

have attempted to subvert the process 

by submitting a new certification for the 

same condition thus initiating the 

review process anew. See United States 

Postal Service, Doc. 10184A, at 19 (‘‘[A] 

number of employees * * * 

subsequently submit a new medical 

certification from their original health 

care provider which counters the 

information in that second/third 

opinion. The employees then argue that 

the employer must go through the 

second opinion process again.’’); 

Exelon, Doc. 10146, at 6 (‘‘Even if both 

the second and third opinion providers 

disagree with the employee’s own 

provider, after the process has been 

concluded, the regulations do not 

preclude the employee from submitting 

a new certification to support a new 

absence, and subsequent absences, from 

work for the same medical condition for 

which a second and third opinion were 

obtained.’’). 

c. Expanding Second Opinions to 

Recertification 

Despite employer frustrations with 

the costs and utility of the second and 

third opinion process, however, some 

employers sought to expand the use of 

the process to recertifications. See, e.g., 

National Coalition to Protect Family 

Leave, Doc. 10172A, at 49 (‘‘Permitting 

second and third opinions [on 

recertifications] will provide substantial 

benefits to both employers and 

employees. Employers will not have to 

incur the unnecessary expense of 

obtaining second and third opinions 

based on a doubtful initial certification 

unless a pattern of abuse in fact 

develops without losing the opportunity 

to challenge the certification at a later 

date. Employees will also benefit, since 

they will not have to go for second and 

third opinions if they do not abuse 

FMLA leave even if their original 

medical certification creates doubt as to 

the validity of the need for leave.’’); 

United States Postal Service, Doc. 

10184A, at 17 (‘‘[A] second opinion 

should be allowed during the lifetime of 

an employee’s condition, so long as 

there is reason to doubt the validity of 

the information in the certification.’’); 

Air Conference, Doc. 10160A, at 13 

(‘‘Second and third opinions should 

also be available to employers on a 

medical recertification.’’). 

Commenters noted that the statute is 

silent as to the availability of second 

opinions on recertification and argued 

that the Department should not prohibit 

their use by regulation. See City of New 

York, Doc. 10103A, at 9 (‘‘Under 29 CFR 

825.308(e), employers are specifically 

barred from seeking a second or third 

opinion on a recertification. The FMLA, 

however, does not bar an employer from 

seeking additional opinions for a 

subsequent recertification.’’); National 

Coalition to Protect Family Leave, Doc. 

10172A, at 49 (‘‘Subsection 29 CFR 

825.308(e) prohibits employers from 

obtaining second and third opinions in 

connection with recertifications despite 

the fact that no statutory prohibition 

exists with regard to such requests.’’); 

Association of American Railroads, Doc. 

10193A, at 4 (noting that the prohibition 

on second and third opinions on 

recertification is not based on the Act). 

Other commenters, however, viewed the 

statutory silence differently, arguing 

that the statute only provides for second 

opinions on the initial certification and 

therefore they should not be permitted 

on recertification. See American 

Federation of Labor and Congress of 

Industrial Organizations, Doc. R329A, at 

44; National Partnership for Women & 

Families, Doc. 10204A, at 22–23 (‘‘The 

regulations do not allow employers to 

request second opinions for medical 

recertifications because the statute itself 

only provides for second opinions in the 

context of initial certifications.’’). Honda 

urged that the Department’s 2005 

opinion letter concerning reinitiating 

the medical certification process on an 

annual basis, and with it the availability 

of the second opinion process, be 

incorporated into the regulations. See 

Honda, Doc. 10255A, at 15; see also 

American Federation of Labor and 

Congress of Industrial Organizations, 

Doc. R329A, at 44 (‘‘[T]he regulations 

currently permit employers to reinitiate 

the medical certification process twelve 

months after leave commences, 

including requests for second and third 

opinions, regardless of past certification 

for the same health condition.’’); Wage 

and Hour Opinion Letter FMLA–2005–

2–A (Sept. 14, 2005). 

The United States Postal Service 

argued that allowing second opinions 

on recertifications would ultimately 

inure to the benefit of employees. See 

Doc. 10184A, at 19 (‘‘When an employer 

knows that it has the option of a second 

opinion if later needed, it is more likely 

to allow the protection at the outset 

even in instances where it may have 

some concern about the certification. 

The employee will be more content, as 

the leave request is quickly approved 

and he/she is spared a second medical 

exam.’’). The National Partnership for 

Women & Families disagreed, however, 

stating that the extension of the second 

and third opinion process to 

recertifications would burden 

employees. See Doc. 10204A, at 22–23 

(‘‘[A]llowing employers to request 

second opinions on recertifications 

would unfairly burden employees for 

taking leave to which they are 

entitled.’’). 

d. Adequacy and Use of Current 

Medical Verification Process 

Finally, some commenters suggested 

that, if properly used, the recertification 

and second and third opinion processes 

set forth in the current regulations 

provided employers with ample tools to 

control FMLA leave usage. 

At present, we believe that the regulations 

provide a manageable balancing of the 

employer’s need for accurate information 

demonstrating that the leave is covered by 

the Act and the employee’s important 

privacy interest. The regulations also 

establish a clear framework within which to 

evaluate leave requests when good faith 

questions arise—the second and third 

opinion process. Because of the concerns that 

this existing process is not being followed by 

many employers, we urge DOL to take steps 

to evaluate whether that process is being 

utilized appropriately. 

Coalition of Labor Union Women, 

Doc. R352A, at 6; see also 9to5, National 

Association of Working Women, Doc. 

10210A, at 4 (‘‘Robust employer 


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safeguards already exist in the current 

regulations. Employers are allowed to 

ask for second and third opinions from 

alternate doctors for an FMLA request. 

Employers have always had the ability 

to handle suspicious patterns of time 

off, just like any other personnel 

problem.’’); Kennedy Reeve & Knoll, 

Doc. 4763A, at 14–15 (‘‘Instead of 

utilizing the certification process and 

the second and third opinion process 

within the regulations, many employers 

are now choosing to forgo some or all 

of those processes, and instead litigating 

these issues at a high price to everyone, 

including the courts. In order to avoid 

costly litigation and in order to provide 

more stability in the administration of 

leaves of absences, the regulations 

should require the use of a consistent 

form and also require the utilization of 

the regulatory enforcement 

procedures[.]’’). 

5. Medical Certification of the 

Employee’s Ability To Return To Work 

(‘‘Fitness for Duty Certifications’’) 

Section 825.310 of the regulations 

allows employers to require medical 

certification of the employee’s fitness to 

return to work under certain 

circumstances. Section 825.310(g), 

however, bars employers from seeking a 

fitness for duty certification from 

employees returning to work after taking 

intermittent leave. See 29 CFR 

825.310(g). The Request for Information 

sought comments on the benefits and 

burdens of removing this restriction and 

allowing fitness for duty certifications 

for employees returning from 

intermittent leave. 

Many commenters questioned the 

rationale for the different treatment the 

regulations accorded to different types 

of leave and argued that safety concerns 

support requiring fitness for duty 

certifications for intermittent leave. 

Exempting chronic conditions from return 

to work clearance seems to make little sense 

because those conditions are just as likely as 

any other to compromise the health or safety 

of the workforce. Indeed, some chronic 

conditions are even more likely to give rise 

to a justifiable need for return to work 

clearance than the other serious health 

conditions under the FMLA. For example, an 

employer may have little concern about the 

clerical assistant returning to work after 

giving birth, but far more (and legitimate) 

concern about allowing a utility worker to 

return after a series of epileptic seizures on 

the job. 

United States Postal Service, Doc. 

10184A, at 20; see also Honda, Doc. 

10255A, at 14 (‘‘Not permitting fitnessfor-duty medical forms for FMLA 

Intermittent Leaves puts employers and 

employees at risk. Such a prohibition 

creates an exception to most employers’

policies or practices when an employee 

has been incapacitated for any medical 

reason for more than a brief period.’’); 

MGM Mirage, Doc. 10130A, at 10 

(‘‘Quite simply, an employee places his/ 

her physical condition at issue by 

requesting FMLA leave. This is true 

regardless of whether the employee was 

absent as result of continuous or 

intermittent leave.’’). 

Some employers noted that the 

particular safety concerns inherent in 

their workplaces necessitated that they 

obtain clear information regarding an 

employee’s ability to safely return from 

leave. See Union Pacific Railroad, Doc. 

10148A, at 6 (noting that clear 

information regarding their employees 

ability to work is critical as ‘‘those very 

employees are entrusted with jobs that 

affect the safety and security of the 

general public’’); Honda, Doc. 10255A, 

at 14 (‘‘In manufacturing, many of the 

jobs include safety-sensitive duties. 

Therefore, the current regulation 

prohibiting a fitness-for-duty form for 

intermittent leaves puts the employee 

and his/her co-workers at risk and 

requires the employer to assume a legal 

risk for liability, if there is an accident 

caused by the reinstated employee.’’); 

City of New York, Doc. 10103A, at 7 

(‘‘Fitness for Duty Certifications for 

employees in safety-sensitive positions 

who are intermittently absent should be 

an option for employers. For example, if 

a sanitation worker responsible for 

driving a two-ton truck on public 

roadways takes intermittent leave to 

treat high blood pressure, a fitness for 

duty certification should be required 

before the employee is restored to the 

position which carries an extreme 

responsibility to the public.’’). These 

employers suggested that the FMLA 

return to work process undercuts 

legitimate employer safety programs. 

For example, the Maine Pulp & Paper 

Association submitted the following 

statement: 

Employees in the paper industry routinely 

work with hazardous materials in close 

proximity to heavy machinery. Forcing 

employers to accept the employee’s medical 

provider’s simple statement that the 

employee ‘‘is able to resume work,’’ or worse, 

in the case of an intermittent leave-taker, 

accept the employee’s word alone with no 

medical verification whatsoever jeopardizes 

the safety of co-workers and increases 

exposure to expensive workers’

compensation claims. MPPA’s members have 

strong safety programs which should not be 

undercut by administrative requirements of 

the FMLA. 

Pierce Atwood, LLP (on behalf of Maine 

Pulp & Paper Association), Doc. 

10191A, at 4. 

Several employers suggested the 

Department should delete or revise this 

section of the regulations so that 

employers would have the same right to 

seek fitness for duty certifications from 

employees returning to work from 

intermittent leave. See, e.g., Willcox & 

Savage, Doc. 10088A, at 6; Foley & 

Lardner LLP, Doc. 10129A, at 5; 

National Coalition to Protect Family 

Leave, Doc. 10172A, at 50. The National 

Partnership for Women & Families, 

however, argued that requiring 

employees returning from intermittent 

leave to provide fitness for duty 

certifications—which are to the 

employee’s expense—would 

significantly undermine the statutory 

purpose behind allowing employees to 

take intermittent leave. See Doc. 

10204A, at 23 (‘‘Any benefit to the 

employer of obtaining fitness for duty 

statements from intermittent leavetakers is far outstripped by the 

unwarranted burden that such a change 

in the regulations would impose on 

employees. * * * The intermittent 

leave option helps to take some of the 

financial strain off employees by 

enabling them to continue to earn a 

paycheck while addressing serious 

health or family needs, and allows 

employees to preserve as much of the 

twelve weeks of leave as possible.’’) 

(footnotes omitted). The AFL–CIO also 

noted that ‘‘[r]equiring employees who 

take intermittent leave to present fitness 

for duty certifications for potentially 

every absence is burdensome and 

unnecessary.’’ Doc. R329A, at 44. See 

also National Business Group on Health, 

Doc. 10268A, at 4 (‘‘It would be an 

administrative headache to require a 

fitness for duty statement from an 

employee who is absent intermittently. 

The added paperwork to cover this 

would be overly burdensome.’’); 

Kennedy Reeve & Knoll, Doc. 4763A, at 

18 (‘‘[T]he logistical impossibility and 

financial burdens of allowing employers 

to require fitness-for-duty statements for 

each and every day of absence make 

such a policy not feasible.’’). In an 

attempt to address the costs concern, 

one commenter suggested that 

employers bear the cost for fitness for 

duty certifications when the employee 

is returning from intermittent leave. See 

United Parcel Service, Doc. 10276A, at 

6. 

Finally, some commenters 

commented that the return to work 

process under the FMLA conflicted with 

the return to work process under the 

ADA, with the latter providing a better 

model because it allows both more 

substantive information and physical 

examinations. See infra Chapter VII. 


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35598 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 

6. WH–380 Form 

The Department provides an optional 

model certification form titled ‘‘WH–

380’’ to assist employers who require 

employees to provide medical 

certification of their need for FMLA 

leave. The form can be used for initial 

certification or recertification, as well as 

for second and third opinions. While 

employers may use a form other than 

the WH–380, they may not require 

information beyond what is required by 

the sample form. 29 CFR § 825.306(b). 

The Request for Information sought 

comments on how this form is working 

and what improvements could be made 

to it to facilitate the certification 

process. 

Several commenters expressed 

frustration with the current form, 

finding it overly long and complicated. 

See, e.g., American Academy of Family 

Physicians, Doc. FL25, at 2 (‘‘The form 

WH–380 is overly complicated and 

confusing in its format.’’); Spencer Fane 

Britt & Browne LLP, Doc. 10133C, at 27 

( ‘‘DOL’s prototype medical certification 

form * * * is confusing to employers, 

employees, and health care providers.’’); 

United Parcel Service, 10276A, at 10 

(‘‘The current WH–380 form is poorly 

drafted and confusing.’’); Courier 

Corporation, Doc. 10018A, at 3 (‘‘We 

feel the Certification of Health Care 

Provider (Optional Form WH–380) is far 

too vague.’’); Association of Corporate 

Counsel, Doc. FL31, at 10 (‘‘The current 

form is confusing and often results in 

incomplete or vague responses by health 

care providers that are insufficient to 

assess the employee’s eligibility for 

leave or the timing of the leave.’’). 

Several commenters suggested that 

the form could be simplified if it was 

broken into multiple forms, with 

separate forms either for intermittent 

and block leave, or for leave for the 

employee and leave for the employee’s 

family member. See, e.g., Yellow Book 

USA, Doc. 10021A, at 3 (suggesting 

separate forms for block and 

intermittent leave); National Counsel of 

Chain Restaurants, Doc. 10157A, at 16 

(suggesting separate forms for employee 

and family members); Indiana 

University, School of Medicine, 

Department of Orthopedic Surgery, Doc. 

FL70, at 1 (same); Ohio Department of 

Administrative Services, Doc. 10205A, 

at 6 (same). Spencer Fane recommended 

that the Department actually develop 

four different versions of the form for: 

‘‘(a) Continuous leave for employee’s 

own serious health condition; (b) 

continuous leave for serious health 

condition of a family member; (c) 

reduced schedule/intermittent leave for 

employee’s own serious health 

condition; and (d) reduced schedule/ 

intermittent leave for serious health 

condition of a family member.’’ Doc. 

10133C, at 32. 

Commenters also suggested ways to 

make the current form more useful to 

employers and easier for health care 

providers to understand and to 

complete. See, e.g., Courier Corp., Doc. 

10018A, at 4 (Suggesting that the ‘‘form 

could be modified to be in more of a 

checkbox format, that might facilitate 

the physician’s office in actually 

completing it more fully and providing 

better information for the employer to 

evaluate the need for leave.’’); United 

States Postal Service, Doc. 10184A, at 12 

(advocating elimination of serious 

health condition checklist in favor of 

description of medical facts); National 

Coalition to Protect Family Leave, Doc. 

10172A, at 47 (‘‘DOL can make the form 

more user-friendly by streamlining the 

information requested instead of asking 

the health care providers to respond to 

a page and a half of specific questions.’’) 

(footnote omitted). A physicians group 

suggested that use of a standard form, as 

opposed to individual employer 

variations, would reduce the burden on 

health care providers. See American 

Academy of Family Physicians, Doc. 

FL25, at 2; see also Kennedy Reeve & 

Knoll, Doc. 4763A, at 14 (‘‘The model 

certification form must be simplified, 

and then it must be the required form 

for employers to use.’’). 

Several commenters suggested that 

the Department ‘‘allow an employer the 

option of identifying key job skills and 

tasks, similar to the [ADA], to allow the 

doctor to make a more informed 

decision about the necessity of leave 

with respect to the specified essential 

job functions[.]’’ U.S. Chamber of 

Commerce, Doc. 10142A, at 8; see also 

United States Postal Service, Doc. 

10184A, at 14 (form should include ‘‘a 

statement that the provider has been 

informed of the employee’s essential job 

functions’’). Another commenter, 

however, noted that the FMLA 

regulations already permit employers to 

‘‘include a job description with the 

medical certification form given to the 

treating physician’’ but that few 

employers utilize this process. Kennedy 

Reeve & Knoll, Doc. 4763A, at 5. 

Commenters also suggested that the 

WH–380 should include a diagnosis, 

something that was included in the form 

published with the interim FMLA 

regulations but was removed from the 

form when the regulations were 

finalized. See Preamble to Final FMLA 

Regulations, 60 FR 2180, 2222 (Jan. 6, 

1995) (‘‘The regulation and form no 

longer provide for diagnosis.’’); see also 

South Central Human Resource 

Management Association, Doc. 10136A, 

at 11 (‘‘an employer should be permitted 

to obtain diagnosis and prognosis’’); 

Detroit Medical Center, Doc. 10152A, at 

2 (‘‘It is critical that the regulations and 

WH–380 form be changed to require 

actual diagnoses to determine whether 

an employee’s absences correlate with 

the medical certification.’’). One such 

commenter stated that ‘‘the FMLA’s 

current restriction on obtaining a 

diagnosis creates an unnecessary and 

awkward limitation on the employee’s 

health care provider in completing the 

medical certification form and the 

employer’s health care provider in 

seeking clarification of information 

contained in that form. Generally, 

meaningful communications between 

the health care providers cannot take 

place without some discussion about 

the actual diagnosis, particularly if 

second and third opinions are 

involved.’’ MedStar Health, Inc., Doc. 

10144A, at 17. 

Finally, some commenters noted that 

the WH–380 does not include all of the 

information that an employer is entitled 

to under the Act. Importantly, multiple 

commenters noted that the current form 

does not require the health care 

provider to certify the medical necessity 

for intermittent leave, which is a 

statutory requirement for the taking of 

such leave. See 29 U.S.C. § 2612 (b); see 

also National Coalition to Protect 

Family Leave, Doc. 10172A, at 47 (‘‘In 

the case of intermittent leave, the 

medical necessity for the intermittent or 

reduced schedule also should be 

specified in accordance with 29 CFR 

§ 825.117 (not currently asked on the 

model form).’’); Society for Human 

Resource Management, Doc. 10154A, at 

18 (same); American Electric Power, 

Doc. Fl28, at 5 (‘‘Unfortunately, the 

statutory requirement that ‘medical 

necessity’ be demonstrated by 

employees seeking intermittent leave 

has been effectively eliminated by the 

Department’s regulations.’’). Another 

commenter noted that the current form 

also does not solicit the information 

necessary to allow employers to 

determine whether an employee is 

entitled to FMLA leave to care for a 

child who is 18 years old or older. 

Honda, Doc. 10255A, at 13 (suggesting 

that in order for employers to determine 

whether an adult child is covered under 

the FMLA the form should be amended 

to include: ‘‘[1] Whether the adult child 

has a physical or mental disability; [2] 

Whether the physical or mental 

disability has caused the child to be 

incapable of self-care; and [3] A 

checklist of ‘activities of daily living’

and ‘instrumental activities of daily 


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15Several commentators have called the 

intersection of the ADA, the FMLA, and workers’

compensation laws the ‘‘Bermuda triangle of 

employment laws’’ because, while all three address 

employers’ obligations towards employees with 

certain medical conditions, the responsibilities 

imposed by each are overlapping but distinctively 

different. Lawrence P. Postol, ‘‘Sailing the 

Employment Law Bermuda Triangle,’’ The Labor 

Lawyer, Vol. 18, No. 2 (Fall 2002); Peter A. Susser, 

Family and Medical Leave Handbook, Vol. 6, No. 

4, p. 7 (July 1998). 

living’ that the adult child cannot 

perform.’’). 

VII. Interplay Between the Family 

Medical Leave Act and the Americans 

With Disabilities Act 

The Department’s Request for 

Information noted that several 

organizations had reported the FMLA’s 

‘‘interaction with other laws,’’ including 

Title I of the Americans with 

Disabilities Act of 1990, 42 U.S.C. 

12101–12117, 12201–12213 (1994) 

(‘‘ADA’’), was a ‘‘potential source of 

confusion.’’15 In seeking comments on 

section 825.307 of the FMLA 

implementing regulations, which 

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 and 

only with the employee’s permission, 

the Department specifically asked how 

this provision ‘‘[should] be reconciled 

with the [ADA], which governs 

employee medical inquiries and 

contains no such limitation on employer 

contact?’’ Although not directly 

mentioning the ADA, the Department 

also asked for information relating to 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.’’

The ADA, which is enforced by the 

United States Equal Employment 

Opportunity Commission (‘‘EEOC’’), the 

Department’s Office of Federal Contract 

Compliance Programs, and the 

Department of Justice, prohibits private 

employers, state and local governments, 

employment agencies, and labor unions 

from discriminating in employment 

against qualified individuals with 

disabilities. See 42 U.S.C. 12101–12117, 

12201–12213. The statute includes an 

affirmative obligation to provide 

reasonable accommodation to the 

known disability of a qualified 

applicant or employee, unless doing so 

would pose an ‘‘undue hardship.’’ See 

42 U.S.C. 12112 (b)(5)(A). Under the 

ADA, an employee who needs medical 

leave related to his or her disability is 

entitled to such leave if there is no other 

effective accommodation and the leave 

will not cause an ‘‘undue hardship’’ on 

the employer’s business operations. See 

EEOC, Enforcement Guidance: 

Reasonable Accommodation and Undue 

Hardship under the Americans with 

Disabilities Act (hereafter, ‘‘EEOC 

Reasonable Accommodation 

Guidance’’), at Question 21. The FMLA, 

enforced by the Department’s Wage and 

Hour Division, entitles ‘‘eligible’’

employees of covered employers up to 

12 weeks of unpaid, job-protected leave 

each year–with continuation of group 

health insurance coverage under the 

same conditions as prior to leave–for 

specified family and medical reasons, 

including the employee’s own serious 

health condition. See 29 U.S.C. 2612, 

2614(c). The FMLA does not include a 

provision for ‘‘reasonable 

accommodation,’’ nor does it limit the 

availability of leave to situations where 

the employee’s absence would not cause 

an ‘‘undue hardship’’ for the employer. 

Nonetheless, one of the stated purposes 

of the FMLA is to allow an employee to 

take reasonable leave for medical 

reasons ‘‘in a manner that 

accommodates the legitimate interests of 

employers.’’ 29 U.S.C. 2601(b). 

While both statutes provide 

employees with job-protected medical 

leave, as the FMLA’s legislative history 

makes clear, ‘‘the leave provisions of the 

[FMLA] are wholly distinct from the 

reasonable accommodation obligations 

of employers covered under the [ADA].’’

S. Rep. No. 3, 103d Cong., 1st Sess. 38 

(1993). Indeed, the two Acts have 

distinctively different purposes: the 

ADA is intended to ensure that qualified 

individuals with disabilities are 

provided with equal opportunity to 

work, while the FMLA’s purpose is to 

provide reasonable leave from work for 

eligible employees. Compare 42 U.S.C. 

12101 and 29 CFR 1630.1 (Title I of the 

ADA requires equal employment 

opportunity for qualified individuals 

with disabilities) with 29 U.S.C. 2601(b) 

(one of the purposes of the FMLA is ‘‘to 

entitle employees to take reasonable 

leave for medical reasons, for the birth 

or adoption of a child, and for the care 

of a child, spouse, or parent who has a 

serious health condition’’). Recognizing 

this fact, section 825.702(a) of the FMLA 

implementing regulations provides that 

‘‘[a]n employer must therefore provide 

leave under whichever statutory 

provision provides the greater rights to 

employees.’’ See also EEOC, Fact Sheet: 

The Family and Medical Leave Act, the 

Americans with Disabilities Act, and 

Title VII of the Civil Rights Act of 1964 

(hereafter, ‘‘EEOC FMLA and ADA Fact 

Sheet’’), at Question 17. 

Moreover, an FMLA ‘‘serious health 

condition’’ is not necessarily an ADA 

‘‘disability.’’ An ADA disability is an 

impairment that substantially limits one 

or more major life activities, a record of 

such an impairment, or being regarded 

as having such an impairment. See 42 

U.S.C. 12102(2). While some conditions 

that qualify as serious health conditions 

under the FMLA may be ADA 

disabilities (e.g., most cancers and 

serious strokes), other qualifying serious 

health conditions under the FMLA may 

not be ADA disabilities. For example, 

periods of incapacity due to a routine 

broken leg or hernia could qualify as an 

FMLA serious health condition, but not 

be a qualifying disability under the ADA 

because the impairment is not 

substantially limiting. Similarly, 

incapacity due to pregnancy (e.g., severe 

morning sickness) qualifies as a serious 

health condition under the FMLA, but 

may not be a disability under the ADA 

because the condition is not long-term 

or permanent. See EEOC FMLA and 

ADA Fact Sheet, at Question 9. 

Despite the different purposes and 

scope of the two statutes, the FMLA and 

its implementing regulations borrow 

several important concepts from the 

ADA. For example, the Department 

relied on ADA concepts when defining 

one of the qualifying reasons for 

medical leave under the FMLA—

because of an employee’s own serious 

health condition. The statutory 

provision governing this issue provides 

that leave is available ‘‘because of a 

serious health condition that makes the 

employee unable to perform the 

functions of the position of such 

employee.’’ 29 U.S.C. 2612(a)(1)(D). The 

implementing regulations provide that 

leave entitlement accrues under this 

provision ‘‘where a health care provider 

finds that the employee is unable to 

work at all or is unable to perform any 

one of the essential functions of the 

employee’s position,’’ as provided for 

under the ADA and the EEOC’s 

regulations. 29 CFR 825.115. Under the 

ADA, a qualified individual with a 

disability is defined as an individual 

who, with or without reasonable 

accommodation, can perform all of the 

‘‘essential functions’’ of the position in 

question. See 42 U.S.C. 12111(8). The 

ADA implementing regulations define 

essential functions as the ‘‘fundamental 

job duties’’ of the employment position. 

29 CFR 1630.2(n). 

The intersection of the ADA and the 

FMLA, and its implications for 

employees and employers, was the 

subject of much discussion by 

respondents to the Department’s RFI. 


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35600 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 

16EEOC Enforcement Guidance expressly 

provides that the ADA’s restrictions on inquiries 

and examinations apply to all employees, not just 

those with disabilities, such that ‘‘[a]ny employee 

* * * has a right to challenge a disability-related 

inquiry or medical examination that is not jobrelated and consistent with business necessity.’’

EEOC, Enforcement Guidance: Disability-Related 

Inquiries and Medical Examinations of Employees 

under the Americans with Disabilities Act, at 

General Principles Section. 

The comments focused on five broad 

areas of interplay between the two 

statutes, discussed in greater detail 

below: (1) The interaction between the 

FMLA employee notice provisions and 

the ADA prohibitions on medical 

inquiries; (2) obtaining medical 

information under the FMLA and the 

ADA; (3) confirming that an employee is 

fit to return to work after medical leave 

under the FMLA and the ADA; (4) 

offering light duty, modified work or 

transfers/reassignments under the 

FMLA and the ADA; and (5) permitting 

‘‘reasonable leave for medical reasons’’

under the FMLA and the ADA. 

A. The Interaction of the FMLA 

Employee Notice Provisions and the 

ADA Medical Inquiry Prohibitions 

Under section 825.302 of the FMLA 

implementing regulations, an employee 

must provide notice ‘‘sufficient to make 

the employer aware that the employee 

needs FMLA-qualifying leave, and the 

anticipated timing and duration of the 

leave.’’ The request may be verbal and 

the employee need not specifically 

mention the FMLA. See 29 CFR 

825.302(c). The regulations permit an 

employer to ‘‘inquire further’’ about an 

employee’s medical condition where 

insufficient information is initially 

provided. Id. The ADA, however, 

strictly proscribes the circumstances 

under which employers may make 

medical inquiries of employees, 

including those without ADA 

disabilities, providing that: 

A covered entity shall not require a 

medical examination and shall not make 

inquiries of an employee as to whether such 

employee is an individual with a disability 

or as to the nature and severity of the 

disability, unless such examination or 

inquiry is shown to be job-related and 

consistent with business necessity. 

42 U.S.C. 12112(d)(4)(A); see also 29 

CFR 1630.14(c).16 The ADA also 

prohibits discrimination in employment 

against individuals who are ‘‘regarded 

as’’ having an impairment by their 

employer. 42 U.S.C. 12102(2)(c) and 

12112(a). 

The Department received comments 

from employers and their 

representatives suggesting that 

employees need to be further educated 

about their obligations under the FMLA 

to provide appropriate information 

about why leave is needed so that 

employers can fulfill their obligations 

under the Act if the leave is potentially 

FMLA-covered without violating the 

ADA’s restrictions on medical inquiries 

or running the risk that they will be 

deemed to have ‘‘regarded’’ someone as 

disabled. More than one commenter 

noted that an employee’s failure to 

provide adequate FMLA notice can 

place employers in an unreasonable 

situation. For example, the National 

Coalition to Protect Family Leave stated 

that employers often have been required 

to ‘‘‘read between the lines’ by grasping 

unspoken behavioral clues that an 

employee may need [FMLA] leave,’’

which places ‘‘employers—and their 

front-line managers—in the impossible 

position of having to navigate between 

compliance with the FMLA * * * and 

compliance with the [ADA] which 

restricts medical inquiries of employees 

and prohibits employers from 

‘regarding’ individuals as disabled.’’

Doc. 10172A, at 31–32. A law firm 

representing employers echoed similar 

concerns. Schwartz Hannum PC, Doc. 

10243A, at 7 (cases reasoning that 

‘‘unusual behavior’’ may itself 

constitute notice to employer of need for 

FMLA leave ‘‘impose an unreasonable 

expectation upon managers and human 

resources personnel * * * such 

employer representatives must be able 

to intuit when an employee’s body 

language or behavior suggests that an 

FMLA leave may be appropriate.’’). 

Still another commenter noted that 

‘‘[e]mployers are wary of asking too 

many questions for fear of violating 

complicated limitations of the ADA.’’

Employers Association of New Jersey, 

Doc. 10119A, at 7. This commenter 

stated that ‘‘employers err on the side of 

caution and grant many questionable 

FMLA requests to ensure the employee’s 

rights are not violated.’’ Id. at 8; see also 

National Public Employer Labor 

Relations Association, Doc. R358A, at 

10 (suggestion in section 825.302 that 

employers may ‘‘inquire further’’ about 

an employee’s medical condition when 

insufficient information is provided 

‘‘flies in the face of what human 

resources managers have trained 

supervisors not to do under other 

federal laws,’’ such as the ADA). 

B. Obtaining Medical Information Under 

the FMLA and the ADA 

While an employer’s obligation to 

provide medical leave under both the 

FMLA and the ADA are triggered by 

similar employee notice provisions, the 

approach an employer must follow to 

obtain appropriate medical information 

to support the need for leave varies 

depending on whether the employee’s 

request is covered by the FMLA or the 

ADA. The statutory provisions of the 

ADA outline the factors to be 

considered when determining whether a 

reasonable accommodation must be 

granted (42 U.S.C. 12111(10)) and the 

types of medical inquiries and 

examinations that may be made (42 

U.S.C. 12112(d)), but do not specify a 

particular process for considering an 

employee’s request for reasonable 

accommodation. The EEOC’s 

implementing regulations and 

interpretative guidance suggest that an 

employee and employer engage in an 

‘‘interactive process’’ designed to 

confirm that the employee has an ADAcovered disability and to identify an 

effective accommodation for the 

employee’s specific limitations. See 

generally 29 CFR Part 1630 and 

Appendix to Part 1630—Interpretive 

Guidance on Title I of the Americans 

with Disabilities Act (‘‘This process of 

identifying whether, and to what extent, 

a reasonable accommodation is required 

should be flexible and involve both the 

employer and the individual with a 

disability.’’). As part of this process, the 

employer may request reasonable 

documentation about the nature, 

severity, and duration of the employee’s 

impairment, and the extent to which the 

impairment limits the employee’s 

ability to perform daily activities when 

the disability or the need for 

accommodation is not known or 

obvious. See EEOC Reasonable 

Accommodation Guidance, at Question 

6; EEOC, Enforcement Guidance: 

Disability-Related Inquiries and Medical 

Examinations of Employees under the 

Americans with Disabilities Act 

(hereafter, ‘‘EEOC Disability-Related 

Inquiries Guidance’’), at Question 7. If 

the initial information provided is 

insufficient, the EEOC encourages the 

employer to ‘‘consider consulting with 

the employee’s doctor (with the 

employee’s consent).’’ EEOC DisabilityRelated Inquiries Guidance, at Question 

11. 

The FMLA, after appropriate 

notifications, allows the employer to 

require that the employee submit a 

certification from his/her heaLth care 

provider to support the need for FMLA 

leave. If the employer questions the 

validity of the employee’s certification, 

the employer may require second and/ 

or third medical opinions to resolve the 

situation. See 29 U.S.C. 2613. The 

FMLA medical certification process 

prohibits an employer from contacting 

an employee’s health care provider 

directly and restricts the scope and 

timing of information requests. See 29 


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CFR 825.303–825.311; (See also Chapter 

V for a discussion of employee 

notification rights and responsibilities 

and Chapter VI for a full discussion of 

the FMLA medical certification and 

verification process.). 

Commenters routinely noted these 

differences between the ADA and the 

FMLA, and the difficulties caused when 

leave requests triggered obligations 

under both statutes. See International 

Foodservice Distributors Association, 

Doc. 10180A, at 2 (‘‘The severe 

limitations on inquiries of healthcare 

providers certifying the presence of 

serious health conditions—more 

extreme than under the ADA or state 

workers’ compensation laws—should be 

revisited.’’). Several of these 

commenters stated that the ‘‘FMLA 

restrictions particularly are problematic 

when employers face a request from an 

employee that triggers obligations under 

both the FMLA and ADA, given that the 

latter requires the employer to engage in 

interactive processes to accommodate 

the employee.’’ Temple University, Doc. 

10084A, at 10; United States Postal 

Service, Doc. 10276A, at 9–10 (‘‘When 

an FMLA-qualifying ‘serious health 

condition’ is also a potential ‘disability’

under the ADA, [section 825.306’s] 

restriction on medical information is in 

conflict with the ADA interactive 

process, which allows—and arguably 

requires—an employer to gather far 

more medical information regarding an 

employee so that it can make an 

informed decision regarding possible 

accommodations.’’). Another 

commenter argued that the FMLA 

process ‘‘places artificial restrictions on 

access to necessary information 

regarding an employee’s serious health 

condition. The limitations imposed by 

the FMLA regulations go far beyond 

those imposed in such acts as the [ADA] 

and clearly fail to balance both 

employer and employee rights under the 

FMLA.’’ MGM Mirage, Doc. 10130A, at 

7; see also U.S. Chamber of Commerce, 

Doc. 10142A, at 7 (‘‘Employers found 

that the burdens to obtaining medical 

information under the FMLA are 

significantly greater’’ than inquiries 

under the ADA). 

Several commenters contrasted 

employees’ obligations under the FMLA 

medical certification process with 

employees’ obligations under the ADA 

interactive process. See, e.g., Pilchak 

Cohen & Tice, P.C., Doc. 10155A, at 23 

(‘‘employees should have a duty to 

cooperate with the employer, as they do 

under the ADA’’). A law firm reported 

that its employer clients feel that their 

hands are tied when employees fail to 

complete and return FMLA medical 

certification forms. Proskauer Rose, Doc. 

10182A, at 2. This commenter stated 

that, ‘‘[w]ith the frequent overlap 

between FMLA and employer-provided 

leave, and the interplay with disability 

discrimination and workers 

compensation laws, many employers are 

reluctant to risk disciplining an 

employee for the administrative failure 

to timely comply with the provision of 

information needed to make an FMLA 

eligibility determination.’’ Id. 

Commenters also noted that the two 

statutes allow employers to obtain 

different information regarding an 

employee’s medical condition, with the 

ADA generally permitting a broader 

exchange of information. See, e.g., 

South Central Human Resource 

Management Association, Doc. 10136A, 

at 11 (‘‘The ADA allows an employer to 

obtain all relevant medical information 

in determining whether a ‘disability’

exists. The same approach should be 

used under the FMLA.’’); see also 

MedStar Health, Inc., Doc. 10144A, at 

17 (allow ‘‘employers’ health care 

providers to obtain information 

regarding the actual diagnosis of an 

employee’s serious health condition,’’ as 

is currently permitted under the ADA). 

Still other commenters suggested that 

the Department ‘‘allow an employer the 

option of identifying key job skills and 

tasks, similar to the [ADA], to allow the 

doctor to make a more informed 

decision about the necessity of leave 

with respect to the specified essential 

job functions.’’ U.S. Chamber of 

Commerce, Doc. 10142A, at 8; see also 

United States Postal Service, Doc. 

10184A, at 14 (form should ‘‘include a 

statement that the provider has been 

informed of the employee’s essential job 

functions’’). 

Information received in response to 

the Department’s RFI suggests that one 

particularly problematic area for many 

employers is that the FMLA prohibits 

direct employer contact with the 

employee’s health care provider, while 

the ADA does not. Compare 29 U.S.C. 

2613 with EEOC Disability-Related 

Inquiries Guidance, at Question 11. 

Several commenters noted that the 

FMLA ‘‘limitations associated with the 

clarification process were created solely 

by the regulations. Such limitations 

contradict what was expressly 

addressed and permitted by Congress 

when enacting the ADA just three years 

before the FMLA.’’ The National 

Coalition to Protect Family Leave, Doc. 

10172A, at 46; see also Temple 

University, Doc. 10084A, at 10 (The 

FMLA restrictions on direct doctor 

contact are ‘‘purely a product of the 

regulation.’’). One commenter summed 

up the difficult position it believes this 

places employers in: 

If an employee requests reasonable 

accommodation under the ADA in 

connection with or before an FMLA request, 

therefore, the Company lawfully may have 

direct contact with the employee’s health 

care provider. In those cases, the rule that an 

employer may contact * * * the provider 

directly for one purpose but not for the other 

confuses employees and their providers. As 

well, whenever the Company contacts a 

provider for ADA purposes during the 

certification process, there is an inherent risk 

that the contact could be challenged as 

unlawful under the FMLA. 

Progressive, Doc. FL2, at 4. 

A number of retailers reported that 

this limitation ‘‘poses one of the biggest 

obstacles to preventing FMLA misuse 

and abuse. It also creates a conundrum 

for compliance-minded employers who 

are concerned about violating the FMLA 

when fulfilling their obligations under 

the ADA.’’ National Retail Federation, 

Doc. 10186A, at 17. Furthermore, some 

commenters felt that the prohibition 

against contact with the health care 

provider is unnecessary. One public 

employer asserted: 

Comparison with the [ADA] demonstrates 

that these additional barriers are not 

necessary. The ADA, like the FMLA, requires 

employers to review an employee’s medical 

information and make determinations about 

the employee’s ability to work based on that 

medical information. The type of medical 

information reviewed under both statutory 

schemes is similar. Additionally, the 

employer’s staff members reviewing FMLA 

requests may also be responsible for making 

determinations regarding employee ADA 

accommodation requests. 

City of New York, Doc. 10103A, at 8; see 

also Edison Electric Institute, Doc. 

10128A, at 9 (‘‘Our experience has 

shown no negative consequences of 

direct contact between employers and 

their employees’ health care providers 

in the ADA context.’’); Clark Hill PLC, 

Doc. 10151A, at 3–4 (Because the ADA 

‘‘clearly allows employers to make such 

job related inquiries to a health care 

provider on their own* * *. [t]he added 

burden of hiring a health care provider 

is not necessary’’). Comments from the 

National Retail Federation also reflect 

this view: 

Employers know based on the 

conversations they have with health care 

providers during the ADA process that the 

clarification and additional information they 

need usually does NOT require the 

involvement of another health care 

professional. The need to follow-up with the 

health care provider presents an exception 

and is borne out of legitimate needs, such as 

to gain a better understanding of an 

employee’s condition, to determine if the 

employee qualifies, and if so, what should 

the employer reasonably expect with respect 

to intermittent absences and to curb abuse. 


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National Retail Federation, Doc. 

10186A, at 17. 

These commenters, and numerous 

others, suggested that the Department 

‘‘allow employers to contact the health 

care provider to confirm that 

appointments or treatments are being 

scheduled when least disruptive to 

operations * * * and for the purposes 

of clarification and to verify authenticity 

of the certification.’’ Commonwealth of 

Pennsylvania, Doc. 10042A, at 4; see 

also City of Philadelphia Personnel 

Department, Doc. 10058A, at 2 (arguing 

that Department should permit Human 

Resource department to contact 

employee’s doctor ‘‘when medical 

certification is vague and needs 

clarification’’ in same way practice is 

‘‘currently permitted under the ADA’’); 

Frost, Brown, Todd, LLC, Doc. 10137A, 

at 2 (eliminate barrier on direct doctor 

contact as ‘‘unnecessary and 

unjustified’’ given that such contact is 

permitted under ADA and most state 

workers’ compensation laws); 

International Public Management 

Association for Human Resources and 

International Municipal Lawyers 

Association, Doc. R350A, at 4 (allow 

employers to communicate directly with 

health care providers, as is permitted 

under ADA). 

Other commenters suggested that 

employers be permitted to require that 

an employee provide a limited release 

allowing the disclosure of sufficient 

medical information to confirm the need 

for leave, as is permitted by the ADA. 

Seyfarth Shaw LLP (on behalf of a notfor-profit health care organization), Doc. 

10132A, at 4 (suggesting that employers 

be allowed to require that employees 

seeking FMLA leave sign release 

authorizing employer to submit list of 

questions to employee’s health care 

provider as is permitted by ADA); see 

also United States Postal Service, Doc. 

10184A, at 16–17 (noting that such an 

approach would be consistent with the 

ADA where it is ‘‘well settled law that 

an employee who refuses to provide an 

employer with sufficient medical 

information under the ADA can be 

denied the accommodation the 

employee seeks’’). For a fuller 

discussion of comments relating to 

medical releases and medical 

certification forms generally, see 

Chapter VI. 

More generally, many of the 

commenters stated that the FMLA 

certification process could be improved 

if a more interactive process, similar to 

that provided for under the ADA, was 

adopted. See, e.g., Fairfax County Public 

Schools, Doc. 10134A, at 4–5 (ADA 

interactive process is ‘‘much better 

model’’ and FMLA ‘‘regulations should 

encourage free communication in order 

for the parties to have a common 

understanding of medical limits and 

leave requirements’’); Manufacturer’s 

Alliance/MAPI, Doc. 10063A, at 7 

(suggesting that ‘‘the ADA informal 

interactive process used to gather 

information on an employee’s medical 

condition should be adopted under the 

FMLA’’); Society for Human Resource 

Management, Doc. 10154A, at 17 (‘‘By 

reconciling the processes permitted by 

the ADA with the FMLA, needless time 

and expense associated with the FMLA 

approval process will be eliminated.’’); 

National Association of Manufacturers, 

Doc. 10229A, at 9 (‘‘The ADA model 

should be adopted for the FMLA[.]’’). A 

human resource management 

association stated that an interactive 

process would work better than the 

‘‘exchange of paper’’ process currently 

in place under the FMLA: 

While we understand the goals reflected by 

the FMLA, perhaps it would be less 

burdensome if employers were allowed to be 

involved in the back-and-forth discussion 

between the employee and physician as 

opposed to stressing the exchange of paper 

similar to the ‘‘interactive process’’ line of 

cases that has developed under the ADA 

* * *. When family and medical leave is 

properly certified, it is our experience that 

the leave is typically granted; however, when 

the circumstances surrounding the leave are 

less than clear or the doctor’s certification is 

less than straightforward, the employer is in 

a no-win situation. 

Krukowski & Costello, S.C. (on behalf of 

Legislative Committee of the Human 

Resource Management Association of 

Southeastern Wisconsin), Doc. 10185A, 

at 4. 

Commenters suggested a number of 

potential benefits that might flow from 

implementing similar processes for 

obtaining medical information under 

the ADA and FMLA. The City of New 

York stated that more consistent 

procedures would allow employers ‘‘to 

make informed decisions in a timely 

manner’’ and reduce administrative 

compliance burdens by allowing ‘‘staff 

members who review both FMLA- and 

ADA-related requests * * * to apply a 

similar inquiry procedure to both types 

of situations.’’ Doc. 10103A, at 9. 

Another commenter stated that adopting 

similar processes would eliminate 

confusion between the FMLA and ADA 

guidelines for medical inquiries and 

interactive discussion. Northern 

Kentucky Chamber of Commerce, Doc. 

10048A, at 7. The Ohio Department of 

Administrative Services believed such a 

change would ‘‘diminish the 

requirement that the doctor correct 

vague or incomplete paperwork.’’ Doc. 

10205A, at 4–5. Another commenter 

suggested that the need for a second 

opinion examination would be reduced 

by incorporating ADA concepts into the 

FMLA certification process. See Pilchak 

Cohen & Tice, P.C., Doc. 10155A, at 22. 

A health care provider argued that 

coordinated procedures for obtaining 

medical information under the FMLA 

and the ADA would reduce employer 

costs of providing FMLA leave. MedStar 

Health, Inc., Doc. 10144A, at 17 (current 

rule creates an ‘‘unnecessary cost for 

employers, even for those with in-house 

employee health offices that are staffed 

by nurses but do not have a nurse 

practitioner or other FMLA health care 

provider’’). 

The AFL–CIO, however, argued that 

the clear distinctions between the 

‘‘reasonable accommodation’’

provisions of the ADA and the ‘‘leave 

provisions’’ of the FMLA made the 

different procedures under each statute 

for obtaining medical information 

appropriate: 

Since only ‘‘known physical or mental 

limitations’’ trigger an employer’s obligation 

to make reasonable accommodation under 

the ADA (§ 12112(b)(5)(A)), it is reasonable 

for employers to have direct contact with 

employees’ health care providers in certain 

limited situations. An ADA employer may 

require detailed medical knowledge of an 

employee’s disability in order to 

accommodate that disability in the 

workplace. Furthermore, it is advantageous 

for employees with disabilities if their 

employers understand their limitations. 

The same concerns are not present with 

respect to FMLA medical determinations—

employers are not required by the FMLA to 

make changes in the workplace to 

accommodate the serious health conditions 

of employees, and they therefore need less 

information than employers under the ADA 

in order to fulfill their statutory obligations. 

In the FMLA context, an employer does not 

need access to information beyond a doctor’s 

certification of the factors establishing the 

presence of a serious health condition under 

the statute and a doctor’s estimate of likely 

absences or duration of treatment. 

American Federation of Labor and 

Congress of Industrial Organizations, 

Doc. R329A, at 42–43. The National 

Partnership for Women & Families also 

opined that the FMLA and the ADA 

raise different privacy concerns and 

thus that a different approach to 

protecting medical privacy is 

appropriate under the FMLA. See Doc. 

10204A, at 21 (‘‘The privacy concerns 

regarding employers’ access to medical 

information are heightened in the 

context of the FMLA because the FMLA 

governs the employer’s access not only 

to the medical information of 

employees, but also to the medical 

information of employees’ family 

members. This provides justification for 

additional caution in insuring the 


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17As discussed later in this chapter, the 

Department received comments suggesting that the 

Department’s regulation is inconsistent with the 

ADA. Under the ADA, an employee is entitled to 

reasonable accommodation only if he or she has a 

covered disability and is qualified to perform (with 

or without an accommodation) all of the essential 

functions of his or her position. Only those physical 

or mental impairments that ‘‘substantially limit’’

one or more major life activities are covered 

disabilities under the ADA. 

privacy of medical information under 

the FMLA.’’). 

C. Confirming That an Employee Is Fit 

To Return To Work After Medical Leave 

Under the FMLA and the ADA 

Under the ADA, an employer may 

require an employee returning from 

medical leave to provide a doctor’s note, 

as long as it has a policy or practice of 

requiring all employees to do so, and 

may require an employee to submit to 

a fitness for duty examination when the 

‘‘employer has a reasonable belief that 

an employee’s present ability to perform 

essential job functions will be impaired 

by a medical condition or that s/he will 

pose a direct threat.’’ EEOC DisabilityRelated Inquiries Guidance, at 

Questions 15 and 17. The FMLA 

regulations, on the other hand, prohibit 

an employer from obtaining (except 

when governed by a collective 

bargaining agreement or State or local 

law) a fitness for duty examination 

when an employee returns from an 

intermittent leave absence, even if the 

request would be permitted under the 

ADA. See 29 CFR 825.310(g). The same 

section allows employers to require a 

fitness for duty certification pursuant to 

a uniformly applied policy, but limits 

that certification to a ‘‘simple 

statement’’ of an employee’s ability to 

return to work and places limitations on 

an employer’s communications with the 

employee’s health care provider 

regarding the employee’s ability to 

return to work that are not present 

under the ADA. 29 CFR 825.310(c). 

As noted in Chapter VI, numerous 

commenters questioned the FMLA 

restrictions on fitness for duty 

certifications, with many arguing that 

the current process compromises 

legitimate safety concerns. Several of 

these commenters stated that the FMLA 

fitness for duty provision ‘‘conflicts 

with that permitted under the ADA,’’

with the latter allowing both more 

substantive information and physical 

examinations. National Coalition to 

Protect Family Leave, Doc. 10172A, at 

50; see also Fisher & Phillips LLP, Doc. 

10262A, at 17–18 (‘‘Employers must be 

permitted to verify FMLA leave and 

fitness for duty in the same way they 

currently verify other absences due to 

illness.’’). An employer’s association 

that commented on the different 

standards under the ADA and the FMLA 

stated that, ‘‘an employer is more aware 

of the inherent duties of a job than the 

employee’s health care provider. Yet 

[under the FMLA], the employer may 

not delay the employee’s return to work 

while contact with the health care 

provider is being made.’’ Employers 

Association of New Jersey, Doc. 10119A, 

at 8–9. This commenter suggested that 

the Department adopt the reasonable 

belief standard used under the ADA so 

that employers could seek fitness for 

duty certifications for FMLA leave in all 

instances, and using the same processes, 

permitted by the ADA. Id. 

Several commenters representing 

employees cautioned that altering the 

fitness for duty certification procedures 

under the FMLA would place an 

‘‘unwarranted burden’’ on employees. 

See, e.g., National Partnership for 

Women & Families, Doc. 10204A, at 23. 

For a fuller discussion of employee 

comments relating to this issue, see 

Chapter VI. 

D. Offering Light Duty, Modified Work, 

or Transfers/Reassignments Under the 

FMLA and the ADA 

One of the qualifying reasons for 

medical leave under the FMLA is for an 

employee’s own serious health 

condition. The FMLA implementing 

regulations provide that an employee is 

entitled to leave under this provision 

‘‘where a health care provider finds that 

the employee is unable to work at all or 

is unable to perform any one of the 

essential functions of the employee’s 

position within the meaning of’’ the 

ADA and the EEOC’s regulations. 29 

CFR 825.115.17 The regulations prohibit 

employers from modifying an 

employee’s job functions to preclude the 

taking of FMLA leave. 29 CFR 

825.220(b)(2), see also 825.702(d)(1). 

The FMLA permits the temporary 

reassignment of employees needing 

intermittent or reduced schedule leave 

‘‘that is foreseeable based on planned 

medical treatment’’ under certain 

circumstances. See 29 U.S.C. 2612(b)(2). 

Under the ADA, an employer must 

provide reasonable accommodation, 

including job restructuring, to qualified 

individuals with disabilities. See 42 

U.S.C. 12111(9); 29 CFR 1630.2(o). 

Under EEOC Enforcement Guidance, an 

employer is not required to eliminate an 

‘‘essential function’’ of a position, but 

may do so if it wishes. ‘‘This is because 

an individual who is unable to perform 

the essential functions, with or without 

reasonable accommodation, is not a 

‘‘qualified’’ individual with a disability 

within the meaning of the ADA.’’ See 

EEOC Reasonable Accommodation 

Guidance, General Principles Section. 

Moreover, the employer has the 

‘‘ultimate discretion’’ to choose among 

reasonable accommodations as long as 

the chosen accommodation is effective. 

EEOC Reasonable Accommodation 

Guidance, at Question 9. In certain 

situations, employers must offer light 

duty or reassignment to qualified 

individuals with disabilities as a 

reasonable accommodation. See, e.g., 

EEOC, Enforcement Guidance: Workers’

Compensation and the ADA (hereafter, 

‘‘EEOC Workers’ Compensation 

Guidance’’), at Questions 27 and 28 

(discussing employer’s obligation to 

provide light duty work); EEOC FMLA 

and ADA Fact Sheet, at Question 13 

(discussing employer’s obligation to 

reassign employee to vacant position). 

A number of commenters discussed 

the different treatment afforded 

modified work, light duty, and 

transfers/reassignments under the 

FMLA and the ADA. While commenters 

sometimes used these terms 

interchangeably, this Chapter treats each 

issue separately. This is because each 

may impose different obligations and 

restrictions on employers under the 

ADA and the FMLA. Thus, for the 

Department’s purposes, the discussion 

of modified job duties generally refers to 

situations where an employer wishes to 

modify an employee’s job duties in his 

or her existing job, and particularly to 

the suggestion by commenters that 

employers should be permitted to 

remove one or more essential job 

functions in lieu of providing FMLA 

leave. The discussion of the treatment 

afforded ‘‘light duty’’ under the FMLA 

and ADA refers to particular positions 

created specifically for the purpose of 

providing work for employees who are 

unable to perform some or all of their 

normal duties. It is important to note, 

however, that the term ‘‘light duty’’ also 

is used by some employers to refer to 

situations whereby employees are 

excused from performing certain job 

functions of their normal job or are 

assigned to any less demanding 

position. The discussion below 

concerning transfers or reassignments is 

intended to cover those situations 

whereby an employer reassigns an 

employee to an alternative position, 

which need not be, and often is not, part 

of the employer’s ‘‘light duty’’ program. 

1. Modifying Job Duties 

The FMLA regulations prohibit 

employers from ‘‘changing the essential 

functions of [the employee’s] job in 

order to preclude the taking of leave.’’

29 CFR 825.220(b)(2). Many employers 

expressed support for changing the 

regulations to allow ‘‘an employer to 


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35604 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 

modify an employee’s job duties in his/ 

her existing job—including removal of 

essential job functions—in lieu of FMLA 

leave.’’ National Coalition to Protect 

Family Leave, Doc. 10172A, at 36 

(emphasis in original); see also College 

and University Professional Association 

for Human Resources, Doc. 10238A, at 

9 (allowing modification of job duties in 

employee’s existing job allows for 

‘‘greater flexibility to meet staffing 

needs’’); National Retail Federation, 

Doc. 10186A, at 14–15 (‘‘return[ing] an 

associate with a non-occupation illness 

or injury to work in a manner that is 

consistent with restrictions is not 

unfriendly to the employee and is 

consistent with the statutory intent of 

FMLA’’); DST Systems Inc. Doc. 

10222A, at 3 (‘‘Modifications enable an 

employee to continue work and avoid 

the need for FMLA leave, thus 

eliminating the burden on fellow 

employees and the employer, and loss 

of active employment for the 

employee’’). These commenters 

suggested that ‘‘an employee who can 

perform an essential function with an 

accommodation, or by virtue of the 

elimination of that task for the period he 

or she is unable to perform it, should 

not be permitted to reject the 

accommodation and pursue FMLA 

leave. This result is contrary to the 

legislative intent of FMLA, which was 

passed to protect employees who had to 

miss work rather than employees who 

merely chose to miss work because they 

prefer to avoid it.’’ National Association 

of Convenience Stores, Doc. 10256A, at 

2–3; see also Fisher & Phillips LLP, Doc. 

10262A, at 6 (same). 

Commenters supporting this view 

argued that ‘‘[a]llowing this would 

benefit both employers and employees. 

The more options employees have to 

remain at work, the less likely they are 

to exhaust their leave rights and, more 

importantly, their rights to 

reinstatement.’’ National Coalition to 

Protect Family Leave, Doc. 10172A, at 

36–37. A number of employers felt that 

requiring modified work would be 

particularly helpful in situations where 

the ‘‘employee has requested 

intermittent leave to be taken on an 

unplanned, unscheduled basis.’’

Bendix, Doc. 10079A, at 8; see also The 

Retail Industry Leaders Association, 

Doc. 10259A, at 3–4 (same); Detroit 

Medical Center, Doc. 10152A, at 3 

(same). A university employer stated 

that allowing an employer to modify 

essential functions of an employee’s job 

may be a better alternative than placing 

the employee on leave, as it allows the 

employer ‘‘greater flexibility to meet 

staffing needs, while also providing the 

employee with protections. It also 

would better rationalize the FMLA with 

accommodation provisions of the [ADA] 

and the light duty provisions of 

workers’ compensation laws.’’ Temple 

University, Doc. 10084A, at 8–9; College 

and University Professional Association 

for Human Resources, Doc. 10238A, at 

9 (same). As one law firm noted, ‘‘[a]n 

employee at work performing his or her 

job is certainly preferable to their not 

being at work at all. This option would 

also benefit employees to the extent that 

they would now have the opportunity to 

continue receiving pay.’’ Fisher & 

Phillips LLP, Doc. 10262A, at 11. 

A group representing 5,000 

physicians and other health care 

professionals specializing in the field of 

occupational and environmental 

medicine stated that employers should 

be ‘‘encouraged in the FMLA to assist 

the employee to consider alternatives 

for a better health solution than taking 

time off from work.’’ The American 

College of Occupational and 

Environmental Medicine, Doc. 10109A, 

at 2. Another commenter noted it could 

not see any ‘‘negative effect’’ to allowing 

an employer to alter the essential 

functions of an employee’s job but 

thought it was unlikely that ‘‘most 

employers would ever take this 

opportunity, as most are loathe to 

concede that essential functions may 

not really be essential.’’ Kennedy Reeve 

& Knoll, Doc. 4763A, at 12. 

A number of employee organizations 

expressed concern about any change to 

the FMLA scheme that would require 

employees to accept an employer’s offer 

of modified work in lieu of leave. As the 

National Partnership for Women and 

Families stated: 

One bedrock principle of the FMLA is the 

right of an eligible employee to take a 

specified amount of leave for family or 

medical reasons and then return to the same 

or equivalent job. To the extent the RFI is 

considering a change in the regulations to 

require an employee to accept an employer’s 

offer to make modifications to the employee’s 

existing job to accommodate a serious health 

condition, we believe such a change would 

be inconsistent with the express language 

and intent of the FMLA. We also would 

oppose any effort to penalize an employee 

who declined to accept such a position, 

except as currently permitted by law. The 

law entitles eligible employees to take up to 

twelve weeks of family or medical leave, and 

nothing in the statute, regulations, or 

legislative history suggests that an employee 

should lose the right to determine whether or 

not to take leave if an employer modifies the 

employee’s job duties. 

National Partnership for Women & 

Families, Doc. 10204A, at 16; Families 

USA, Doc. 10327A, at 5; see also 

American Federation of Labor and 

Congress of Industrial Organizations, 

Doc. R329A, at 35 (‘‘[N]either the statute 

nor the regulations provides a basis for 

treating a modified position as the 

equivalent of FMLA leave. An employee 

who accepts a modified job does not 

forfeit his or her entitlement to a full 12 

weeks of leave if the employee remains 

unable to perform the essential 

functions of the unmodified job.’’). 

Some employers also expressed 

concern about the implications of 

eliminating essential job functions. A 

state employer, who opposed any 

requirement that employers modify 

essential job functions under the FMLA, 

expressed concern that such a proposal 

would not be cost effective, require 

significantly more documentation, and 

cause ‘‘further confusion’’ between the 

FMLA and the ADA. The 

Commonwealth of Pennsylvania, Doc. 

10042A, at 2; see also The Pennsylvania 

Turnpike Commission, Doc. 10092A, at 

5 (permitting employers to modify 

existing job duties would ‘‘add to the 

existing confusion of FMLA and [ADA] 

regulations’’). Another state employer 

thought that it would be ‘‘unduly 

burdensome to require employers to 

also modify job duties for employees 

with serious health conditions’’ because 

employers already were legally 

obligated to provide modified work 

under workers’ compensation laws and 

the ADA. City of Portland, Office of 

Management and Finance, Doc. 10161A, 

at 5. A business organization in 

Northern Kentucky did not believe that 

permitting an employer to change the 

essential functions of a job would be of 

‘‘significant value.’’ Northern Kentucky 

Chamber of Commerce, Doc. 10048A, at 

4–5. This organization felt that 

permitting such a practice would likely 

add increased administrative burdens, 

cause further conflict between the ADA 

and the FMLA, and require increased 

communications with supervisors to 

ensure that all assigned work met the 

employee’s restrictions, among other 

issues. See id. at 4–5; see also National 

Business Group on Health, Doc. 

10268A, at 5 (‘‘implications of 

modifying an employee’s job duties 

include higher budgeted costs, peer 

dissatisfaction, and the administrative 

difficulty of moving an employee to a 

temporary position’’); Elaine G. Howell, 

H.R. Specialist, International Auto 

Processing, Inc., Doc. 4752, at 3 

(modifying an employee’s existing job 

duties would allow employees to collect 

the same pay and benefits while no 

longer doing an equivalent job and 

cause employees to provide their 

physicians ‘‘with reasons why they 


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could not do the most disliked portion 

of their jobs’’). 

A health system consisting of 

multiple hospitals in the Washington, 

D.C., metropolitan area expressed 

concern that modifying one or more 

essential job functions in lieu of 

providing leave under FMLA might 

mean that an employer would be 

required to modify those same functions 

as a reasonable accommodation under 

the ADA, when it otherwise would not 

be required to do so. 

In keeping with the approach under the 

[ADA] that essential job functions need not 

be modified in order to accommodate an 

employee’s disability, such modifications 

should not occur to accommodate an 

employee’s serious health condition under 

the FMLA. Both laws serve an important 

purpose in accommodating employees for the 

ultimate objective of having them perform 

the essential job functions. Thus, nothing 

should detract from determinations made 

regarding the essential job functions as 

necessary and central to a job position. 

Additionally, it is important to note that if 

employers modify essential job functions for 

FMLA purposes, they have potentially 

obligated themselves to doing so under the 

ADA. 

MedStar Health, Inc., Doc. 10144A, at 

14–15. As another employer noted, 

removing essential job functions for 

FMLA purposes ‘‘could lead to an 

argument that these functions are not 

that essential, and that the employer 

should be required to remove them from 

the position’s job duties altogether as an 

accommodation’’ under the ADA. 

Washington Metropolitan Area Transit 

Authority, Doc. 10147A, at 4; see also 

Madison Gas and Electric Company, 

Doc. 10288A, at 3 (‘‘An employer may 

be hesitant to modify an employee’s 

existing job duties due to the 

implications of the [ADA].’’). The health 

care employer felt that ‘‘[t]his would be 

an undesirable result for employers 

seeking to reasonably facilitate and 

manage ADA-related job 

accommodations.’’ MedStar Health, Inc., 

Doc. 10144A, at 14–15. Another 

company, Zimbrick, Inc. stated the 

following: 

Because FMLA and ADA overlap, 

modifying existing job duties essentially 

creates a temporary accommodation which 

could become permanent. From a business 

perspective, why would we want to pay an 

employee performing only part of the 

essential functions the same as someone who 

performs all of them? 

Doc. FL125, at 1. 

The EEOC also stated that ‘‘such an 

alteration to the FMLA rule could raise 

new ADA issues related to essential 

functions and reasonable 

accommodation.’’ United States Equal 

Employment Opportunity Commission, 

Doc. 10234A, at 3. In its comments, the 

EEOC acknowledged that the ADA 

permits, but does not require, an 

employer to modify or remove essential 

job functions. The Commission noted, 

however, that it has not yet provided 

guidance on ‘‘whether an employer’s 

reasonable accommodation duty [under 

the ADA] could be satisfied by 

reallocating essential functions with the 

express purpose of precluding leave as 

a reasonable accommodation.’’ Id. 

2. Offering Light Duty Work 

A number of organizations also 

commented on the differences between 

the FMLA’s and ADA’s treatment of 

light duty work. Section 825.220(d) of 

the FMLA regulations provides that an 

employee may voluntarily accept a 

‘‘light duty’’ assignment while 

recovering from a serious health 

condition, but cannot be coerced to do 

so. When an employee accepts a light 

duty assignment, the time spent 

working in the light duty position does 

not count against his or her FMLA leave 

entitlement. Under the FMLA, the 

employee’s right to be restored to the 

same (or equivalent) position held prior 

to the start of the leave, however, 

expires after a cumulative period of 12 

weeks of leave and light duty work. 29 

CFR 825.220(d); see also Wage and Hour 

Opinion Letter FMLA–55 (March 10, 

1995). By contrast, under the ADA, an 

employer does not have to create a light 

duty position for an individual with a 

disability but, if a vacant, light duty 

position already exists, the employer 

must reassign the individual with a 

disability to the position if there is no 

other effective accommodation available 

and the reassignment would not pose an 

undue hardship. See EEOC, Workers’

Compensation Guidance, at Questions 

27 and 28. In addition, if the only 

effective accommodation available is 

similar or equivalent to a light duty 

position, an employer must provide that 

accommodation, absent undue 

hardship. See EEOC, Workers’

Compensation Guidance, at Question 

27. 

Nearly all respondents to a survey 

conducted by a human resource 

association in Ohio ‘‘believed 

employees requesting leave for their 

own serious health conditions should be 

required to accept light duty work 

consistent with their medical 

restrictions, if offered.’’ Miami Valley 

Human Resource Association, Doc. 

10156A, at 6–7. The National 

Association of Convenience Stores, the 

U.S. Chamber of Commerce, the Society 

for Human Resource Management, the 

College and University Professional 

Association for Human Resources, and 

others agreed. See National Association 

of Convenience Stores, Doc. 10256A, at 

2–3; U.S. Chamber of Commerce, Doc. 

10142A, at 11; Society for Human 

Resource Management, Doc. 10154A, at 

9; College and University Professional 

Association for Human Resources, Doc. 

10238A, at 9; American Bakers 

Association, Doc. R354A, at 4; American 

Hotel & Lodging Association, Doc. 

R366A, at 3; National Public Employer 

Labor Relations Association, Doc. 

R358A, at 8. Employers who supported 

this proposal believed that ‘‘[i]n many 

cases, light duty may be a better 

alternative than placing the employee 

on leave, as it allows the employer 

greater flexibility in meeting its staffing 

needs. Such a change also would better 

rationalize the FMLA with the 

accommodation provisions of the [ADA] 

and the light duty provisions of many 

workers’ compensation laws.’’ College 

and University Professional Association 

for Human Resources, Doc. 10238A, at 

9. Other commenters stated that it ‘‘is 

unnecessary, and often ill-advised, to 

allow an employee to refuse light duty 

* * * Experience has shown that 

employees with minor injuries generally 

recover more quickly if they are 

working, gradually returning to their 

former capabilities.’’ Society for Human 

Resource Management, Doc. 10154A, at 

9; see also The Retail Industry Leaders 

Association, Doc. 10259A, at 3–4 

(same). 

Several employers supporting 

mandatory light duty work thought that 

such work should count against an 

employee’s 12-week FMLA entitlement. 

See National Association of 

Convenience Stores, Doc. 10256A, at 2–

3; Fisher & Phillips LLP, Doc. 10262A, 

at 6; American Bakers Association, Doc. 

R354A, at 4 (Department should clarify 

that ‘‘time spent in light duty work 

away from the employee’s usual job 

counts against the 12 weeks of FMLA 

entitlement for all purposes’’). As one 

employer noted, ‘‘light duty should 

count against an employee’s FMLA 

leave entitlement and reinstatement 

rights. Otherwise, the employer ends up 

essentially making reasonable 

accommodations for FMLA even if the 

condition is not an ADA-qualifying 

disability.’’ Sally L. Burnell, Program 

Director, Indiana State Personnel 

Department, Doc. 10244C, at 4. 

On the other hand, some employers 

thought light duty should not count 

against the employee’s FMLA leave 

entitlement. A survey conducted by a 

national law firm revealed that 66% of 

the almost 150 individuals who 

responded on behalf of their companies 

did not believe that light duty work 

should be counted against an 


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18While the FMLA permits the temporary 

reassignment of employees needing intermittent or 

reduced schedule leave ‘‘that is foreseeable based 

on planned medical treatment’’ under certain 

circumstances, the statute expressly requires that 

the alternative position have equivalent pay and 

benefits. 29 U.S.C. 2612(b)(2). 

employee’s FMLA leave entitlement. 

‘‘The vast majority of respondents felt 

that light duty is generally the result of 

a work injury or occupational injury and 

is better dealt with through the ADA or 

workers’ compensation. Most 

respondents stated that with light duty, 

an employee is usually working and 

therefore not on leave.’’ Hinshaw & 

Culbertson LLP, Doc. 10075A, at 4; see 

also MedStar Health, Inc., Doc. 10144A, 

at 14 (‘‘When an employee works, even 

in an alternate light duty capacity, he/ 

she is not absent under the meaning of 

the FMLA.’’). 

A number of organizations 

representing employees also opposed 

permitting an employer to modify an 

employee’s existing job in lieu of 

providing leave. See, e.g., American 

Federation of Labor and Congress of 

Industrial Organizations, Doc. R329A, at 

34 (‘‘treating light duty work as the 

equivalent of FMLA leave falls 

squarely’’ within statutory prohibition 

making it unlawful to interfere with, 

restrain, or deny exercise of right to take 

FMLA leave and conflicts with 

regulatory provision concerning waiver 

of FMLA rights). Several of these 

commenters thought that counting light 

duty as FMLA leave would be unfair to 

employees because ‘‘[i]f an individual is 

at work, even if the duties have been 

modified to address the employee’s 

illness or care giving responsibilities, he 

or she is still engaging in productive 

activity for the employer.’’ University of 

Michigan Center for the Education of 

Women, Doc. 10194A, at 2; see also 

Families USA, Doc. 10327A, at 4–5 

(‘‘opposes any reduction in FMLA leave 

for time spent working in a ‘‘light duty’’

position.’’); Coalition of Labor Union 

Women, Doc. R352A, at 4–5 (‘‘counting 

‘‘light duty’’ work as FMLA leave is not 

appropriate and runs counter to the 

intent of the statute’’). 

3. Standards for Transferring/ 

Reassigning Employees 

The Department also received 

comments regarding the differing 

standards under the FMLA and the ADA 

for transferring or reassigning 

employees to alternative positions. The 

FMLA provisions regarding transfers to 

an alternative position, discussed more 

fully in Chapter VIII, generally permit 

the employer to temporarily transfer an 

employee who needs foreseeable 

intermittent or reduced schedule leave 

for planned medical treatment to an 

alternative position with equivalent pay 

and benefits. The position must be one 

for which the employee is qualified and 

which better accommodates recurring 

periods of leave. See 29 U.S.C. 

2612(b)(2). (See also Chapter IV 

discussing unscheduled intermittent 

leave.). Under the ADA, part-time work 

or occasional time-off may be a 

reasonable accommodation. As a general 

matter, transfer is the accommodation of 

last resort under the ADA. However, if, 

or when, an employee’s need for parttime work or reduced hours in his or her 

current position creates an undue 

hardship for an employer, the employer 

must transfer the employee to a vacant, 

equivalent position for which the 

employee is qualified, unless doing so 

would present an undue hardship for 

the employer. If an equivalent position 

is not available, the employer must look 

for an equivalent position at a lower 

level. Further accommodation is not 

required if a lower level position is also 

unavailable. See EEOC FMLA and ADA 

Fact Sheet, at Question 13. Employers 

who place employees in lower level 

positions are not required to maintain 

the employee’s salary at the level of the 

higher grade, unless the employer does 

so for other employees. See EEOC 

Technical Assistance Manual § 3.10.5. 

As discussed more fully in Chapter 

VIII, a number of commenters suggested 

that the FMLA regulations should be 

amended so that employers may transfer 

employees who request unscheduled or 

unforeseeable intermittent leave. Some 

commenters supporting reassignment 

argued that employers should be 

permitted to temporarily transfer an 

employee to an alternative position in 

‘‘all cases involving intermittent leave 

or reduced leave schedules.’’ United 

Parcel Service, Doc. 10276A, at 5. Still 

other commenters suggested that 

employers should be allowed, in certain 

circumstances, to permanently reassign 

employees needing unforeseeable 

intermittent leave due to a chronic 

condition. See Betsy Sawyers, Director, 

Human Resources Department, Pierce 

County, Washington, Doc. FL97, at 4. 

Many employers that supported 

reassignment urged that a process 

similar to that provided under the ADA 

be adopted, whereby reassignment 

‘‘could be conditioned on the 

employer’s determination that 

unscheduled leave could not be 

continued without jeopardizing the 

essential functions of the job. After 

making such a determination, the 

employer could reassign the employee 

to a position that better accommodated 

intermittent attendance.’’ Fairfax 

County Public Schools, Doc. 10134A, at 

3; see also National Council of Chain 

Restaurants, Doc. 10157A, at 10–11 

(FMLA should ‘‘accommodate 

employers in a manner similar to the 

ADA,’’ by permitting the employer to 

transfer a manager needing unscheduled 

intermittent FMLA leave ‘‘to a lesser 

management or a non-management 

position that better accommodates the 

employer’s needs’’). As one employer 

stated, this approach ‘‘would provide 

employers with more flexibility in 

accommodating the employee’s need for 

leave while enabling the employer to 

better manage the workforce.’’ Exelon, 

Doc. 10146A, at 8. 

A law firm suggested that employers 

also be permitted to reduce the 

employee’s pay and benefits upon 

transfer, as is permitted for 

reassignments under the ADA. See 

Pilchak Cohen & Tice, P.C., Doc. 

10155A, at 12.18 Another commenter 

also recommended that the employer 

‘‘be allowed to adjust the employee’s 

compensation and benefits so that they 

are commensurate with the position into 

which the employee is being moved.’’

National Council of Chain Restaurants, 

Doc. 10157A, at 10–11. The law firm 

supporting this approach explained 

that, otherwise, the provisions for 

transferring employees under the FMLA 

are ‘‘inherently unrealistic’’ because the 

‘‘employee would always prefer to be 

transferred to a position with less 

responsibilities and less duties, but with 

equal pay and benefits.’’ Pilchak Cohen 

& Tice, P.C., Doc. 10155A, at 12. 

E. Permitting ‘‘Reasonable Leave for 

Medical Reasons’’ Under the FMLA and 

the ADA 

An employee is entitled to reasonable 

accommodation, including medical 

leave, under the ADA only if he or she 

has a covered disability and is qualified 

to perform (with or without an 

accommodation) the essential functions 

of the position. 42 U.S.C. 

12112(b)(5)(A); see generally EEOC 

Reasonable Accommodation Guidance. 

Only those physical or mental 

impairments that ‘‘substantially limit’’

one or more major life activities are 

covered disabilities under the ADA. See 

42 U.S.C. 12102(2)(A). Moreover, an 

employer is not required to provide any 

accommodation that would pose an 

‘‘undue hardship’’ on the operation of 

the employer’s business. See 42 U.S.C. 

12112(b)(5)(A); 29 CFR 1630.9. ‘‘Undue 

hardship’’ means significant difficulty 

or expense and refers not only to 

financial difficulty, but also to requested 

accommodations that are unduly 

extensive, substantial, or disruptive, or 

those that would fundamentally alter 


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19The EEOC has stated that ‘‘in some instances, 

an employer’s refusal to modify a workplace policy, 

such as a leave or attendance policy, could 

constitute disparate treatment as well as a failure to 

provide a reasonable accommodation.’’ EEOC 

Reasonable Accommodation Guidance, at Question 

24. Numerous court decisions have held that the 

ADA does not protect individuals who have 

‘‘erratic, unplanned absences.’’ EEOC v. Yellow 

Freight Sys., Inc., 253 F.3d 943, 948 (7th Cir. 2001) 

(‘‘our court, and every circuit that has addressed 

this issue has held that ‘‘in most instances the ADA 

does not protect persons who have erratic, 

unexplained absences, even when those absences 

are a result of a disability. The fact is that in most 

cases, attendance at the job site is a basic 

requirement of most jobs.’’); accord Brenneman v. 

MedCentral Health System, 366 F.3d 412 (6th Cir. 

2004); Mason v. Avaya Communications, Inc., 357 

F.3d 1114 (10th Cir. 2004); Nesser v. Trans World 

Airlines, Inc., 160 F.3d 442, 445 (8th Cir.1998); 

Hypes v. First Commerce Corp., 134 F.3d 721 (5th 

Cir.1998); Lyons v. Legal Aid Soc’y, 68 F.3d 1512, 

1516 (2d Cir.1995); Tyndall v. Nat’l Educ. Ctrs., 31 

F.3d 209, 213 (4th Cir.1994); Carr v. Reno, 23 F.3d 

525, 530 (D.C. Cir.1994); cf. Nesser v. Trans World 

Airlines, Inc., 160 F.3d 442, 445 (8th Cir.1998); 

Hypes v. First Commerce Corp., 134 F.3d 721 (5th 

Cir.1998); Lyons v. Legal Aid Soc’y, 68 F.3d 1512, 

1516 (2d Cir.1995); Tyndall v. Nat’l Educ. Ctrs., 31 

F.3d 209, 213 (4th Cir.1994); Carr v. Reno, 23 F.3d 

525, 530 (D.C. Cir.1994); cf. Humphrey v. Memorial 

Hospitals Ass’n, 239 F.3d 1128 (9th Cir. 2001) 

(noting ‘‘that although excessive or unscheduled 

absences may prevent an employee from performing 

the essential functions of his job and thereby render 

him not otherwise qualified for purposes of the 

ADA, regular and predictable attendance is not per 

se an essential function of all jobs’’); Ward v. Mass. 

Health Research Inst., 290 F.3d 29 (1st Cir. 2000) 

(while ‘‘regular and reliable schedule may be an 

essential element of most jobs, resolution of the 

issue in each case requires a fact-intensive inquiry 

into the pattern of the attendance problem and the 

characteristics of the job in question’’); see also 

David v. Florida Power & Light Co., 205 F.3d 1301 

(11th Cir. 2000) (holding that overtime, like job 

presence, can be an essential function of a job). 

20 In the process of finalizing the FMLA 

implementing regulations, the Department received 

comments questioning whether section 825.115 was 

intended to mean that an eligible ‘‘employee must 

be found unable to perform each and every essential 

function (i.e. all), or only any single one, or some 

of several of the essential functions’ in order to take 

FMLA leave due to his or her own serious health 

condition. The Department made clear in the 

preamble to its Final Rule that ‘‘[t]his section was 

intended to reflect that an employee would be 

considered ‘‘unable to perform the functions of the 

position’’ * * * if the employee could not perform 

any one (or more) of the essential functions.’’ 60 FR 

2179, 2196 (Jan. 6, 1995). 

the nature or operation of the business. 

See 42 U.S.C. 12111(10); 29 CFR 

1630.2(p). An employer also is not 

required to eliminate an essential 

function of an employee’s position 

when providing accommodation under 

the ADA. See generally EEOC 

Reasonable Accommodation 

Guidance.19

One of the stated purposes of the 

FMLA is to permit employees to take 

reasonable leave for medical reasons ‘‘in 

a manner that accommodates the 

legitimate interests of employers.’’ 29 

U.S.C. 2601(b). The statute entitles 

employees to FMLA leave for (among 

other qualifying reasons) a serious 

health condition that makes them 

unable to perform the functions of their 

position. See 29 U.S.C. 2612(a)(1)(D). 

The FMLA implementing regulations 

adopt the ADA ‘‘essential function’’

concept in explaining when an eligible 

employee is entitled to leave for his or 

her own serious health condition. Under 

section 825.115, leave may accrue to an 

eligible employee ‘‘where a health care 

provider finds that the employee is 

unable to work at all or is unable to 

perform any one of the essential 

functions of the employee’s position.’’

29 CFR 825.115. Other provisions of the 

FMLA allow an employee to take leave 

intermittently or on a reduced schedule. 

See 29 U.S.C. 2612(b); 29 CFR 825.203–

825.205. Unlike the ADA, however, 

neither the FMLA regulations nor the 

statute limits the availability of such 

leave to situations where the employee’s 

absence does not impose an ‘‘undue 

hardship’’ on the employer. 

A number of commenters believed 

that the FMLA regulations should be 

revised to incorporate the ADA concept 

of ‘‘substantially limited’’ in working. 

As a group of human resource 

professionals stated: 

The Act seems to suggest that an employee 

is only entitled to FMLA leave for a serious 

health condition when the condition makes 

the employee totally unable to work. The 

Regulations have gone one step further and 

state that an employee is entitled to FMLA 

leave if he/she is unable to perform just one 

essential job function. * * * Employees 

should only be able to take FMLA leave if 

they are substantially limited in their ability 

to perform essential job functions. 

South Central Human Resource 

Management Association, Doc. 10136A, 

at 18; see also Baldor Electric Company, 

Doc. 10320A, at 2 (leave should only be 

allowed when a person cannot perform 

the majority of the essential functions). 

According to another employer, ‘‘the 

current regulatory framework allows for 

leave when an employee is unable to 

perform only one essential function of 

his or her job, even if there are ten other 

essential functions of the job that the 

employee is able to perform. This 

conflicts with the provisions of the 

[ADA].’’ Verizon, Doc. 10181A, at 7.20

Commenters also routinely contrasted 

an employer’s ability to manage 

absenteeism under the FMLA and the 

ADA, particularly in situations where 

an individual takes unscheduled 

intermittent leave. A law firm 

representing employers summarized the 

inconsistencies between the two 

statutes: 

The [FMLA] Regulations clearly state that 

the ADA definition of ‘‘essential job 

functions’’ is to be used under the FMLA. 29 

CFR 825.115. Although attendance is an 

essential job function under well-established 

ADA case law, the Regulations ignore the 

case law and permit employees to maintain 

unacceptable attendance records on a 

permanent basis. In fact, the FMLA 

Regulations permit employees with 

permanent chronic conditions to be absent 

with impunity for approximately 25% of a 

work year. * * * The ADA, on the other 

hand, does not protect an employee with a 

disability who cannot maintain an acceptable 

attendance record. 

The courts have consistently and 

uniformly held that attendance is an essential 

job function and that a continuous or 

reduced schedule leave of a reasonable 

duration are reasonable accommodations 

under the ADA. * * *. [T]he FMLA was 

intended to cover a temporary emergency or 

critical need for medical leave, not a 

permanent non-emergency or non-critical 

need for medical leave. 

Spencer Fane Britt & Browne LLP, 

Doc. 10133C, at 9; see also South 

Central Human Resource Management 

Association, Doc. 10136A, at 13 (noting 

inconsistency between ADA and FMLA 

treatment of attendance and stating that 

FMLA regulations ‘‘permit chronic 

absenteeism problems whereas the ADA 

does not’’); United States Postal Service, 

Doc. 10184A, at 24 (‘‘Pursuant to the 

ADA, an employer is not required to 

accommodate chronic absenteeism or 

allow employees to work on a part-time 

schedule while encumbering a full-time 

position. Yet the FMLA requires an 

employer to do just that.’’); Association 

of Corporate Counsel, Doc. FL31, at 2–

3 (suggesting, when discussing 

employer’s ability to control 

absenteeism under FMLA, that ‘‘current 

regulations protect employee behavior 

that the Federal Courts and the EEOC 

have concluded is not only 

unreasonable but also inconsistent with 

the essential needs and expectations of 

employers’’). For a full discussion of 

comments regarding the impact of 

unscheduled intermittent leave on 

attendance, see Chapter IV. 

To address these concerns, a 

significant number of employers and 

organizations representing employers 

suggested that intermittent or reduced 

schedule medical leave should not be 

required under the FMLA when it 

presents an ‘‘undue hardship’’ or means 

that the employee cannot perform the 

essential functions of the position, as 

would be the case under the ADA. 

[P]rovisions could be added to the FMLA 

and its regulations to take into account the 

impact of intermittent leave on the employer. 

The ADA utilizes reasonableness and undue 

hardship standards when assessing employee 

requests for accommodations. Under the 

ADA, an employer is not required to 

fundamentally alter the nature of a position 

in order to accommodate an employee’s 


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disability. The FMLA and its regulations 

should include similar considerations. An 

employer should not be required to grant a 

request for intermittent leave if the request 

fundamentally alters the nature of the 

employee’s position (i.e., effectively changes 

the start or end time for the position, allows 

the employee to excuse himself/herself from 

work without notice, excuses the employee 

from performing essential duties, excuses the 

employee from the requirement to work 

overtime, etc.). An employer should not be 

required to grant a request for intermittent 

leave if there is no reasonable way to cover 

the employee’s work duties (e.g., because of 

the nature of the position; because the 

employee cannot provide reasonable advance 

notice of the leaves; because the leaves are 

frequent). 

University of Minnesota, Doc. 4777A, 

at 3; see also National Retail Federation, 

Doc. 10186A, at 11 (‘‘One suggestion is 

that intermittent leave should not be 

required where the unpredictable or 

short-term nature of the absences 

impose undue hardship or mean that 

the employee cannot perform the 

essential functions of the job.’’); 

National Council of Chain Restaurants, 

Doc. 10157A, at 10 (‘‘same defenses 

available under the ADA [e.g., undue 

hardship] should be available’’ when 

employee is unable to perform essential 

functions); Texas Parks and Wildlife 

Department, Doc. 10253A, at 1 (allow 

employers to consider business 

necessity when intermittent leave 

extends beyond one year or 480 hours 

of leave); International Public 

Management Association for Human 

Resources and International Municipal 

Lawyers Association, Doc. R350A, at 3 

(summarizing survey of local, state, and 

federal government employers, 

including respondent’s suggestion that 

‘‘an ADA-type exception be made if the 

need for intermittent leave will pose an 

undue hardship on the employer’’). One 

commenter suggested that amending the 

FMLA to include ‘‘undue hardship’’ and 

‘‘direct threat’’ defenses would import 

the ‘‘important balance between 

employee and employer rights found in 

the ADA’’ to the FMLA and make the 

two laws better integrated. Pilchak 

Cohen & Tice, P.C., Doc. 10155A, at 18. 

While not specifically addressing the 

inclusion of an ‘‘undue hardship’’

defense under FMLA, several 

commenters representing employees 

indicated that they ‘‘strongly oppose 

any reconsideration of the FMLA that 

would serve to limit FMLA’s scope or 

coverage.’’ American Federation of 

State, County and Municipal 

Employees, Doc. 10220A, at 1. A 

membership organization affiliated with 

the AFL-CIO expressed concern about 

the impact ‘‘scaling back’’ FMLA 

protections would have. They noted 

that, at each FMLA workshop they 

conducted, ‘‘attendees repeatedly told 

us that, without the protections offered 

by the FMLA, many would have been 

out of work and without crucial 

healthcare benefits, due to their 

employers’ very strict absence policies.’’

Coalition of Labor Union Women, Doc. 

R352A, at 2. The National Partnership 

for Women & Families, while 

acknowledging that ‘‘situations 

involving unscheduled leave may 

present unique challenges for both 

employees and employers,’’ argued that 

limiting the availability of unscheduled 

leave ‘‘would be inconsistent with the 

very purpose of the FMLA’’ which 

provides for unscheduled leave because 

‘‘it is impossible to plan or script every 

situation where family or medical leave 

is needed.’’ Doc. 10204A, at 12. 

VIII. Transfer to an Alternative Position 

The RFI did not specifically ask 

questions about an employer’s ability to 

transfer an employee to an ‘‘alternative 

position’’ but the Department received 

many unsolicited comments on this 

topic. Under the Act, an employer may 

transfer an employee to an ‘‘alternative 

position’’ with equivalent pay and 

benefits when the employee needs to 

take intermittent or reduced schedule 

leave ‘‘that is foreseeable based on 

planned medical treatment[.]’’ 29 U.S.C. 

2612(b)(2). This statutory provision was 

intended ‘‘to give greater staffing 

flexibility to employers by enabling 

them temporarily to transfer employees 

who need intermittent leave or leave on 

a reduced leave schedule to positions 

more suitable for recurring periods of 

leave. At the same time, it ensures that 

employees will not be penalized for 

their need for leave by requiring that 

they receive equivalent pay and benefits 

during the temporary transfer.’’ 60 FR 

2180, 2202 (Jan. 6, 1995). 

Section 825.204 of the regulations 

explains more fully when an employer 

may transfer an employee to an 

alternative position in order to 

accommodate intermittent leave or a 

reduced leave schedule. Section 

825.204(a) sets the general parameters 

for the transfer: ‘‘If an employee needs 

intermittent leave or leave on a reduced 

leave schedule that is foreseeable based 

on planned medical treatment for the 

employee or a family member, * * * 

the employer may require the employee 

to transfer temporarily, during the 

period the intermittent or reduced leave 

schedule is required, to an available 

alternative position for which the 

employee is qualified and which better 

accommodates recurring periods of 

leave than does the employee’s regular 

position.’’ 29 CFR 825.204(a). 

Section 825.204(d) prohibits an 

employer from ‘‘transfer[ing] the 

employee to an alternative position in 

order to discourage the employee from 

taking leave or otherwise work a 

hardship on the employee.’’ Section 

825.204(e) limits the length and 

circumstances of the transfer: ‘‘When an 

employee who is taking leave 

intermittently or on a reduced leave 

schedule and has been transferred to an 

alternative position, no longer needs to 

continue on leave and is able to return 

to full-time work, the employee must be 

placed in the same or equivalent job as 

the job he/she left when the leave 

commenced. An employee may not be 

required to take more leave than 

necessary to address the circumstance 

that precipitated the need for leave.’’ 29 

CFR 825.204(e). Unlike a ‘‘light duty’’

assignment under section 825.220 of the 

regulations, a transfer to an alternative 

position does not require the employee’s 

consent. Cf. 29 CFR 825.220(d) (light 

duty) (‘‘[Regulations do] not prevent an 

employee’s voluntary and uncoerced 

acceptance (not as a condition of 

employment) of a ‘‘light duty’’

assignment while recovering from a 

serious health condition[.]’’). 

A. Department’s Regulations Only 

Permit Transfer Where Employee Needs 

Intermittent Leave or Leave on a 

Reduced Leave Schedule That Is 

Foreseeable Based on Planned Medical 

Treatment. 

A significant number of commenters 

questioned why the regulations permit 

an employer to transfer an employee 

only when the employee’s need for 

leave is foreseeable based on planned 

medical treatment as opposed to a 

chronic need for unforeseeable leave. 

These stakeholders noted as an initial 

matter that the statute is silent on the 

issue. ‘‘We recognize that while the 

statute allows an employer to transfer an 

employee taking intermittent or reduced 

schedule leave for planned medical 

treatment, * * * it is silent on taking 

unforeseeable intermittent leave or 

foreseeable leave unrelated to 

treatment.’’ Seyfarth Shaw LLP (on 

behalf of a not-for-profit health care 

organization), Doc. 10132A, at 3. It is 

the regulations, commenters contended, 

that prohibit a transfer in the 

unforeseeable intermittent context. ‘‘As 

presently drafted, § 825.204 only 

permits employers to transfer an 

employee to an alternative equivalent 

position where the employee’s need for 

intermittent leave is ‘foreseeable based 

on planned medical treatment.’’’ United 

Parcel Service, Doc. 10276A, at 5. 

‘‘Section 825.204 allows an employer to 

transfer an employee to an alternative 


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position where the leave is foreseeable 

based on planned medical treatment for 

the employee or a family member.’’

Seyfarth Shaw LLP (on behalf of a notfor-profit health care organization), Doc. 

10132A, at 3. Moreover, Ford & Harrison 

noted a recent Sixth Circuit case, which 

stated that the Department’s regulations 

allow ‘‘an employer [to] * * * transfer 

an employee only when the need for the 

intermittent leave is foreseeable.’’ Doc. 

10226A, at 6. See Hoffman v. 

Professional Med Team, 394 F.3d 414, 

421, n.11 (6th Cir. 2005) (transfer of 

employee with chronic condition 

requiring unforeseeable leave likely 

prohibited by sections 825.204(a), (c), 

and (d)). 

Many commenters saw no practical 

basis for differentiating between 

foreseeable and unforeseeable need for 

leave in this context. ‘‘We do not see 

any basis for distinguishing between 

foreseeable vs. unforeseeable leaves for 

purposes of such temporary transfers.’’

United Parcel Service, Doc.10276A at 5. 

Similarly, another commenter stated: 

[Section 825.204 provides n]o similar 

option * * * for employers to transfer or 

otherwise alter the duties of an employee 

who needs unscheduled or unforeseeable 

intermittent leave. Even if the employee’s 

unscheduled intermittent absences may 

result in substantial safety risks to the public 

or co-employees, or could cause serious 

disruption to the operations of the employer, 

such employee’s duties or position cannot be 

altered as a result of the unscheduled 

intermittent leave. 

The Southern Company, Doc. 10293A, 

at 3. Another company echoed the same 

concern that under the current 

regulatory scheme ‘‘[e]mployers do not 

have [the option] to transfer or 

otherwise alter the duties of an 

employee who needs unscheduled or 

unforeseeable intermittent leave.’’

Edison Electric Institute, Doc. 10128A, 

at 6. 

In fact, many employers reported that 

the underlying rationale for the transfer 

provision—to provide ‘‘greater staffing 

flexibility’’ while maintaining the 

employee’s same pay and benefits—is 

best served where the employee’s need 

for leave is unforeseeable. ‘‘[I]f there is 

to be such a distinction, then a strong 

argument can be made that the DOL and 

Congress got it exactly backwards. 

Indeed, it is much easier for employers 

to arrange temporary coverage of an 

employee’s normal job duties where the 

intermittent leaves occurs on a regular 

and foreseeable schedule, than it is to 

accommodate an employee with a 

chronic condition with unforeseeable 

flare-ups[.]’’ United Parcel Service, Doc. 

10276A, at 5. Other commenters agreed: 

Employers report that it is most often the 

employees whose intermittent or reduced 

leave schedule is unforeseeable who cause 

the most disruption in the workplace. For 

example, an employee works on an assembly 

line in a factory that runs on a 24-hour basis 

in three shifts. The employee has been 

approved to take intermittent leave to 

accommodate migraines and has been calling 

in sick on a relatively frequent, but 

unforeseeable basis (e.g., approximately three 

times a month), giving only about an hour 

notice before the start of his shift. Good 

attendance is essential to this position 

because an absence can hold up the entire 

production line. 

Ford & Harrison LLP, Doc. 10226A, at 6. 

‘‘The most complicated part of 

intermittent leave * * * occurs with 

unplanned intermittent leave * * * 

[A]ccommodating late arrivals or even 

early departures to satisfy the 

requirements of an intermittent leave 

can create problems in the workplace, 

including overburdening other workers 

and creating a sense of inequity and 

frustration.’’ Leonard, Street and 

Deinard, Doc. 10330A, at 2. 

Other commenters criticized the 

entire idea of ‘‘alternative positions’’ as 

unrealistic and/or problematic. For 

example, one law firm stated that 

‘‘alternative positions’’ are a fiction: 

Alternative positions do not exist in the 

real world. [The regulations] provide that in 

a reduced schedule situation, ‘‘an [employer] 

may assign an employee to an alternate 

position with equivalent pay and benefits 

that better accommodate the employee’s 

intermittent or reduced leave schedule.’’

* * * When this provision is pointed out, 

the overwhelming majority of employers I 

work with just laugh. Employers simply do 

not have ‘‘alternative positions’’ hanging 

around which they can simply slot someone 

into. Most FMLA-covered companies are 

small and medium sized. They do not have 

hundreds of positions. This was a regulatory 

provision written without understanding of 

the real world. Real companies are trying to 

run lean. They do not [have], and cannot 

afford to create, an extra position which is 

not needed. So, the ‘‘alternative position’’

provision is generally useless. 

Boardman Law Firm, Doc. FL4, at 2. 

Even where an alternative position 

exists to which an employee on 

intermittent leave may be assigned, 

problems can arise. ‘‘Employees on 

unpredictable intermittent leave who 

have been placed in lower-level 

positions on a temporary basis can 

degrade morale of other employees in 

the same positions. The other 

employees in the same positions may 

earn lower wages than the employees on 

FMLA leave, but those other employees 

are held to higher attendance standards, 

absent their own need for FMLA leave.’’

North Dakota Society for Human 

Resource Management State Council, 

Doc. FL90 at 3. ‘‘[T]he regulation that 

permits an employer to transfer an 

employee to another position which 

better accommodates the intermittent 

leave is inherently unrealistic. Is there 

any doubt that an employee would 

always prefer to be transferred to a 

position with less responsibility and 

less duties, but with equal pay and 

benefits? And, would an employee 

placed into such a position of equal pay 

and benefits, but with less 

responsibilities and duties, have any 

motivation to get better?’’ Pilchak Cohen 

& Tice, P.C., Doc. 10155A, at 12. 

B. Recommendations From the 

Regulated Community 

Most stakeholders who submitted 

comments on this subject agreed that 

the regulations should be revised to 

permit employee transfers in the case of 

either foreseeable or unforeseeable 

leave: ‘‘This section should be amended 

to permit the transfer to an alternative 

position for unforeseen intermittent 

absences or foreseen intermittent 

absences unrelated to medical 

treatment. * * * In the absence of such 

an amendment, prohibiting such 

transfers often creates undue hardship 

to our organization’s ability to provide 

patient care or other services and does 

not further the purposes of the FMLA.’’

Seyfarth Shaw LLP (on behalf of a notfor-profit health care organization), Doc. 

10132A, at 3. ‘‘The FMLA regulations 

should be clarified to ensure that the 

employer may transfer the employee to 

a position that better accommodates an 

unforeseeable intermittent leave 

schedule.’’ Ford & Harrison LLP, Doc. 

10226A, at 6. ‘‘DOL should revise 

§ 825.204 to permit temporary transfer 

in all cases involving intermittent leave 

or reduced leave schedules.’’ United 

Parcel Service, Doc. 10276A, at 5. 

‘‘Section 825.204 should be modified to 

allow an employer to transfer an 

employee who requires unscheduled 

intermittent leave to an alternative 

position with equivalent pay and 

benefits or to otherwise alter such 

employee’s job duties (e.g., assign to 

another shift) in order to better 

accommodate the periods of 

intermittent leave. Such a modification 

would allow an employer to determine 

how to best accommodate the 

employee’s periodic and unforeseen 

absences to minimize the disruption in 

the workplace and perhaps avoid a 

safety risk to others, while at the same 

time allow the employee to perform the 

essential functions of the position to the 

best of his or her ability.’’ The Southern 

Company, Doc. 10293A, at 3. 

‘‘Employers should be provided with 

greater flexibility to temporarily transfer 


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employees to positions that better 

accommodate intermittent and reduced 

schedule absences.’’ Taft, Stettinius & 

Hollister LLP, Doc. FL107, at 3. ‘‘The 

employer should be permitted to move 

an employee on intermittent leave 

* * * to another position with the same 

salary and benefits, if in such a position 

the leave would be less disruptive. 

* * * [P]ermitting the employer 

flexibility to relocate an employee at the 

same salary and benefits * * * would 

help to address the difficulties 

employers have in addressing demands 

for intermittent leave for chronic 

illnesses.’’ Leonard, Street and Deinard, 

Doc. 10330A, at 2. ‘‘[T]he employer 

should be able to place employees 

whose restrictions only require some 

additional rest periods, or less strenuous 

work, into other slots, without requiring 

time off.’’ Indiana Chamber of 

Commerce, Doc. 10170A, at 3. 

‘‘Employers should be able to reassign 

an employee on intermittent leave, 

without loss to the hourly pay rate or 

degradation in assignment, to a position 

schedule that would be more conducive 

to an intermittent schedule without fear 

of retaliation claims. Employees would 

still be returned to the same or similar 

job assignment at the end of the FMLA 

leave.’’ County of Placer, Doc. 10067A, 

at 3. 

Some employers felt the move should 

be potentially permanent where the 

employee’s schedule cannot meet the 

employer’s need: 

Where regular and predictable attendance 

is an essential function of a position, and the 

employee occupying that position has a 

chronic medical condition that the physician 

has determined will never allow regular and 

predictable attendance, the Employer should 

be allowed to accommodate that employee by 

permanently transferring him/her to an 

alternative position or, if no alternative is 

available, to separate the employee from the 

position that requires regular and predictable 

attendance, even if the employee has not 

exhausted the 12 weeks of FMLA leave. 

Betsy Sawyers, Director, Human 

Resources Department, Pierce County, 

Washington, Doc. FL97, at 4. The 

Fairfax County Public Schools echoed 

this theme: ‘‘[I]t would be helpful if the 

regulations would allow the employer to 

reassign the employee after a specified 

period of unscheduled intermittent 

leave, such as two or three months. 

Reassignment could be conditioned on 

the employer’s determination that 

unscheduled leave could not be 

continued without jeopardizing the 

essential functions of the job. After 

making such a determination, the 

employer could reassign the employee 

to a position that better accommodated 

intermittent attendance.’’ Doc. 10134A, 

at 3. In a different but related context, 

Ford & Harrison made the same 

suggestion: ‘‘[An] employee works in [a] 

position at the * * * factory. The 

employee sees a posting for an opening 

for the assembly line position for which 

good attendance is essential and 

requests a promotion or transfer to that 

position. If the employee is otherwise 

qualified for the position, but for the 

employee’s attendance issues due to the 

intermittent FMLA leave, the 

regulations should be clarified to ensure 

that the employer be allowed to deny 

the promotion/transfer without risking a 

claim of FMLA retaliation or 

interference with the employee’s FMLA 

rights on the grounds that the 

employee’s current position better 

accommodates an unforeseeable 

intermittent leave schedule.’’ Ford & 

Harrison LLP, Doc. 10226A, at 6. 

The Southern Company noted that 

permitting transfers of employees who 

need unforeseeable leave would be 

consistent with the spirit of the FMLA, 

given the pay and benefits safeguards 

built into the transfer provision. ‘‘All 

the safeguards that currently exist in 

Section 825.204 (i.e., equivalent pay and 

benefits, transfer may not work a 

hardship on employee, and restoration 

rights at the end of the necessity of the 

leave) would be applicable to ensure 

that the employee’s rights to take FMLA 

leave will not be deterred in any way. 

Accordingly, modifying Section 825.204 

to encompass intermittent unscheduled 

leave would be consistent with the 

FMLA’s stated purpose ‘‘to entitle 

employees to take reasonable leaves for 

medical reasons * * * in a manner 

that accommodates the legitimate 

interests of employers.’’ The Southern 

Company, Doc. 10293A, at 3. Edison 

Electric agreed that this was a 

reasonable solution under the Act: 

‘‘Such a modification [to the regulations 

for unscheduled intermittent leave] 

would allow an employer to determine 

how to best accommodate the 

employee’s periodic and unforeseen 

absences to minimize the disruption in 

the workplace and perhaps avoid a 

safety risk to others, while at the same 

time allowing the employee to perform 

the essential functions of the position to 

the best of his or her ability.’’ Doc. 

10128A, at 7. But see Brian T. 

Farrington, Esq., Doc. 5196, at 1 (‘‘Th[e] 

[intermittent absence] problem is 

particularly acute when the employee 

performs an important or unique 

function, and repeated absences can put 

the employer in a very difficult 

situation. In such a case, transferring the 

employee to another position * * *

doesn’t solve the problem. The 

employee is needed in his/her principal 

position, not some alternative job.’’). 

On the other hand, some commenters 

pointed out the potential downside of 

permitting employers to unilaterally 

modify jobs. ‘‘Allowing employers to 

modify employee’s job duties to 

temporarily meet limitations may be 

acceptable until the employee recovers 

fully. However, the potential for 

employer’s modification being sub-par, 

demoralizing and unfair is very, very 

high.’’ An Employee Comment, Doc. 

10336A at 26. The AFL–CIO, moreover, 

encouraged employers to use the tools 

they currently have to reach a mutually 

agreeable solution: ‘‘We encourage 

employers to consider whether job 

modifications will permit employees to 

remain at the workplace under mutually 

agreeable arrangements.’’ Doc. R329A, at 

36. 

IX. Substitution of Paid Leave 

The Department requested input on 

three issues related to the substitution of 

paid leave provisions: (1) The impact of 

the prohibition under section 825.207 

on ‘‘applying [employers’] normal leave 

policies to employees substituting paid 

vacation and personal leave for unpaid 

FMLA leave[;]’’ (2) how the ‘‘existence 

of paid leave policies affect[s] the nature 

and type of FMLA leave used[;]’’ and (3) 

whether ‘‘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[.]’’

Section 102(c) of the Act provides that 

FMLA leave is, as a general rule, unpaid 

leave. Section 102(d) addresses 

circumstances in which an employee 

may substitute (i.e., use concurrently) 

accrued paid leave for the unpaid FMLA 

leave period. See 29 U.S.C. 2612(d); 29 

CFR 825.207(a). Under this section of 

the FMLA, an ‘‘employee may elect, or 

an employer may require, the employee 

to substitute’’ accrued paid leave for the 

employee’s FMLA leave. See 29 U.S.C. 

2612(d)(2); 29 CFR 825.207(a). That is, 

the law provides employees the option 

to take their accrued paid leave 

concurrently with their FMLA leave in 

order to mitigate their wage loss. If an 

employee elects not to substitute 

accrued paid leave, however, the 

employer has the right to require such 

substitution. Where either the employee 

or the employer elects to substitute 

accrued paid leave, the employee will 

be entitled to FMLA protection during 

the period in which paid leave is 

substituted. 

The underlying reason for an FMLA 

request determines the types of 

available accrued paid leave that may be 

substituted. If the requested FMLA leave 


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21 ‘‘Compensatory time off’’ is paid time off 

accrued by public sector employees in lieu of 

‘‘immediate cash payment’’ for working in excess of 

the applicable maximum hours standard of the 

FLSA. 29 CFR 553.22(a). Compensatory time must 

be earned at a rate of not less than ‘‘one and onehalf hours for each hour of employment for which 

overtime compensation is required by section 7 of 

the FLSA.’’ 29 CFR 553.22(b). Police, firefighters, 

emergency response personnel, and employees 

engaged in seasonal activities may accrue up to 480 

hours of compensatory time, while other public 

sector employees may accrue up to 240 hours. See 

29 CFR 553.24. 

is for the birth of a child, placement of 

a child for adoption or foster care, or to 

care for a spouse, child or parent who 

has a serious health condition, 

employees may choose to—or be 

required by their employers to—

substitute any accrued vacation, 

personal (including leave available 

leave under a ‘‘paid time off’’ plan) or 

family leave (subject to limitations). See 

29 U.S.C. 2612(d)(2)(A)-(B); 29 CFR 

825.207(b), (e). 

When employees seek FMLA leave to 

care for their own or a qualifying family 

member’s ‘‘serious health condition,’’

accrued paid medical, sick, vacation or 

personal leave may be substituted. See 

29 U.S.C. 2612(d)(2)(B); 29 CFR 

825.207(c). The substitution of accrued 

medical/sick leave for FMLA leave is 

limited to circumstances that meet the 

requirements of the employers’ existing 

medical/sick leave policies. See 29 

U.S.C. 2612(d)(2)(B); 29 CFR 825.207(c). 

Employers are not required to ‘‘provide 

paid sick leave or paid medical leave in 

any situation in which such employer 

would not normally provide any such 

paid leave.’’ 29 U.S.C. 2612(d)(2)(B). 

Essentially, employers may maintain 

medical/sick leave policies distinct and 

separate from FMLA leave, and will not 

be required to provide paid leave where 

the reason for the leave is not covered 

by their policy (e.g., if the employer’s 

plan allows the use of sick leave only 

for the employee’s own condition, the 

employer is not required to allow an 

employee taking FMLA leave to care for 

a child to use sick leave). As the 

regulations state, ‘‘an employee does not 

have a right to substitute paid medical/ 

sick leave for a serious health condition 

which is not covered by the employer’s 

leave plan.’’ See 29 CFR 825.207(c). 

The regulations specifically prohibit 

employers from placing any restrictions 

or limitations on employees’ accrued 

vacation or personal leave, however, or 

any leave earned or accrued under 

‘‘paid time off’’ plans. See 29 CFR 

825.207(e). Additionally, the regulations 

provide that, if neither the employee nor 

the employer chooses to substitute paid 

leave, the employee ‘‘will remain 

entitled to all paid leave’’ previously 

accrued or earned. See 29 CFR 

825.207(f). 

The regulations also address how 

FMLA entitlements are applied when 

employees qualify for both FMLA leave 

and payments under a non-accrued paid 

benefit plan, such as leave provided 

under a temporary disability or workers’

compensation plan. See 29 CFR 

825.207(d). Specifically, the regulations 

provide that when employees are on 

leave under a short-term disability or 

workers’ compensation plan, the choice 

to substitute paid leave for unpaid 

FMLA leave is inapplicable, because 

such benefit plans already provide 

compensation and the leave therefore 

‘‘is not unpaid.’’ See 29 CFR 

825.207(d)(1)–(2). To the degree that the 

underlying condition for which the 

employee is receiving workers’

compensation or short-term disability 

pay also qualifies as a serious health 

condition under the FMLA, an employer 

may designate FMLA leave to run 

concurrently with the employee’s 

workers’ compensation or disability 

leave. See id.; see also Repa v. Roadway 

Express, Inc., 477 F.3d 938, 941 (7th Cir. 

2007) (‘‘Because the leave pursuant to a 

temporary disability benefit plan is not 

unpaid, the provision for substitution of 

paid leave is inapplicable. However, the 

employer may designate the leave as 

FMLA leave and count the leave as 

running concurrently for purposes of 

both the benefit plan and the FMLA 

leave entitlement.’’). If the requirements 

to qualify for disability plan payments 

are more stringent than those of the 

FMLA, the employee may either satisfy 

the more stringent plan standards or 

instead choose not to receive disability 

plan payments and use unpaid FMLA 

leave or substitute available accrued 

paid leave. See 29 CFR 825.207(d)(1). 

Under section 825.207(h), if the 

employer’s notice or certification 

procedural standards for taking paid 

leave are less stringent than the general 

FMLA requirements and such paid 

leave is substituted for the FMLA leave, 

the employee may be required to meet 

only the less stringent requirements. 

However, if ‘‘accrued paid vacation or 

personal leave is substituted for unpaid 

FMLA leave for a serious health 

condition, an employee may be required 

to comply with any less stringent 

medical certification requirements of 

the employer’s sick leave program.’’ 29 

CFR 825.207(h). Further, where 

employees comply with the applicable 

less stringent requirements, employers 

may not deny or limit FMLA leave. Id. 

Nevertheless, as the preamble to the 

1995 Final Rule noted, employers may 

revise any such less stringent notice or 

certification requirements so that their 

paid leave programs correspond to the 

FMLA requirements, or may treat paid 

and unpaid leave differently. See 60 FR 

2180, 2206, Jan. 6, 1995. Comments 

regarding the effects of these regulatory 

provisions on employers’ paid leave 

policies are also discussed in Chapter 

IX.B.1. 

Lastly, the regulations provide that 

compensatory time off, available to state 

and local government employees under 

section 7(o) of the Fair Labor Standards 

Act (‘‘FLSA’’), is not considered a ‘‘form 

of accrued paid leave.’’ See 29 CFR 

825.207(i). Employees may request to 

take accrued compensatory time in lieu 

of FMLA leave, but employers may not 

require its substitution.21 If 

compensatory time is used in lieu of 

FMLA leave, employers may not count 

it against employees’ FMLA entitlement. 

Id. 

In response to the RFI, the 

Department received many comments 

related to the general impact of the 

substitution of paid leave provisions. 

The RFI also generated comments on 

how these provisions interact with 

employer policies regarding paid leave 

and other workplace benefits, such as 

temporary or short-term disability leave, 

leave under workers’ compensation 

plans, and collectively bargained leave 

benefits. Some commenters also 

addressed the impact of the substitution 

of leave provisions on the requirements 

of certain other state and federal laws. 

A. General Impact of the Substitution of 

Paid Leave Provisions 

Several employee advocacy groups 

noted that the ability to substitute paid 

leave for an otherwise unpaid FMLA 

leave period is a critical factor in 

employees being able to utilize FMLA 

leave. According to these commenters, 

the substitution of paid leave provisions 

are ‘‘essential to workers’ ability to 

exercise their rights under the law. Few 

workers can afford to take extended 

periods of leave without pay.’’ See 

Faculty & Staff Federation of 

Community College of Philadelphia, 

Local 2026 of the American Federation 

of Teachers, Doc. 10242A, at 4. See also 

Center for Law and Social Policy, Doc. 

10053A, at 3 (same); Service Employees 

International Union, Local 668 

Pennsylvania Social Services Union, 

Doc. FL105, at 3 (‘‘Permitting workers to 

use their accrued paid leave as wage 

replacement * * * makes it possible for 

them to take time off to address critical 

family and medical issues.’’). 

The AFL–CIO also noted that the lack 

of paid leave ‘‘presents a significant 

obstacle for those who cannot afford to 

take FMLA leave,’’ as shown by the 

2000 Westat Report, which found that 


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the most commonly noted reason for not 

taking leave was inability to afford it. 

Doc. R329A, at 28–29. The Coalition of 

Labor Union Women similarly noted 

that ‘‘a disturbing number of workers 

are unable to take advantage of FMLA 

leave because it is not paid and they 

cannot afford to lose time away from 

paying jobs.’’ Doc. R352A, at 4. 

Allowing the substitution of paid leave 

has ‘‘helped many employees cope with 

personal and family health 

emergencies,’’ without which they 

‘‘would have faced a terrible choice 

between their health needs and their job 

security,’’ while allowing such 

flexibility ‘‘promotes worker morale and 

productivity.’’ Id. See also International 

Association of Machinists and 

Aerospace Workers, Doc. 10269A, at 2; 

9to5, National Association of Working 

Women, Doc. 10210A at 3; National 

Partnership for Women & Families, Doc. 

10204A, at 9–10; Families USA, Doc. 

10327A, at 3–4. Moreover, the Coalition 

of Labor Union Women made the point 

that, because paid leave is available 

only when already provided by 

employers, the employers have already 

determined that such paid leave ‘‘will 

not have an adverse impact on their 

business * * * and does not create 

undue hardships for the employer.’’ See 

Doc. R352A, at 4. 

The National Business Group on 

Health similarly stated that allowing 

paid leave and FMLA leave to run 

simultaneously both ‘‘protects 

employees’ incomes during periods of 

serious illness and maximizes the 

flexibility in the design of employer 

leave policies.’’ Doc. 10268A, at 7. The 

Maine Department of Labor asserted that 

allowing substitution helps everyone: 

employees living paycheck-to-paycheck, 

who ‘‘cannot afford to take unpaid leave 

without risking the loss of housing, 

heat, food[;]’’ employers, who would 

suffer lost productivity if employees 

continued to work while ill; the public 

sector, because employees otherwise 

would have ‘‘to rely more and more on 

public resources to cope[;]’’ and the 

health care system, because employees 

otherwise would work until their 

condition became worse and more 

expensive to treat. Doc. 10215A, at 3. 

Not all commenters uniformly 

supported the substitution of paid leave, 

however. Some employers commented 

that the substitution of leave provisions 

contribute to increased FMLA leave at 

otherwise popular vacation or personal 

leave times. Another commenter noted 

that it is not just holidays or high 

demand periods but that the ‘‘employee 

is more likely to use FMLA leave for the 

employee’s own serious health 

condition when the employee is 

receiving a paid sick or disability 

benefit * * * without a financial 

impact, some employees have little to 

no incentive to work and actually have 

an incentive not to work, since the 

employer cannot discipline them for 

using job protected FMLA leave[.]’’

Exelon, Doc. 10146A, at 6. The 

substitution provisions can thus leave 

an employer in a quandary: ‘‘While 

some may think the solution is to 

reduce or eliminate paid sick or 

disability benefits or to make the 

standards for receiving such benefits 

more stringent to avoid FMLA leave 

abuse, doing so penalizes the vast 

majority of employees who use sick 

days or disability benefits only when 

they are truly unable to work due to 

illness or injury.’’ Id. 

As noted in other chapters of this 

Report, many commenters discussed the 

idea that the different treatment 

experienced by employees based on the 

type of leave requested may have a 

substantial effect on employee morale 

and productivity. A comment from the 

Indiana State Personnel Department 

noted that problems arise when 

employers require substitution of paid 

leave for FMLA leave. See Doc. 10244C, 

at 2 (employees who saved and 

maintained leave balances become 

angry when forced to use accrued leave 

as employees ‘‘feel they are being 

penalized for working overtime without 

taking leave’’). While not directly 

addressing morale concerns, the Ohio 

Department of Administrative Services 

noted in a similar vein that some state 

agencies reported that employees take 

advantage of FMLA leave only when 

they had exhausted all of their accrued 

paid leave and were in jeopardy of 

disciplinary action. See Doc. 10205A, at 

3. Thus, according to the comment, 

FMLA was used as a last resort when 

employees no longer had paid time off. 

In response to the problem, the Ohio 

Department of Administrative Services 

adjusted its leave policies to allow 

individual state agencies to require 

substitution of paid leave. Id. 

B. Effect on Workplace Benefits and 

Policies 

Responses to the RFI indicated a 

variety of workplace benefits are 

affected by substitution of paid leave. 

Employers’ policies pertaining to 

employer-provided paid leave plans are 

impacted, as are benefit plans such as 

workers’ compensation and short term 

disability, as well as existing collective 

bargaining agreements. Some 

government employers also commented 

on the impact of the inability to 

substitute compensatory time off for 

FMLA leave. 

1. Effect on Employer Policies 

Many employers commented that the 

regulations force employers to treat 

employees seeking to use accrued paid 

leave concurrently with FMLA leave 

more favorably than those who use their 

accrued paid leave for other reasons. 

The Madison Gas and Electric 

Company, for example, stated that 

‘‘during ‘peak’ or ‘high demand’

vacation periods, employees may 

request FMLA leave causing the 

employer to deny other employees their 

scheduled leaves due to staffing level 

concerns based on business needs.’’

Madison Gas and Electric Company, 

Doc. 10288A, at 1. The United Parcel 

Service concurred: ‘‘The applicable DOL 

regulation * * * states that no 

limitation may be placed by the 

employer on substitution of paid 

vacation or personal leave for FMLA 

leave * * *. Indeed, as written, this 

regulation would even trump vacation 

picks conducted according to 

collectively bargained seniority 

provisions; an employee with little 

seniority could, if on FMLA leave 

during a ‘plum’ vacation week, 

substitute otherwise unavailable paid 

vacation time for his or her unpaid 

FMLA leave.’’ Doc. 10276A, at 3–4 

(citation and quotation marks omitted). 

Some employers provided specific 

examples of this phenomenon: 

Deer hunting, if you happen to work for 

someone, usually calls for the individual to 

request and receive approval to use vacation 

and or personal leaves of absences during the 

Deer Hunting season. These requests escalate 

geometrically during the deer hunting 

season. Usually approvals for these days off 

are made using some kind of seniority 

provisions. Employees who can not get 

approval can circumvent the ‘‘written in 

cement’’ policies by securing a Family doctor 

to provide FMLA documentation for [a 

serious health condition]. 

Roger Bong, Doc. 6A, at 3. Another 

employer stated, ‘‘We have had an 

employee request a week of vacation 

during the holidays and the request was 

denied because we had so many other 

employees off. Then the employee just 

called off for the entire week using 

FMLA, and then went on her vacation 

to Florida.’’ Vicki Spaulding, Akers 

Packaging Service, Inc., Doc. 5121, at 1. 

See also National Coalition to Protect 

Family Leave, Doc. 10172A, at 5 (‘‘The 

Department has * * * established 

preferential rights to employees taking 

FMLA leave by effectively mandating 

that employers waive normal vacation 

and personal leave policies. In fact, 

nothing in the Act requires preferential 

treatment for FMLA leave users.’’); 

Temple University, Doc. 10084A, at 5. 


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As previously noted, section 

825.207(e) provides that accrued paid 

vacation or personal leave may be 

substituted for any FMLA leave, and an 

employer may not place any limitations 

on this substitution right. The preamble 

to the 1995 Final Rule stated, for 

example, that an employer could not 

limit the timing during the year in 

which paid vacation leave could be 

substituted, or require an employee to 

use such leave in full day increments or 

a week at a time, even if it normally 

restricted paid vacation in such ways. 

See 60 FR 2180, 2205, Jan. 6, 1995. 

Opinion letters relating to the 

substitution of paid vacation or personal 

leave have clarified that such leave is 

‘‘accrued’’ and thus available for 

substitution only when the employee 

has earned it and is fully vested in the 

right to use it during the leave period. 

See Wage and Hour Opinion Letters 

FMLA–81 (June 18, 1996); FMLA–75 

(Nov. 14, 1995); and FMLA–61 (May 12, 

1995). In contrast to vacation leave, the 

regulations clarify that substitution of 

paid sick or medical leave is authorized 

only ‘‘to the extent the circumstances 

meet the usual requirements for the use 

of sick/medical leave.’’ 29 CFR 

825.207(c). 

The College and University 

Professional Association of Human 

Resources suggested employers should 

be allowed to apply their normal leave 

policies to all types of paid leave, 

including vacation and personal leave, 

in order to ease administrative and 

paperwork burdens and to eliminate the 

preferential treatment it believes is 

afforded to employees seeking FMLA 

leave over employees requesting 

vacation or personal leave. Doc. 

10238A, at 6. See also Ohio Public 

Employer Labor Relations Association, 

Doc. FL93, at 5; Temple University, Doc. 

10084A, at 5. 

The National Retail Federation 

suggested clarifying the meaning of 

‘‘personal leave’’ under section 825.207. 

Doc. 10186A, at 8. The Miami Valley 

Human Resource Association requested 

clearer guidelines that instruct 

employers as to when they are allowed 

to deny employees’ substitution of paid 

leave, if they fail to follow employers’

leave notification policies. Doc. 10156A, 

at 4. 

The National Coalition to Protect 

Family Leave commented that many 

employers are providing general paid 

time off (‘‘PTO’’) benefits to 

employees—which are provided in a 

single amount of paid leave to be used 

for any reason—instead of the more 

traditional paid leave policies for 

vacation and medical/sick leave. See 

Doc. 10172A, at 23. The comment noted 

that the regulations still speak in terms 

of paid personal or vacation leave, thus 

prohibiting employers from applying 

‘‘their normal leave rules to the 

substitution of such leave for unpaid 

FMLA leave, even when using PTO in 

connection with an illness.’’ Id. PTO 

plans generally allow for employees to 

take paid leave for any reason, as long 

as company procedures are satisfied. 

A law firm commented that 

‘‘substitution of paid leave should not 

nullify an employer’s right to require 

medical certification’’ where the 

employer maintains a PTO plan. Fisher 

& Phillips LLP, Doc. 10262A, at 6. 

Section 825.207(h) states that if 

‘‘accrued paid vacation or personal 

leave is substituted for unpaid FMLA 

leave for a serious health condition, an 

employee may be required to comply 

with any less stringent medical 

certification requirements of the 

employer’s sick leave program.’’ 29 CFR 

825.207(h). PTO plans, however, do not 

distinguish between sick pay and 

vacation pay and generally have no 

‘‘sick leave’’ medical documentation 

requirement. Thus, according to Fisher 

& Phillips, an employer should not be 

prohibited from requiring a medical 

certification form to determine whether 

the leave qualifies as FMLA leave 

‘‘simply because its paid time off 

program does not require it.’’ Id. The 

firm further stated: 

Essentially, employers with more generous 

leave programs are often disadvantaged by 

that generosity, as their employees are more 

likely to use leave if it is paid. Again, that 

generosity should not impose an obstacle to 

employer efforts to determine whether the 

absence qualifies for FMLA to begin with, or 

to enforce its paid time off programs 

consistently. 

Id. at 7. The National Coalition to 

Protect Family Leave agreed that 

employers with generous PTO plans are 

restricted by the regulations and 

suggested such treatment could result in 

employers reducing paid leave. See Doc. 

10172A, at 23. 

A comment from a law firm stated 

that, in terms of tracking FMLA leave, 

a double standard exists under the 

regulations. Spencer Fane Britt & 

Browne LLP, Doc. 10133C, at 50. Many 

employers allow employees to take nonFMLA leave only in increments that are 

longer than the time periods used for 

pay purposes. Id. The firm expressed a 

concern, however, that such a policy 

may constitute ‘‘retaliation’’ under the 

FMLA regulations, even though it is 

allowable for non-FMLA leave. For 

example, an employer may normally 

only allow employees to use paid leave 

in four-hour increments, but if the 

employee is only away from work for 

1.5 hours for an FMLA reason, there is 

a question as to how much time the 

employer may charge against the 

employee’s paid leave balance. Id. The 

comment concludes, ‘‘[i]t is inherently 

unfair to provide employees with FMLA 

absences with greater benefits than they 

would otherwise have.’’ Id. 

On the other hand, the AFL–CIO 

commented that Congress placed no 

limitations on an employee’s right to 

substitute paid vacation or personal 

leave, noting that ‘‘the Department 

specifically rejected proposals to limit 

employees’ substitution rights’’ when 

promulgating the FMLA final rules, 

based on the statutory language. See 

American Federation of Labor and 

Congress of Industrial Organizations, 

Doc. R329A, at 27–28. The AFL–CIO 

also noted that the prohibition on 

employer limitations applies only to 

vacation and personal leave, and that 

employers remain free to apply their 

normal rules to the substitution of paid 

sick leave. 

2. Benefit Plans: Short-Term Disability 

and Workers’ Compensation 

As indicated above, the choice to 

substitute accrued paid leave is 

inapplicable when employees receive 

payments from a benefit plan that 

replaces all or part of employees’

income. See 29 CFR 825.207(d). As the 

preamble to the 1995 Final Rule 

explained, if an employee suffers a 

work-related injury or illness, the 

employee may receive workers’

compensation benefits or paid leave 

from the employer, but not both. 60 FR 

2180, 2205, Jan. 6, 1995. Thus, when 

such an injury or illness also qualifies 

under the FMLA and the employee is 

receiving workers’ compensation 

benefits, the employer may not require 

the employee to substitute paid vacation 

or sick leave, nor may the employee 

elect to receive both payments. See id. 

However, the time the employee is 

absent from work counts against the 

employee’s FMLA entitlement. See 60 

FR at 2205–06. See also Wage and Hour 

Opinion Letter FMLA2002–3 (July 19, 

2002) (allowing FMLA leave to run 

concurrently with workers’

compensation is expressly allowed 

under the regulations, but receipt of 

workers’ compensation payments 

prohibits the substitution of other 

accrued paid leave). 

One Employee Relations Manager 

noted a similar rule applicable under 

some employers’ disability leave 

policies, pursuant to which ‘‘the 

employees’ use of vacation and other 

earned time with pay to cover a 

personal illness may exclude them from 

qualifying for paid short-term disability 


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22See also Jeanne M. Vonhof & Martin H. Malin, 

What a Mess! The FMLA, Collective Bargaining and 

Attendance Control Plans, 21 Ill. Pub. Employee 

Relations Rep. 1 (Fall 2004) (discussing FMLA and 

collective bargaining agreements from perspective 

of labor arbitrators, noting that regulations allow 

parties to bargain for specific rights, especially 

option to manage when substitution of paid leave 

is permitted). 

benefits offered by the employer.’’

Cindy S. Jackson, Employee Relations/ 

Labor Relations Manager, Cingular, Doc. 

5480, at 1. A case manager from St. 

Elizabeth Medical Center, in Edgewood, 

Kentucky, indicated employees who 

take FMLA leave for their own serious 

health condition often qualify for short 

term disability payments after using a 

required amount of paid time off. See 

Doc. 10071A, at 3–4. Another employer 

from Huntington, Indiana said many of 

its employees on FMLA leave 

eventually qualify for short term 

disability, resulting in payments during 

leave. Bendix Commercial Vehicle 

Systems LLC, Doc. 10079A, at 3. 

According to this commenter, ‘‘if FMLA 

were required to be paid by the 

employer, you would see a lot more use 

of the intermittent, specifically abuse of 

FMLA.’’ Id. An HR manager agreed, 

commenting that an employee who took 

FMLA leave concurrently with shortterm disability leave ‘‘allegedly for a 

painful and permanent spinal condition, 

is now heading up the company 

baseball team.’’ See Debra Hughes, HR 

Manager, Doc. 2627A, at 2; see also 

Roger Bong, Doc. 6A, at 3. 

Another commenter felt that the 

regulations ‘‘created a substantial, 

unintended burden by prohibiting the 

substitution of accrued, paid leave’’

during an FMLA leave period that ran 

concurrently with paid leave taken 

under a workers’ compensation or a 

state-mandated disability plan. See 

Employers Association of New Jersey, 

Doc. 10119A, at 3. This commenter also 

suggested that employers requiring 

substitution of paid leave could run 

afoul of the regulations when employees 

qualify under a state’s mandatory, nonoccupational, temporary disability plan; 

it also pointed out that many employees 

actively seek the substitution of their 

accrued paid leave because temporary 

disability plans only pay a portion of 

their salary. Id at 4. 

The United Steelworkers also 

commented on the relationship between 

short-term or other disability leave and 

leave under the FMLA, stating that some 

employers may incorrectly ‘‘tell their 

employees they cannot receive income 

replacement under the [short term 

disability] plan and be on FMLAprotected leave at the same time’’ and 

thus incorrectly advise employees that 

they waive their FMLA protections by 

going on paid disability leave. See Doc. 

10237A, at 3. To avoid this confusion, 

the United Steel Workers recommended 

that the Department ‘‘use the 

rulemaking process to clarify that 

employers must treat family/medical 

leave and short-term disability as 

separate and independent sources of 

protection.’’ Id. 

Some comments also found 

difficulties in the way substitution of 

paid leave provisions are carried out by 

employers or objected to substitution 

more generally. The United 

Transportation Union, Florida State 

Legislative Board commented that the 

problem with the substitution of paid 

leave is that employers can force 

employees to use their hard-earned 

vacation and personal leave. See Doc. 

10022A, at 2. The commenter labeled it 

an ‘‘unfair and burdensome practice.’’

Id. 

3. Collective Bargaining Agreements 

The substitution of paid leave 

provisions also interact with existing 

collective bargaining agreements 

(‘‘CBAs’’). One union commented that 

employers attempt to circumvent 

collective bargaining agreements by 

relying on their statutory right to 

substitute paid leave, while ignoring 

their contractual obligations. See United 

Transportation Union, Florida State 

Legislative Board, Doc. 10022A, at 2. A 

law firm representing several train and 

rail unions also noted such a trend: 

‘‘Notwithstanding the CBAs’

unequivocal mandate that employees 

are entitled to use their paid leave at the 

time they choose and not at a time 

chosen by the carriers, the carriers in 

2004 began to, and now routinely, 

require employees to use their paid 

leave whenever they exercise their 

statutory right to FMLA leave—thus 

usurping the employees’ collectivelybargained right to choose when and for 

what purpose to use paid leave.’’

Zwerdling, Paul, Kahn & Wolly, P.C., 

Doc. 10163A, at 2. The comment 

concluded that ‘‘the statute may not be 

used as a tool to avoid compliance’’

with the parties’ prior agreements. Id. 

Another commenter raised the same 

issue, noting that this dispute has arisen 

in the railroad context where several 

railroad employers have claimed that 

FMLA gives them the authority to 

diminish the rights afforded to 

employees under their existing contracts 

to decide when and in what manner to 

use their paid leave. See Guerrieri, 

Edmond, Clayman & Bartos, P.C. (on 

behalf of several labor unions in the 

railroad, airline, bus, and other 

industries), Doc. 10235A, at 2.22 This 

commenter also noted that the 

Department considered and addressed 

the issue of collective bargaining 

agreements in the preamble to the 1995 

regulations: ‘‘At the same time, in the 

absence of other limiting factors (such 

as a State law or applicable collective 

bargaining agreement), where an 

employee does not elect substitution of 

appropriate paid leave, the employee 

must nevertheless accept the employer’s 

decision to require it.’’ Id. at 3 (citation 

omitted). 

This law firm also noted that a 1994 

Wage and Hour opinion letter further 

clarifies ‘‘that a collective bargaining 

agreement [can] limit an employer’s 

ability to require use of paid leave in 

conjunction with FMLA leave.’’ Id. at 3. 

See Wage and Hour Opinion Letter 

FMLA–33 (March 29, 1994) (‘‘With 

reference to your constituent’s concerns 

pertaining to paid vacation and sick 

leave, an employer may require an 

eligible employee to use all accrued 

paid vacation or sick leave for the 

family and medical leave purposes 

indicated above before making unpaid 

leave available. However, section 402 of 

FMLA does not preclude the union’s 

right to collectively bargain greater 

benefits than those provided under the 

Act. In this instant case, the subject 

union could negotiate that substitution 

of accrued paid leave is an election of 

the employee only.’’). 

Further, the commenter referred to the 

ongoing litigation on this issue and 

urged that any regulatory action taken 

by the Department be consistent with 

this position. Guerrieri, Edmond, 

Clayman & Bartos, P.C. (on behalf of 

several labor unions in the railroad, 

airline, bus, and other industries), Doc. 

10235A, at 3–4. See Bhd of Maintenance 

of Way Employees v. CSX Transp., Inc., 

478 F.3d 814 (7th Cir. 2007). In CSX, a 

group of rail carriers required 

employees to substitute accrued paid 

leave for family or medical leave 

covered by the FMLA, relying upon 

their FMLA right to do so. The carriers 

required substitution for intermittent 

leave for the employee’s own condition, 

but they did not require substitution 

when an employee used a block of 

FMLA leave for his or her own serious 

health condition. The plaintiffs, a 

collection of rail unions, challenged the 

action on the grounds that an existing 

CBA precluded involuntary substitution 

of paid leave. They claimed that when 

a CBA gives employees greater rights 

than the FMLA, the Act does not 

supersede such contractual rights. The 

court held that while employers 

generally are permitted to require 

substitution of paid leave, the FMLA 

does not authorize rail carriers that are 


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subject to the Railway Labor Act (RLA) 

to do so when that would violate a CBA 

and the RLA’s prohibition against 

making unilateral changes in working 

conditions. 

The AFL–CIO—in addition to 

adopting the comments of other unions 

on this issue—asserted that employers 

cannot require employees to substitute 

paid leave for FMLA leave in a manner 

that contravenes existing CBAs, whether 

those agreements are subject to the RLA 

or the National Labor Relations Act. See 

Doc. R329A, at 29. The AFL–CIO stated 

that ‘‘the Department should make no 

changes in its regulations governing 

substitution of paid leave for FMLA 

leave in the collective-bargaining 

context.’’ Id. 

On the other hand, the Union Pacific 

Railroad Company noted that its Train 

and Engine Service employees have an 

FMLA leave rate that is five times 

higher than its other employees. See 

Doc. 10148A, at 2–3. The employer 

stated that there is no obvious reason for 

this disparity, such as a higher injury 

rate. ‘‘The only significant differences 

between the Train and Engine Service 

employee populations and all others 

are: 1) The schedules or lack thereof 

(most T&E employees have no set 

schedule but rather work on call * * *); 

and 2) Union Pacific does not require 

T&E employees to substitute paid leave 

for FMLA absences of less than 12 hours 

because paid leave cannot be granted to 

these employees in smaller increments 

under their collective bargaining 

agreements.’’ Id. at 2. Union Pacific 

explained, for example, that when a 

T&E employee who is called to duty 

states that s/he has a migraine and 

cannot report for two hours, no paid 

leave is substituted. Employees working 

under other collective bargaining 

agreements where Union Pacific can 

require substitution for less than full 

day increments are more reluctant to 

use FMLA leave unless absolutely 

necessary, because they do not want to 

decrease their accrued paid leave. See 

id. Three years of employer-collected 

data show that a ‘‘disproportionately 

high number of FMLA absences among 

Train and Engine Service employees are 

in increments of less than 12 hours.’’ Id. 

4. Compensatory Time Off 

As noted above, subject to the 

provisions of section 7(o) of the FLSA, 

state and local government employers 

may provide employees with 

compensatory time off at time and one 

half for each hour worked in lieu of 

paying cash for overtime. The FMLA 

regulations at 29 CFR 825.207(i) 

specifically prohibit employers from 

counting compensatory time off against 

an employee’s FMLA entitlement. 

One commenter noted the 

inconsistency in the regulations 

regarding the use of compensatory time 

off, stating ‘‘[w]hile an employer cannot 

compel the use of compensatory time, if 

an employee asks to use it to cover a 

FMLA absence, the time off should 

count against the FMLA entitlement. If 

compensatory time is allowed to be 

taken in lieu of FMLA leave, the 

regulations should require employees to 

take the compensatory time at either the 

beginning or end of the leave.’’ City of 

Portland, Doc. 10161A, at 4. See also 

Washington Metropolitan Area Transit 

Authority, Doc. 10147A, at 3 (regulation 

‘‘discourages employers from working 

with employees to minimize the 

negative financial impact of unpaid 

leave at times when employees are most 

in need’’). 

X. Joint Employment 

A. Statutory Background 

The FMLA covers an employer in the 

private sector engaged in commerce or 

in an industry or activity affecting 

commerce if it employs 50 or more 

employees for each working day in 20 

or more calendar workweeks in the 

current or preceding calendar year. See 

29 U.S.C. 2611(4). An employee of an 

FMLA-covered employer is ‘‘eligible’’

for the benefits of the FMLA if the 

employee has worked for the employer 

for at least 12 months, for at least 1,250 

hours of service during the preceding 

12-month period, and is employed at a 

worksite where 50 or more employees 

are employed by the employer within 75 

miles of that worksite. 29 U.S.C. 

2611(2). 

Despite the plain wording of these 

definitions a number of questions have 

arisen as to their meaning, such as how 

to treat employees with no fixed 

worksite, employees who are jointly 

employed by two or more employers, 

employees of temporary help 

companies, and others. The Department 

included the topics of employer 

coverage and employee eligibility in its 

RFI. In particular, the RFI noted that the 

Court of Appeals in Harbert v. 

Healthcare Services Group, Inc., 391 

F.3d 1140 (10th Cir. 2004), partially 

invalidated 29 CFR 825.111(a)(3), which 

states that when an employee is jointly 

employed by two or more employers, 

the employee’s worksite is the primary 

employer’s office from which the 

employee has been assigned or to which 

the employee reports. 

B. Department of Labor Regulations 

Section 825.104(c) of the regulations 

addresses who is the employer where 

more than one entity is involved, such 

as in an ‘‘integrated employer’’

situation. It provides that the 

‘‘determination of whether or not 

separate entities are an integrated 

employer is not determined by the 

application of any single criterion, but 

rather the entire relationship is to be 

reviewed in its totality.’’ 29 CFR 

825.104(c)(2). Factors considered in 

determining whether two or more 

entities are an integrated employer 

include the degree of common 

management, interrelation between 

operations, centralized control of labor 

relations, and common ownership/ 

financial control. 

The Department stated in the 

preamble to the final rule that the 

‘‘integrated employer’’ test is not a new 

concept, but rather it is based on 

established case law arising under Title 

VII of the Civil Rights Act of 1964 and 

the Labor Management Relations Act. 

Section 825.106 of the regulations 

implements how the Department views 

employer coverage and employee 

eligibility in the case of joint 

employment. It provides that where two 

or more businesses exercise some 

control over the work or working 

conditions of the employee, the 

businesses may be joint employers 

under FMLA. For example, where the 

employee performs work which 

simultaneously benefits two or more 

employers, and there is an arrangement 

between employers to share an 

employee’s services or to interchange 

employees, a joint employment 

relationship generally will be 

considered to exist. Id. § 825.106(a). The 

regulations further provide: 

(b) A determination of whether or not a 

joint employment relationship exists is not 

determined by the application of any single 

criterion, but rather the entire relationship is 

to be viewed in its totality. For example, joint 

employment will ordinarily be found to exist 

when a temporary or leasing agency supplies 

employees to a secondary employer. 

(c) In joint employment relationships, only 

the primary employer is responsible for 

giving required notices to its employees, 

providing FMLA leave, and maintenance of 

health benefits. Factors considered in 

determining which is the ‘‘primary’’

employer include authority/ responsibility to 

hire and fire, assign/place the employee, 

make payroll, and provide employment 

benefits. For employees of temporary help or 

leasing agencies, for example, the placement 

agency most commonly would be the 

primary employer. 

Id. § 825.106(b)–(c). Under section 

825.106(d), employees jointly employed 

by two employers must be counted by 


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both employers in determining 

employer coverage and employee 

eligibility. Thus, for example, an 

employer who jointly employs 15 

workers from a leasing or temporary 

help agency and 40 permanent workers 

is covered by FMLA. Although job 

restoration is the primary responsibility 

of the primary employer, the secondary 

employer is responsible for accepting 

the employee returning from FMLA 

leave in place of the replacement 

employee if the secondary employer 

continues to utilize an employee from 

the temporary or leasing agency, and the 

agency chooses to place the employee 

with the secondary employer. A 

secondary employer is also responsible 

for compliance with the prohibited acts 

provisions with respect to its 

temporary/leased employees, and thus 

may not interfere with an employee’s 

attempt to exercise rights under the Act, 

or discharge or discriminate against an 

employee for opposing a practice that is 

unlawful under FMLA. See 29 CFR 

825.106(e). 

With regard to the term ‘‘worksite,’’

the legislative history states that it is to 

be construed in the same manner as the 

term ‘‘single site of employment’’ under 

the Worker Adjustment and Retraining 

Notification (‘‘WARN’’) Act, 29 U.S.C. 

2101(a)(3)(B), and the regulations under 

that Act (20 CFR Part 639). See S. Rep. 

No. 103–3, at 23 (1993), H.R. Rep. No. 

103–8(I), at 35 (1993). Accordingly, the 

FMLA regulations define the term 

‘‘worksite’’ in those cases in which the 

employee does not have a fixed place of 

employment by using language that is 

very similar to the WARN Act definition 

in 20 CFR 639.3(i)(6). Section 825.111 

provides as follows: 

(2) For employees with no fixed worksite, 

e.g., construction workers, transportation 

workers (e.g., truck drivers, seamen, pilots), 

salespersons, etc., the ‘‘worksite’’ is the site 

to which they are assigned as their home 

base, from which their work is assigned, or 

to which they report. For example, if a 

construction company headquartered in New 

Jersey opened a construction site in Ohio, 

and set up a mobile trailer on the 

construction site as the company’s on-site 

office, the construction site in Ohio would be 

the worksite for any employees hired locally 

who report to the mobile trailer/company 

office daily for work assignments, etc. If that 

construction company also sent personnel 

such as job superintendents, foremen, 

engineers, an office manager, etc., from New 

Jersey to the job site in Ohio, those workers 

sent from New Jersey continue to have the 

headquarters in New Jersey as their 

‘‘worksite.’’

29 CFR 825.111(a)(2). 

When applying the employee 

eligibility test (i.e., the 50 employees/75 

miles test) to employees of temporary 

help offices and others who are jointly 

employed by two or more employers, 

however, the regulation provides that 

‘‘the employee’s worksite is the primary 

employer’s office from which the 

employee is assigned or reports.’’ 29 

CFR 825.111(a)(3). 

C. Wage and Hour Opinion Letter 

In Wage and Hour Opinion Letter 

FMLA–111 (Sept. 11, 2000), the 

Department considered the application 

of the FMLA regulations’ ‘‘integrated 

employer’’ test and ‘‘joint employment’’

tests in sections 825.104 and 825.106 to 

a ‘‘Professional Employer Organization’’

(PEO). The PEO in question had 

established a contractual relationship 

with its clients under which it 

established and maintained an employer 

relationship with the workers assigned 

to the clients (who were leased worksite 

employees provided via the contract 

with the client) and assumed substantial 

employer rights, responsibilities and 

risks. Specifically, the PEO assumed 

responsibility for personnel 

management, health benefits, workers’

compensation claims, payroll, payroll 

tax compliance, and unemployment 

insurance claims. Moreover, the PEO 

had the right to hire, fire, assign, and 

direct and control the employees. 

Based on the facts described in the 

incoming letter, the Opinion Letter 

found that ‘‘it appears’’ the PEO is in a 

joint employment relationship with its 

clients for these reasons: 

1. The PEO is a separately owned and a 

distinct entity from the client as it is under 

contract with the client to lease employees 

for the purpose of handling ‘‘critical human 

resource responsibilities and employer risks 

for the client.’’

2. The PEO is acting directly in the interest 

of the client in assuming human resource 

responsibilities. 

3. The PEO appears to also share control 

of the ‘‘leased’’ employee consistent with the 

client’s responsibility for its product or 

service. 

Based on the specified 

responsibilities, the Opinion Letter 

stated that ‘‘it would appear that’’ the 

PEO is the ‘‘primary’’ employer for 

those employees ‘‘leased’’ under 

contract with the client. Thus, the PEO 

would be responsible for giving required 

notices to its employees, providing 

FMLA leave, maintaining group health 

insurance benefits during the leave, and 

restoring the employee to the same or 

equivalent job upon return from leave. 

The ‘‘secondary employer’’ (i.e., the 

client) would be responsible for 

accepting the employee returning from 

FMLA leave in place of a replacement 

employee if the PEO chooses to place 

the employee with the client. The 

Opinion Letter concluded that the 

client, as the ‘‘secondary’’ employer, 

whether a covered employer or not 

under the FMLA, is prohibited from 

interfering with a ‘‘leased’’ employee’s 

attempt to exercise rights under the Act, 

or discharging or discriminating against 

an employee for opposing a practice that 

is unlawful under the Act. 

D. Harbert v. Healthcare Services Group, 

Inc. 

Section 825.111(a)(3) of the 

regulations provides that for an 

employee jointly employed by two or 

more employers, the ‘‘worksite’’ is the 

location of the primary employer’s 

office from which the employee is 

assigned or reports. In Harbert v. 

Healthcare Services Group, Inc., 391 

F.3d 1140, the Court of Appeals held 

that section 825.111(a)(3), as applied 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 the 

term ‘‘worksite’’ as the place where an 

employee actually works (as opposed to 

the location of the long-term care 

placement agency from which Harbert 

was assigned); (2) contradicted 

Congressional intent 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. 

With respect to the term ‘‘worksite,’’

the court stated that Congress did not 

define the term in the FMLA, and it 

concluded that the common 

understanding of the term ‘‘worksite’’ is 

the site where the employee works. 

With respect to the employee eligibility 

requirement of 50 employees within 75 

miles, the court noted that Congress 

recognized that even potentially large 

employers may have difficulty finding 

temporary replacements for employees 

who work at geographically scattered 

locations. Congress thus determined 

that if any employer (large or small) has 

no significant pool of employees in 

close geographic proximity to cover for 

an absent employee, that employer 

should not be required to provide FMLA 

leave to that employee. Therefore, the 

court concluded that: 

An employer’s ability to replace a 

particular employee during his or her period 

of leave will depend on where that employee 

must perform his or her work. In general, 

therefore, the congressional purpose 

underlying the 50/75 provision is not 

effected if the ‘‘worksite’’ of an employee 


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who has a regular place of work is defined 

as any site other than that place. 

391 F.3d at 1150. 

In comparing how the regulations 

apply the term ‘‘worksite’’ to joint 

employers and sole employers, the court 

stated: 

The challenged regulation also creates an 

arbitrary distinction between sole employers 

and joint employers. For example, if the 

employer is a company that operates a chain 

of convenience stores, the ‘‘worksite’’ of an 

employee hired to work at one of those 

convenience stores is that particular 

convenience store. See 58 FR 31794, 31798 

(1993). If, on the other hand, the employer is 

a placement company that hires certain 

specialized employees to work at 

convenience stores owned by another entity 

(and therefore is considered a joint 

employer), the ‘‘worksite’’ of that same 

employee hired to work at that same 

convenience store is the office of the 

placement company. 

391 F.3d at 1150. 

Importantly, the court did not 

invalidate the regulation with respect to 

employees who work out of their 

homes: ‘‘We do not intend this 

statement to cast doubt on the portion 

of the agency’s regulation defining the 

‘worksite’ of employees whose regular 

workplace is his or her home. See 29 

CFR 825.111(a)(2).’’ 391 F.3d at 1150, 

n.1. Nor did the court invalidate the 

regulatory definition in section 

825.111(a)(3) with respect to employees 

of temporary help companies: ‘‘An 

employee of a temporary help agency 

does not have a permanent, fixed 

worksite. It is therefore appropriate that 

the joint employment provision defines 

the ‘‘worksite’’ of a temporary employee 

as the temporary help office, rather than 

the various changing locations at which 

the temporary employee performs his or 

her work.’’ 391 F.3d at 1153. 

E. RFI Comments and 

Recommendations 

The RFI requested specific 

information, in light of the court’s 

decision in Harbert, on the definition in 

section 825.111 for determining 

employer coverage under the statutory 

requirement that FMLA-covered 

employers must employ 50 employees 

within 75 miles. The Department also 

sought comment on any issues that may 

arise when an employee is jointly 

employed by two or more employers or 

when the employee works from home. 

Below are some of these comments. 

1. ‘‘Worksite’’ for Employees Jointly 

Employed by Two or More Employers 

The AFL–CIO in its comments urged 

the Department not to revise 29 CFR 

§ 825.111 (a)(3) to reflect the court’s 

decision in Harbert that held this 

section to be invalid when applied to a 

jointly-employed employee with a longterm fixed worksite at a facility of the 

secondary employer. See Doc. R329A, at 

18, 21. The AFL–CIO pointed to the 

legislative history that the term 

‘‘worksite’’ is to be construed in the 

same manner as the term ‘‘single site of 

employment’’ under the WARN Act and 

the regulations under that Act. 

Specifically, the AFL–CIO agreed 

with the dissent in Harbert that the 

Secretary’s interpretation of ‘‘single site 

of employment’’ under the WARN Act 

regulations as applying equally to 

employees with and without a fixed 

worksite is a ‘‘permissible and 

reasonable interpretation’’: 

[Interpreting the WARN Act regulation so 

that it] only applies to employees without a 

regularly fixed site of employment would 

seem to contravene the express language of 

the provision which mentions other 

categories, including employees who ‘‘travel 

from point to point, who are outstationed, or 

whose primary duties involve work outside 

any of the employer’s regular employment 

sites.’’

Doc. R329A, at 20 (citations omitted). 

Finally, the AFL–CIO agreed with the 

dissent that the application of the rule 

does not result in arbitrary differences 

between sole and joint employers under 

the FMLA. See id. at 20. Instead, it 

results in a rational distinction, rooted 

in the very purpose of the 50 employees 

within 75 miles rule, where the 

placement agency locates and hires the 

worker for the client agency: 

Basing FMLA eligibility on primary 

employers prevents confusion and provides 

certainty, because a temporary placement 

employee’s coverage could vary daily were 

he placed in different [locations of the client 

employer] on a rotating basis. Further, 

contrary to the court’s assertion, the ability 

of a * * * [client employer] and a placement 

agency to find abundant nearby replacements 

probably is not identical, after all, the 

placement agency specializes in hiring and 

placing employees within the area. 

Doc. R329A, at 20–21 (citation omitted). 

The National Partnership for Women 

& Families similarly commented that it 

believes the current regulations are 

sound and do not require change. 

Specifically, the National Partnership 

stated that the preamble to the FMLA 

regulations makes clear that the 

Department gave much consideration to 

the question of how best to determine 

an employee’s worksite. It noted that the 

Department’s definition of the 

employee’s ‘‘worksite’’ is in accord with 

the FMLA’s legislative history, namely, 

that the term was to be construed the 

same as the term ‘‘single site of 

employment’’ under the WARN Act 

regulations. The National Partnership 

commented that the purpose of 

designating the primary office as the 

worksite is to ensure that the employer 

with the primary responsibility for the 

employee’s assignment is the one held 

accountable for compliance with these 

regulations. See Doc. 10204A, at 6. The 

National Partnership stated that the 

same principles articulated in the 

regulations with regard to ‘‘no fixed 

worksite’’ situations also should apply 

to this factual scenario. ‘‘In cases where 

employees have long-term assignments, 

we believe the purposes of the FMLA 

are best served by using the primary 

employer from which the employee is 

assigned as the worksite for determining 

FMLA coverage.’’ Id. 

Similarly, the Public Service 

Company of New Mexico commented 

that it has employees who perform work 

in a remote area or at home, and that it 

always interprets the most favorable 

option for the employee for FMLA 

eligibility. ‘‘There is no known benefit 

to our company if we deny FMLA to 

certain workers simply due to their 

remote location.’’ Doc. 10074A, at 3. 

On the other hand, the National 

Council of Chain Restaurants 

commented that 29 CFR 825.104 and 

825.106 are overly vague and expansive 

in their definitions of joint and 

integrated employment. Doc. 10157A, at 

3. The National Council stated that 

these regulations were creating a 

potential liability for many restaurant 

franchisees and other small business 

owners who should not be considered 

employers under the Act. Id. 

Oftentimes, individuals will have an 

ownership interest in one or more restaurants 

or stores. The FMLA regulations create a 

potential risk that a joint employment 

situation or a single integrated enterprise will 

be found even when the franchisee has few, 

if any, individuals who work at or for more 

than one of the restaurants or stores. 

Id. at 4. 

The law firm of Pilchak Cohen & Tice 

commented that, under the current 

regulations, employees at the same size 

establishment are treated differently 

because one works for a traditional sole 

employer and the other works for a 

staffing firm: 

For example, where a small retail store 

chain may have many employees nationwide, 

each store could employ fewer than 50 

employees. Those employees clearly would 

not be eligible for FMLA in the traditional 

employment context. Yet, under the current 

regulation, if that same retail chain utilized 

contract employees from an entity which 

employed more than 50 employees from its 

home office and that is where the contract 

employees received their assignments from 

or reported to, those contract employees 

could have FMLA rights at the retail chain. 

This creates an arbitrary distinction between 


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sole and joint employers * * * Under 29 

CFR 825.106(e), an employer could contract 

for an engineer, Employee A, for a six-month 

project, and then find out after the employee 

has only been there for two weeks, that 

Employee A will need 12 weeks off due to 

the upcoming birth of his child. Upon 

Employee A’s departure, the employer would 

then have to spend the time and expense 

training Employee B only to [be] forced to 

return Employee A to the position, even 

though it had already spent time training two 

individuals. The employer would then have 

to spend additional time and expense 

bringing Employee A ‘‘up to speed’’ on the 

project and complete the training initially 

started. 

Doc. 10155A, at 7. 

Pilchak Cohen & Tice stated that the 

regulation would be more palatable if, to 

qualify for FMLA job restoration with 

the client company, the contract 

employee had to have at least 12 months 

of service at that location. Id. 

As discussed below, the law firm of 

Fisher & Phillips commented that an 

Outsourcing Vender (elsewhere called a 

Professional Employer Organization, or 

PEO) should not be treated as a joint 

employer. In contrast with an employer 

who uses a PEO, however, Fisher & 

Phillips stated that a small employer 

who uses employees from a temporary 

agency may still have to comply with 

the FMLA: 

In this context, aggregation of the number 

of employees of both the temporary agency 

and the worksite employer may make sense 

in some cases because the temporary agency 

can help the smaller employer adapt to an 

employee’s leave of absence by reassigning 

another temporary worker. Moreover, this 

regulation is consistent with Congress’ intent 

that the application of the FMLA not unduly 

burden smaller employers who are unable to 

reassign employees to cover for absent 

workers. 

Doc. FL57, at 6. 

The law firm of Smith & Downey 

commented that placement agencies (as 

opposed to PEOs, as discussed below) 

face a different problem than other 

employers, in that they may not succeed 

in obtaining the client company’s 

agreement to reinstate an employee who 

is returning from FMLA leave. Smith & 

Downey stated that in many cases 

although the placement agency dutifully 

fulfills its FMLA obligations, the entity 

with whom the employee was placed 

refuses to reinstate the employee 

returning from FMLA leave. Doc. FL106, 

at 1. ‘‘This scenario typically places the 

placement agency in an impossible 

position, particularly in those cases 

where the only placements provided by 

the placement agency are with the 

single entity in question.’’ Id. at 2. 

Smith & Downey commented that the 

client company may not be able to keep 

a position available for the temporary 

employee who is on FMLA leave 

because the position is mission-critical 

to the company’s success, and it 

proposed that the Department issue 

regulations that provide for an 

exception to the usual joint employment 

rules in those cases in which the 

employee is placed in a position that is 

mission-critical to the client employer. 

Id. 

The National Coalition to Protect 

Family Leave commented that the court 

in Harbert was correct in distinguishing 

between a jointly employed employee 

who is assigned to a fixed worksite and 

a jointly employed employee who has 

no fixed worksite and changes worksites 

regularly. ‘‘As for the former, the 

worksite for purposes of determining 

whether they are eligible employees 

* * * would be the fixed worksite of 

the secondary employer. As for the 

latter, the worksite would continue as 

stated in the regulation[.]’’ Doc. 10172A, 

at 13. 

Finally, Access Data Consulting 

Corporation stated that the best way to 

resolve identifying the employer is for 

the Department to clarify that ‘‘the 

person’s employer is the entity from 

which their paycheck is written.’’ Doc. 

10029A, at 2. This commenter stated 

that in the case of an employee who is 

employed by a long-term care placement 

agency and is assigned to work at the 

home of a client, the employer of record 

is the placement agency, not the client, 

because the paycheck is derived, or 

written from, the placement agency. 

‘‘This is not a situation where the 

employee has two employers; the 

employee has one—the placement 

agency, and that company’s 

demographics should be used to 

determine FMLA eligibility.’’ Id. 

2. Professional Employer Organizations 

(PEOs) 

A number of commenters, including 

the AFL–CIO, Jackson Lewis, Wilson 

Sonsini Goodrich & Rosati, Fulbright & 

Jaworski, Littler Mendelson, Fisher & 

Phillips, and TriNet, commented that 

the regulations incorrectly consider 

Professional Employer Organizations or 

PEOs (sometimes called HR Outsourcing 

Venders) to be joint employers with 

their client companies. 

The comments submitted by the law 

firm of Jackson Lewis explained the 

typical differences between a temporary 

staffing agency and a PEO: A temporary 

staffing agency is a labor supplier that 

supplies employees to a client 

employer. A PEO is a service provider 

that provides services to existing 

employees of a company. Doc. R362A, 

at 3. Jackson Lewis commented that the 

determination of whether an employee 

is a ‘‘key’’ employee for purposes of 

considering entitlement to leave, for 

example, is made by the client employer 

and not by the PEO. It further stated 

that, unlike a temporary staffing agency, 

a PEO does not have the ability to place 

an employee returning from FMLA 

leave with a different client employer. 

Id. at 4. 

Jackson Lewis commented that, like 

the employees of temporary staffing 

agencies, the client employer should 

include the employees serviced by a 

PEO for purposes of the 50 employee 

threshold, but should not include the 

corporate employees of the PEO or the 

employees of other clients of the PEO. 

See Doc. R362A, at 3, 5. ‘‘In the PEO 

context, the ‘‘worksite’’ is the client’s 

workplace. Just as in Harbert, 

aggregating unrelated companies that 

utilize the services of the same PEO is 

contrary to the purpose and intent of the 

statute and improperly creates coverage 

of employees that were not intended to 

be covered by the FMLA.’’ Id. at 5. 

The AFL–CIO commented that PEOs 

engage in a practice known as 

‘‘payrolling,’’ in which the client 

employers transfer the payroll and 

related responsibilities for some or all of 

their employees to the PEO, and that 

typically, the PEO also makes payments 

on behalf of the client employer into 

state workers’ compensation and 

unemployment insurance funds, but the 

PEO does not provide placement 

services. In contrast with a temporary 

staffing agency, this commenter stated, 

PEOs do not match people to jobs. See 

Doc. R329A, at 16. 

Thus, PEOs do not fit the model of the 

primary employer who should bear the 

FMLA’s job restoration responsibilities in a 

joint employment situation, because there is 

no evidence to suggest that hiring and related 

functions fall to them, as opposed to the 

client employer. * * * Client employers 

should not be able to shed FMLA 

responsibilities when they have contractual 

relationships with entities such as PEOs that 

are not able to fulfill the FMLA’s job 

restoration responsibilities, despite how 

attractive it may be for the client to shift, and 

the PEO to ‘‘accept,’’ those responsibilities. 

For all of these reasons, we urge the 

Department to reconsider its joint 

employment rules as they apply to PEOs and 

similar organizations. 

Id. at 17–18. 

The law firm of Wilson Sonsini 

Goodrich & Rosati commented that 29 

CFR 825.106(d) has led to a broader 

coverage of the Act than was intended 

by Congress. See Doc. R122A, at 4. 

Many small or start-up companies use 

PEOs to administer their payroll and 

benefits or provide other human 

resources assistance and this may 


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23 2005 data was used because the 2006 annual 

employment figures were not available in December 

of 2006 when the RFI was published. 

constitute a ‘‘joint employer’’

relationship. ‘‘As a result, an employer 

that has only 15 employees (which is 

the cause of the need to outsource 

human resources functions) and would 

not otherwise be covered by the FMLA 

must count the employees of the PEO in 

addition to their own employees, which 

results in FMLA coverage for the 

employer.’’ Id. 

The law firm of Littler Mendelson 

stated that a ‘‘PEO arrangement’’ refers 

to a circumstance in which a customer 

contracts with another company to 

administer payroll and benefits, and 

perform other similar functions. Doc. 

10271A, at 2. ‘‘Employee leasing 

arrangements’’—like those involving 

temporary services firms and other 

staffing companies—refer to 

arrangements in which the staffing firm 

places its own employees at a 

customer’s place of business to perform 

services for the recipient’s enterprise. 

The PEO assumes certain administrative 

functions such as payroll and benefits 

coverage and administration (including 

workers’ compensation insurance and 

health insurance). The PEO typically 

has no direct responsibility for ‘‘hiring, 

training, supervision, evaluation, 

discipline or discharge, among other 

critical employer functions.’’ Id. Littler 

Mendelson argued that an employer—

employee relationship between the PEO 

and these employees does not exist, 

based on the economic realities of the 

relationship and the fact that the 

employee is not dependent on the 

putative employer for his economic 

livelihood. ‘‘Because a PEO does not 

control its client’s employees, does not 

hire, fire or supervise them, determine 

their rates of pay or benefit from the 

work that the employees perform, the 

PEO cannot be considered an employer 

under the FLSA or the FMLA.’’ Id. at 3. 

Littler Mendelson commented that 

PEOs typically provide their services to 

small businesses and add value by 

administering their payroll process and 

providing access and administration of 

employee benefits that would be cost 

prohibitive if the small businesses tried 

to contract for these benefits on their 

own. ‘‘It makes no sense to make an 

otherwise non-covered employer subject 

to the FMLA, in contravention of 

Congress’ intent [in creating a small 

business threshold], simply because it 

contracts with a PEO for payroll services 

and other administrative benefits.’’ Id. at 

6. 

The law firm of Fisher & Phillips 

commented on the same kinds of 

differences discussed above between a 

PEO and a temporary employment 

agency, staffing agency or traditional 

leasing company. 

Specifically, if an employer contracts with 

an HR Outsourcing Vendor, should the 

number of individuals employed by the HR 

Outsourcing Vendor [PEO] be aggregated 

with the number of individuals employed by 

the employer in question? In addition, 

should the number of Individuals employed 

by the HR Outsourcing Vendor’s other clients 

(within a 75-mile radius) be aggregated with 

the number of individuals employed by the 

employer in question. The answer to both of 

these questions is ‘‘no.’’ Unfortunately, under 

the current regulations, this answer is not 

clear. Consequently, the ambiguity from the 

two controlling regulations on the issue 

(Sections 825.111 and 835.106(d) has forced 

some employers to turn to the Judicial system 

for relief. Thus, in the interest of Judicial 

economy, ensuring compliance with the 

FMLA where warranted, and effectuating 

Congress’ intent to protect small employers 

from the burdens of the FMLA, we 

respectfully request the DOL to revise and 

clarify not only Section 825.111, but also 

Section 826.106(b)–(e) concerning joint 

employment, as these sections relate to * * * 

[PEOs]. In addition, or alternatively, we urge 

the DOL to implement new regulations that 

expressly detail the requirements for an 

entity to be subject to the requirements of the 

FMLA. * * * Extending Section 835.106(d) 

to encompass relationships between * * * 

[PEOs] and their clients produces absurd 

results that were not intended by Congress 

and do not adhere to the intent of the FMLA. 

Doc. FL57, at 2–3. 

TriNet commented that in the case of 

a PEO, the employee is hired first by the 

client company and the PEO enters the 

picture when the client company signs 

up with the PEO and the existing 

workforce begins to receive PEO 

services. ‘‘The timing is exactly opposite 

with a temporary staffing agency that 

first has an employee in its pool of 

talent and then second assigns that 

employee to a particular company to 

work.’’ Doc. FL109, at 3. 

The law firm of Fulbright & Jaworski 

commented that PEO responsibilities 

vary by organization and contract, but 

that most are not involved in the dayto-day operations of their client’s 

business and do not exercise the right to 

hire, fire, supervise or manage daily 

activities of employees. In some cases, 

the PEO and the client are not in the 

same city. Doc. FL62, at 1. The firm 

commented on the need for the 

Department to clarify that opinion letter 

FMLA—111 (Sept. 11, 2000) is about an 

atypical PEO who actually exercised 

control over client’s employees. ‘‘This 

comment letter requests a Department 

regulation [as follows] clarifying that the 

most common type of PEOs—PEOs that 

do not exercise control of employees ’’

are not covered employers under the 

FMLA.’’ Id. at 2. 

Professional Employer Organizations that 

contract to perform administrative functions, 

including payroll, benefits, regulatory 

paperwork, and updating employment 

policies, are not joint or integrated employers 

with their clients under the provisions of 29 

CFR 825.104 and 825.106, provided they do 

not exercise control over the day-to-day 

activities of the client’s employees or engage 

in the hiring or firing of the client’s 

employees. 

Id. at 6. 

3. Employees Who Work at Home 

The RFI also sought comment on what 

constitutes the worksite for an employee 

who works from home. As discussed 

above, the Access Data Consulting 

Corporation commented that the 

employer should be determined ‘‘by the 

entity from which their paycheck is 

written.’’ Doc. 10029A, at 2. This 

commenter stated that the same 

principle should apply to workers who 

work from home. Id. 

The National Coalition to Protect 

Family Leave commented that 29 CFR 

825.111(a)(2) already addresses the 

issue of identifying the worksite for 

employees who work at home by 

expressly stating that an employee’s 

home is not an appropriate worksite. In 

such cases, the location the employee 

reports to or that furnishes the employee 

with assignments is the worksite for 

FMLA purposes. ‘‘The Coalition concurs 

with this analysis * * * [and] asks DOL 

to clarify the situation where an 

employee is jointly employed and works 

out of his home instead of changing 

locations regularly or at a secondary 

employer’s premises. In such 

circumstances, the Coalition 

recommends that the employee’s 

worksite be the primary employer’s 

office from which the employee is 

assigned or reports.’’ Doc. 10172A, at 

13. 

XI. Data: FMLA Coverage, Usage, and 

Economic Impact 

To assist in analyzing the impacts of 

the FMLA, the Department presented 

estimates of the coverage and usage of 

FMLA leave in 2005 in the ‘‘FMLA 

Coverage and Usage Estimates’’ section 

of the Request for Information (‘‘RFI’’).23

The Department requested comment on 

these estimates and any data that would 

allow the Department to better estimate 

the costs and benefits of the FMLA, as 

well as particular issues for which the 

Department was seeking additional 

information. 

The Department’s estimates were 

based, in large part, on a report it 

published in January 2001, Balancing 

the Needs of Families and Employers: 

Family and Medical Leave Surveys, 


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24Westat is a statistical survey research 

organization serving agencies of the U.S. 

Government, as well as businesses, foundations, 

and state and local governments. These surveys 

were commissioned by the Department of Labor in 

2000 as an update to similar 1995 surveys ordered 

by the Commission on Family and Medical Leave, 

which was established by Title III of the FMLA. 

Many of the comments to the RFI cited the Westat 

Report and surveys but referred to it by a number 

of names including the West Report, Westat’s 

FMLA Report, the FMLA Report, the Department’s 

FMLA Report, and the 2000 FMLA Report. In order 

to minimize any confusion in this chapter, the 

report will be referred to as the ‘‘2000 Westat 

Report,’’ the employer survey will be referred to as 

‘‘Westat’s employer survey,’’ the employee survey 

will be referred to as ‘‘Westat’s employee survey,’’

and when discussing both the employer and 

employee surveys they will be referred as the 

‘‘Westat surveys.’’

25Some of the data submitted were national 

surveys (e.g., AARP, International Foundation of 

Employee Benefit Plans, Society for Human 

Resource Management, National Association of 

Manufacturers, U.S. Chamber of Commerce, 

WorldAtWork, and the College and University 

Professional Association for Human Resources). 

Others submitted surveys or collections of reports 

from their clients, customers, or members (e.g., 

Willock Savage, Kalamazoo Human Resources 

Management Association, Manufacturers Alliance, 

Air Conference, Association of American Rail 

Roads, Retail Industry Leaders Association, 

National Federation of Independent Business, HR 

Policy Association, International Public 

Management Association for Human Resources, and 

American Bakers Association). Numerous other 

comments provided data from individual 

companies (e.g., United Parcel Service, U.S. Postal 

Service, Honda, Southwest Airlines, YellowBook, 

Madison Gas and Electric Company, Edison 

Electric, Verizon, Delphi, MGM Mirage, Union 

Pacific, and Palmetto Health) or government and 

quasi-government agencies (e.g., New York City, 

Dallas Area Rapid Transit, Fairfax County, VA, the 

Port Authority of Allegheny County, PA, and the 

City of Portland, OR). Other comments provided 

references to previously published studies (e.g., 

Darby Associates, the Center for WorkLife Law, 

Women Employment Rights, and the Family Care 

Alliance). Many comments were also received from 

labor organizations and family advocates (e.g., 

AFL–CIO, Communications Workers of America, 

National Partnership for Women and Families, 

Families USA, 9to5, National Association of 

Working Women). Finally, the Department received 

many comments from workers who took FMLA 

leave. 

2000 Update and its underlying 

employer and employee surveys. As the 

Department explained in the RFI, this 

report is commonly referred to as ‘‘the 

2000 Westat Report’’—available online 

at www.dol.gov/esa/whd/ 

fmla2007report.htm.24

The 2000 Westat Report was a 

compilation, analysis, and comparison 

of one set of survey research with 

another set that was conducted in 1995. 

Title III of the Family and Medical 

Leave Act established a bipartisan 

Commission on Family and Medical 

Leave to study family and medical leave 

policies. The Commission surveyed 

workers and employers in 1995 and 

issued a report published by the 

Department in 1996, ‘‘A Workable 

Balance: Report to Congress on Family 

and Medical Leave Policies’’ ‘‘—

available online at www.dol.gov/esa/ 

whd/fmla2007report.htm. 

The RFI was not meant to be a 

substitute for survey research about the 

leave needs of the work force and/or 

leave policies being offered by 

employers. Nonetheless, the Department 

identified a number of issues in the RFI 

on which it sought quantitative data that 

would supplement and update the data 

that was collected by the Westat 

surveys. The Department specifically 

asked for information and data on: 

• The approach the Department used 

to estimate the number of eligible FMLA 

workers at covered establishments in 

2005; 

• The approach the Department used 

to estimate the number of FMLA leavetakers given the data limitations and 

methodological issues in the 2000 

Westat Report, and other available data 

that could be used to refine its estimate; 

• The approach the Department used 

to estimate the number of covered and 

eligible workers taking intermittent 

FMLA leave, and other available data 

that could be used to refine its estimate; 

• The approach the Department used 

to estimate the number of covered and 

eligible workers taking unforeseen 

intermittent FMLA leave, other 

available data that could be used to 

refine this estimate, and information on 

the prevalence, durations, and causes of 

intermittent leave; and, 

• The economic impact of 

intermittent FMLA leave and 

unforeseen intermittent leave, including 

any differences between large and small 

employers, the impact that unscheduled 

intermittent leave has on productivity 

and profits, information on the 

concentration of workers taking 

unscheduled intermittent FMLA leave 

in specific industries and employers, 

and information on the factors 

contributing to large portions of the 

work force in some facilities taking 

unscheduled, intermittent FMLA leave. 

The Department also asked for 

information related to the different 

treatment of FLSA exempt and 

nonexempt employees taking 

unscheduled, intermittent FMLA leave, 

and the different impact the leave taken 

by FLSA exempt and nonexempt 

employees may have on the workers 

who are taking leave and their 

employers. More generally, the 

Department also asked for information 

that can be used to improve the 

estimates of the impact that FMLA leave 

has on employers and employees, and 

for any data that would allow the 

Department to better estimate the costs 

and benefits of the FMLA. 

In response to this request, the 

Department received a significant 

amount of quantitative and qualitative 

data from a wide variety of sources that 

updates and builds upon the data 

collected in the Westat surveys. This 

includes a wide variety of national 

survey data from employers and 

employees; detailed information from 

specific employers, both large and 

small, in a wide variety of industries; 

and economic studies, or references to 

economic studies, on the costs and 

benefits of the FMLA.25

The Department also received 

comments on the estimates it presented 

in the RFI, many of which were 

consistent with the Department’s 

estimates. Many comments stated that 

the Department’s estimates of FMLA 

usage, especially of intermittent FMLA 

leave, appear to be low given their 

experience. In this chapter, the 

Department presents both the estimates 

developed for the RFI and the comments 

received about those estimates. 

Although the Department evaluates the 

RFI estimates based upon the comments 

received, no revisions to the RFI 

estimates have been developed at this 

time. Finally, this chapter offers some 

observations about the impacts of 

certain aspects of FMLA leave on 

certain sectors of the economy. 

Care should be taken to avoid drawing 

improper comparisons of data submitted 

in response to the RFI with the data 

from the Westat surveys. The record 

presented here is different than the 

previous two Departmental reports 

because the RFI is a different 

information-gathering tool than the 

previous surveys. Given the differences 

in the data gathering approaches, the 

depth with which the RFI looked at 

specific regulatory issues, and, of 

course, the differences in the selfselection of those who took the time to 

submit comments to the RFI compared 

to voluntarily responding to previous 

survey questionnaires, variations in the 

data should be expected. 

A. Comments on the 2000 Westat Report 

and Further Data Collection 

The Department used the 2000 Westat 

Report as the basis for the coverage and 

usage estimates presented in the RFI. 

Although the Department did not 

specifically ask for comments on 

estimates in the 2000 Westat Report, it 

did note that it was ‘‘interested in 

refining the coverage and eligibility 

estimates in the 2000 Westat Report,’’

and highlighted a number of important 

results and caveats from the 2000 

Westat Report. 


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26See 2000 Westat Report, at C–1. 

27See 2000 Westat Report, at 3–4. 

28See also footnote 25. 

29See 2000 Westat Report, Foreword by DOL at 

ix. 

The Department received a few 

comments alleging the RFI was critical 

of the 2000 Westat Report. For example, 

the National Partnership for Women & 

Families stated that ‘‘[t]he RFI takes 

great pains to criticize the 2000 study of 

FMLA[.]’’ Doc. 10204A, at 2. However, 

as the Department explained in the RFI, 

there were several methodological 

issues that Westat itself noted 

(particularly in Appendix C) 26 that may 

have resulted in, among other issues, 

the overestimation of FMLA-covered 

and eligible workers and an 

underestimation of workers not 

covered.27 Identifying some of Westat’s 

own caveats and limitations was not a 

criticism of the 2000 Westat Report. 

Rather, the methodological issues of the 

2000 Westat Report referred to in the 

RFI, some of which had to do with 

statistics regarding intermittent leave, 

were meant to fully inform the public 

about the limitations of the 2000 Westat 

Report particularly in light of how the 

data was being used and because the 

Department was interested in refining 

some of the estimates. It should further 

be noted that the Department based its 

best estimates on the 2000 Westat 

Report and believes that, despite the 

caveats noted, the 2000 Westat Report 

still provides a great deal of useful 

information and data on FMLA leavetakers. A number of commenters 

concurred, stating: ‘‘the 2000 Westat 

Study, even with its limitations, has 

been invaluable and represents the best 

available source for information on 

FMLA usage and coverage.’’ Faculty & 

Staff Federation of Community College 

of Philadelphia, Local 2026 of the 

American Federation of Teachers, Doc. 

10242A, at 2. 

Other commenters, however, were 

more critical of the 2000 Westat Report. 

For example, the U.S. Chamber of 

Commerce noted that the questionnaire 

used to survey establishments ‘‘provides 

little insight * * * on the nuanced 

complexity of the law, the vagueness 

that has resulted in abuse of FMLA 

leave, the cost associated with 

compliance and, more significantly, the 

cost associated with providing leave to 

employees who likely were not 

intended to be covered by the statute.’’

Doc. 10142A, at 11. Another comment 

noted ‘‘[t]he Department does not have 

an accurate measure of intermittent 

leave because this was not covered 

adequately by the Westat surveys’’ and 

that ‘‘there are a few questions in [the 

employer] survey that address 

intermittent leave, but not necessarily 

the FMLA definition of intermittent 

leave.’’ Randy Albelda, Heather 

Boushey, and Vicky Lovell, Doc. 

10223A, at 2. An economic analysis of 

the FMLA by Criterion Economics 

concluded that the results of the Westat 

surveys ‘‘are subjective, qualitative, 

incomplete, and biased in the direction 

of understating the costs of FMLA[.]’’

National Coalition to Protect Family 

Leave, Doc. 10172A, Attachment at 23. 

A number of groups favored 

additional data collection, beyond the 

RFI, but were split as to whether such 

additional data collection was needed to 

form the basis for rulemaking or would 

even contribute significantly beyond 

what is already known and available. 

The National Partnership for Women & 

Families noted that ‘‘the lack of 

available data on many of the issues 

raised in the RFI is an unfortunate 

reminder of DOL’s failure to conduct 

objective studies on the FMLA and its 

implementation in recent years. * * * 

DOL has neglected to undertake 

significant efforts to update this 

research, thus leaving an information 

void. While the RFI solicits data from 

commenters on a long list of questions, 

in many cases it is DOL that has been—

and is—best positioned to gather the 

relevant data to provide answers.’’ Doc. 

10204A, at 2. ‘‘DOL has a particularly 

important role in conducting and 

commissioning objective, scientifically 

sound research that can be used to 

inform and assess implementation of the 

FMLA,’’ and that pursuing changes to 

the FMLA regulations without such data 

is unwarranted and inappropriate. Id. 

The AFL-CIO stated ‘‘The Department 

should not yield to anecdotal evidence 

with respect to the purported burden of 

leave on employers as a basis for 

tightening the eligibility rules for FMLA 

leave. Anecdotes can never substitute 

for hard data[.]’’ Doc. R329A at 9. 

Randy Albelda, Heather Boushey, and 

Vicky Lovell mirrored the comments of 

others that recommended that 

‘‘[a]dditional data collection, using 

nationally representative surveys, could 

illuminate the issues raised in the RFI’’

while noting that the Westat surveys 

‘‘provide us with valuable information 

about family and medical leavetaking[.]’’ Doc. 10223A, at 1, 2. Criterion 

Economics concluded that ‘‘[t]he 

Department has taken the first step 

towards a more complete and accurate 

assessment by soliciting additional 

information through the RFI[.]’’ National 

Coalition to Protect Family Leave, Doc. 

10172A, Attachment at 23. The U.S. 

Chamber of Commerce also 

recommended that a ‘‘follow-up study 

with employers should be conducted,’’

but did not believe such further study 

should delay regulatory action ‘‘strongly 

recommend[ing]’’ that the Department 

initiate a rulemaking. Doc. 10142A, at 

12. Another economic analysis by Darby 

Associates noted that although ‘‘the data 

are scattered, spotty, frequently 

inconsistent, and largely anecdotal and 

episodic,’’ ‘‘[t]here is in the record a 

substantial amount of data, analysis and 

conjecture on which to base a 

description of various attributes of 

benefits and costs arising from over a 

decade of experience under the FMLA.’’

National Coalition to Protect Family 

Leave, Doc. 10172A, Attachment at 7. 

The Department does not dispute that 

the RFI was not a nationally 

representative FMLA survey as were the 

Westat surveys and the Department 

makes no attempt to directly compare 

data from such different types of 

information collection. The Department, 

nevertheless, believes that the RFI was 

a useful information collection method 

that yielded a wide variety of objective 

survey data and research, as well as a 

considerable amount of companyspecific data and information that 

supplements and updates our 

knowledge of the impacts of FMLA 

leave. In fact, several organizations 

conducted national surveys in response 

to the RFI.28

Finally, the Department asked a 

number of questions in the RFI on 

intermittent leave because one of the 

findings of the 2000 Westat Report was 

that ‘‘most employers report no adverse 

effects [from FMLA], including from 

intermittent leave,’’ 29 while more recent 

information on intermittent leave from 

private sector surveys and reports, 

recommendations to the Office of 

Management and Budget, and 

stakeholder meetings suggested that 

intermittent leave is a difficult issue for 

many employers, particularly in some 

industries. Moreover, there was not a lot 

of information on the issue in the 2000 

Westat Report. As the remainder of this 

chapter demonstrates, the data and 

information obtained in response to the 

RFI provides considerable insight and a 

far more detailed picture of the 

workings of the FMLA, and the impact 

of intermittent leave, than the Westat 

surveys. 

B. Number of Covered and Eligible 

Workers 

The Department presented its best 

coverage estimates in the RFI. These 

estimates were based upon updating the 

estimates in the 2000 Westat Report to 

account for differences in employment 

between 2000 and 2005 and 


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30The U.S. Postal Service only reported data for 

those employees who are in its eRMS system. 

‘‘correcting’’ some of the methodological 

issues in the 2000 Westat Report. A full 

description of the Department’s 

approach was presented in the RFI and 

resulted in the following estimates: 

NUMBER OF COVERED AND ELIGIBLE

EMPLOYEES UNDER THE FAMILY AND

MEDICAL LEAVE ACT IN 2005 

In millions 

Total U.S. Employment ........ 141.7 

Employees at FMLA-Covered Worksites .................. 94.4 

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

Note: Employment for 2006 was not available at the time the RFI was published in December 2006. 

The Department did not receive any 

substantive comments on its coverage or 

eligibility estimates or the methodology 

it used to produce those estimates and 

concludes that these estimates are 

currently the best available. 

C. Number of Workers With Medical 

Certifications for Chronic Conditions 

Although the Department did not 

specifically ask in the RFI for comments 

on the number of covered and eligible 

workers who have medical certifications 

for FMLA leave, nor did it ask for this 

information in either the 1995 FMLA 

surveys or Westat surveys, it received a 

wide variety of information and data on 

this issue. Nationwide survey data and 

company-specific reports indicate that a 

significant number of workers have 

medical certifications on file with their 

employers for chronic health 

conditions, especially for some facilities 

or workgroups, and that the number is 

increasing. For example: 

• Respondents to the National 

Association of Manufacturers’ survey 

reported ‘‘that 25 percent of those 

eligible for FMLA leave had medical 

certifications on file for a ‘chronic’

illness that permitted unannounced, 

unscheduled intermittent leave.’’ Doc. 

10229A, at 10. 

• Another comment noted that 

‘‘[s]everal other [air] carriers report that 

50% or more of all flight attendants and 

agents are certified for FMLA leave.’’

Air Conference, Doc. 10160A, at 4. 

• A survey by the U.S. Chamber of 

Commerce found ‘‘[l]arge companies 

reported having generally 15 percent of 

the workforce with active medical 

certifications for FMLA at any time.’’

Doc. 10142A, at 2. 

• Verizon noted that 44 percent of the 

employees in its Florida Network 

Centers division had medical 

certifications and their Business 

Solutions Group saw a jump in medical 

certifications from 28 percent in 2005 to 

42 percent in 2006. Doc. 10181A, at 4. 

• The Commonwealth of 

Pennsylvania stated that it has two 24/ 

7 healthcare facilities where 6 percent 

and 10 percent of the workers have 

medical certifications that excuse them 

from working mandatory overtime. Doc. 

10042A, at 3. 

• The City of New York noted that 32 

percent of all police communication 

technicians (911 call-takers) have 

medical certifications. Doc. 10103A, at 

3. 

The data received in response to the 

RFI suggest that a significant number of 

workers in certain facilities and 

workplaces have medical certifications 

on file for chronic health conditions, 

which due to certain regulatory 

provisions and interpretations can allow 

these workers to take unscheduled 

intermittent leave with little or no 

notice, or to be excused from certain 

shifts or mandatory overtime. 

D. Number of FMLA Leave-Takers 

The Department presented three 

estimates of the number of covered and 

eligible workers who took FMLA leave 

in 2005 and asked for information and 

data on the approach it used to make 

these estimates, and for other available 

data that could be used to develop its 

estimates given the data limitations and 

methodological issues in the 2000 

Westat Report. A full discussion of the 

Department’s approach was presented 

in the RFI and resulted in the following 

estimates: 

Percent of 

covered & 

eligible 

workers taking leave 

Number of 

FMLA 

leave-takers 

(in millions) 

Upper-bound 

Estimate* ....... 17.1 13.0 

Employer Survey Based 

Estimate** ..... 8.0 6.1 

Lower-bound 

Estimate* ....... 3.2 2.4 

*From the Westat employee survey. 

**The Department used a rate of 6.5 percent of covered workers in the RFI. The rate 

presented here is the percentage of covered 

and eligible workers calculated by dividing 6.1 

million by 76.1 million. 

In response to this request the 

Department received a significant 

amount of data on FMLA leave usage 

from a wide variety of sources, 

including nationally representative 

survey data and detailed information 

from specific employers, both large and 

small, in a wide variety of industries. 

The Department also received a few 

comments on the data limitations with 

its approach and methodology for 

estimating FMLA leave usage. 

1. Comments on the Department’s 

Approach and Data on the Number of 

Leave-Takers 

The Department received very few 

comments on its approach. Most of the 

comments concerning the Department’s 

leave estimates presented FMLA usage 

figures at or above the Department’s 

estimates, although many of these were 

for individual employers or certain 

facilities of individual employers. For 

example: 

• The U.S. Postal Service reported 

that 18.4 percent of its 620,688 

employees took FMLA leave in 2006.30

Doc. 10184A, at 3. 

• Madison Gas and Electric Company 

stated, ‘‘[o]ur data shows 30% of eligible 

workers requested FMLA leave. Of the 

30%, only 69% of the requested leaves 

qualified as FMLA leave. This resulted 

in 20% of eligible workers taking a 

qualified FMLA leave.’’ Doc. 10288A, at 

4. 

• Delphi reported that at one of its 

large manufacturing facilities in the 

Midwest ‘‘nearly one of every five’’

workers took FMLA leave in 2005. Doc. 

10225A, at 1. 

• UnumProvident reported that 17 

percent of the employees in the FMLA 

program that it administers for 95 

clients nationwide took FMLA in 2006. 

Doc. 10008A, at 1–2. 

• First Premier Bank stated that ‘‘[o]n 

average, over 25% of our staff has been 

on FMLA at one point or another during 

the course of a year. There is almost 

10% of our staff on FMLA at any given 

time.’’ Doc. 10101A, at 1. 

• The University of Washington 

noted that ‘‘[i]n our organization of 950 

employees * * * we consistently have 

20% of the workforce absent from work 

under FMLA[.]’’ Doc. FL17, at 2. 

The Department notes that although 

some employers experienced higher 

rates of FMLA usage than the rates 

published in the RFI, this does not 

indicate that these estimates were 

wrong. The Department presented three 

alternative estimates of average FMLA 

use across all employers in all 

industries of the economy in the RFI. 

Clearly some employers in some 

industries will experience higher rates 

of usage just as other employers in other 

industries may experience lower rates. 

For example, the International 

Foundation of Employee Benefit Plans 

conducted a nationwide survey of 241 

corporate benefit managers, public 


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employers, and professional service 

providers and found: 

Percent of workers using 

FMLA leave 

Percent of 

companies 

Less than 1% .......................... 9 

1% to 3% ................................ 17 

4% to 6% ................................ 22 

7% to 10% .............................. 17 

11% to 15% ............................ 11 

16% to 20% ............................ 6 

More than 20% ....................... 4 

Don’t Know ............................. 13 

Doc. 10017A, at 17. 

Although it is not possible to 

calculate the mean of this survey, the 

median of those reporting a percentage 

is between 7 percent and 10 percent. 

This would appear to be consistent with 

the national average findings presented 

in the 2000 Westat Report that 6.5 

percent of workers employed at 

facilities covered by the FMLA took 

FMLA leave, and reflects the comments 

that suggest ‘‘[w]ith the exception of 

Westat’s employer survey, in which 

double counting may have occurred, the 

data tends to show that FMLA usage 

remains low.’’ AFL–CIO, Doc. R329A, at 

5 (footnote omitted). 

Additional comments reported FMLA 

usage that is consistent with the range 

the Department estimated in the RFI. 

For example: 

• A nationwide survey of 1,356 

covered and eligible workers age 50+ by 

AARP found that 9 percent took leave 

under the FMLA. Doc. 10228B, at 5. 

• The NJ Transit reported that 9 

percent of its employees are covered 

and eligible leave-takers. Doc. FL85, at 

8. 

• FNG Human Resources stated that 

‘‘an average of 8% of employees [are] on 

some manner of Family Medical Leave 

at all times.’’ Doc. FL13, at 2. 

• Progressive Inc. also reported that 

approximately 10 percent of its 

workforce is on FMLA leave at any 

given time. Doc. FL2, at 1–2. 

• The AFL–CIO stated that ‘‘our 

survey shows that almost 16 percent 

(15.99%) of respondents have taken 

FMLA leave. These results are well 

within the general range of the Westat 

employee-based survey[.]’’ Doc. R329A, 

at 7. 

Further, comments clearly show that 

FMLA leave usage varies with 

workgroups of some employers and that 

using averages for FMLA usage may 

hide the impact it has on some 

employers and some facilities/ 

workgroups within employers. For 

example: 

• Union Pacific reported that ‘‘17% of 

Train and Engine Service employees use 

FMLA leave versus 3.5% use among all 

other employees (5 x more). This 

disproportionate rate of use is magnified 

when coupled with the fact that Train 

and Engine Services employees make up 

roughly 46% of all employees company 

wide (25,000 of 54,000 total).’’ Doc. 

10148A, at page 2. 

• The Manufacturers Alliance 

reported that one ‘‘member company 

that is highly diversified, with eight 

business groups, states that the 

percentage of FMLA leave taken 

intermittently within those groups has 

ranged from a low of 10 percent to a 

high of 75 percent. Across all units, the 

company estimates that the percentage 

of intermittent leave as a percentage of 

all FMLA leave is in the range of 40 to 

50 percent.’’ Doc. 10063A, at 3. 

2. Trend in the Number of Workers 

Taking FMLA Leave 

A number of comments indirectly 

echoed Randy Albelda, Heather 

Boushey, and Vicky Lovell, who 

specifically noted that ‘‘using the 2000 

share of those taking leave with 2005 

employment data may also 

underestimate the true take-up of the 

FMLA.’’ Doc. 10223A, at 1. The Albelda 

letter speculated that more people may 

know their FMLA rights in 2005 

compared to 2000, just as the 1995 

FMLA surveys and Westat surveys 

showed an increase in the percentage of 

covered workers taking FMLA leave 

from 1995 to 2000. Madison Gas and 

Electric attributed its higher rate to 

employers’ ‘‘increased awareness and 

recordkeeping related to FMLA leave’’

and ‘‘[e]mployees have also become 

more aware of their rights under FMLA, 

which has changed the scope of leaves 

requested and taken.’’ Doc. 10288A, at 

4. 

A number of other commenters 

explicitly reported that the use of FMLA 

leave has increased since 2000. For 

example: 

• The Air Conference stated that 

‘‘[t]he percentage of employees using 

FMLA is steadily increasing’’ in the 

airline industry. Doc. 10160A, at 4. 

• The Port Authority of Pittsburgh 

stated that ‘‘the number of employees on 

an approved leave at any one time has 

increased by five percent. In 2002 

approximately 6% of the workforce was 

on leave at any one time. Over the years, 

this number has steadily increased to 

the current level of 11%.’’ Doc. FL135, 

at 2. 

• ‘‘The Dallas Area Rapid Transit 

(DART) has experienced a significant 

increase in FMLA utilization over the 

past four years. Employee FMLA 

absences increased from 1,965 workdays 

in FY 2003, to over 6,100 workdays in 

2006.’’ Doc. FL41, at 2. 

• The National Association of 

Manufacturers commented that ‘‘for one 

major auto parts manufacturer, 

applications for FMLA leave increased 

150-fold in ten years,’’ Doc. 10229A, at 

4. 

• The City of New York reported that 

‘‘[t]he use of FMLA leave * * * has 

increased substantially in the last five 

years, from 10.8% of all medical leave 

in 2001 * * * to the 2006 level of 

27.0% of all medical leave.’’ Doc. 

10103A, at 2. 

• Aztec Manufacturing reported that 

‘‘FMLA absences have grown 200% 

from 2002 to 2006.’’ Doc. 10081A, at 2. 

Others suggested that FMLA usage 

remains low. The Department notes, 

however, that firms with higher than 

average FMLA usages rates probably 

have a greater incentive to report their 

higher rates than those with rates lower 

than the average. 

Although the weight of the comments 

strongly suggests that the percentage of 

employees using FMLA leave has 

increased, particularly in some 

industries, the range of workers who 

took FMLA leave in 2005 (between 3.2 

percent and 17.1 percent) is consistent 

with the data submitted in response to 

the RFI. Nevertheless, the Department 

recognizes it is possible that the number 

of workers who took FMLA leave in 

2005 is more likely to be between 6.1 

million and 13.0 million than between 

2.4 million and 6.1 million. As the next 

section indicates, awareness of the 

FMLA appears to be higher in 2005 than 

in 1999 when Westat conducted its 

surveys. So just as FMLA usage 

increased between the times the two 

surveys sponsored by the Department 

were conducted in the 1990s, given the 

comments received it is likely that 

FMLA usage increased between 1999 

and 2005. 

3. Awareness of FMLA Leave Usage 

In the RFI, the Department also raised 

the issue about the difference between 

its lower-bound estimate based upon 

Westat’s employee survey and its best 

estimate based upon Westat’s employer 

survey. The Department noted: ‘‘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.’’

71 FR 69511. 

The Department received many 

comments on this issue. For example, 

one commenter stated that ‘‘[t]he 

obvious reason for this [discrepancy 

between employer and employee survey 


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figures] is that a significant number of 

employers are not properly informing 

employees that they are utilizing FMLA 

leave time when that is actually 

occurring.’’ Kennedy Reeve & Knoll, 

Doc. 4763A, at 13. 

Others believe that there may be some 

confusion over FMLA leave when other 

types of leave are taken concurrently. 

The National Council of Chain 

Restaurants, for example, stated that the 

Department asked ‘‘why employee 

estimates regarding the use of FMLA are 

so much lower than employer estimates. 

We believe employees are much more 

likely to focus on whether leave is paid 

or unpaid, and only to count unpaid 

leave as FMLA leave when they answer 

such questions.’’ Doc. 10157A, at 7. The 

Commonwealth of Pennsylvania 

reported that 6 percent of its employees 

‘‘use some type of FMLA qualifying 

leave without pay each year.’’ Doc. 

10042A, at 2. However, this did ‘‘not 

include employees who use paid leave 

in lieu of unpaid FMLA leave.’’ Id. 

Data from the Westat surveys and 

other surveys suggest that when many 

employees think of FMLA leave, they 

only think of unpaid leave and do not 

realize that FMLA leave often runs 

concurrently with paid leave. They do 

not associate taking paid sick leave and 

other forms of paid leave (e.g., vacation, 

personal) as taking FMLA leave ‘‘ when 

at times it may be designated as such by 

their employer as permitted by the 

statute. For example, AARP’s national 

sample of workers 50 or more years old 

reported that ‘‘[d]espite high overall 

awareness of FMLA and the fact that the 

majority (58%) of survey respondents 

have taken at least some time off for 

family- or medical-related reasons 

within the past five years, only nine 

percent of respondents (or 15% of leavetakers) reported that any of the time 

taken was FMLA leave.’’ Doc. 10228B, 

at 4. 

4. Continuing Concern With Estimates 

of Leave Usage Over Time 

After reviewing the comments the 

Department continues to believe that the 

available data do not enable an accurate 

estimation of the total number of 

workers who took FMLA leave since 

1993, and remains concerned about the 

possible misinterpretation of its 

estimates and misapplication of its 

methodology for estimating the number 

of workers who took FMLA leave in a 

given year. In fact, the Department 

received a few comments with different 

estimates of the number of workers who 

have taken FMLA leave since 1993. For 

example, the National Women’s Law 

Center noted, without citation, that 

‘‘[c]lose to 80 million workers have 

taken FMLA leave in the last 14 

years[,]’’ and 9to5 stated, again without 

citation, that ‘‘FMLA has allowed more 

than 50 million Americans to take jobprotected leave[.]’’ Doc. 10272A, at 1; 

and Doc. 10210A, at 1, respectively. 

As noted in the RFI, the Department 

has determined that the available data 

do not enable the accurate estimation of 

the total number of workers who have 

taken FMLA leave from 1993 to 2005 

because ‘‘establishments may double 

count persons that took more than one 

FMLA leave’’ during the 18–20 month 

survey period that began in January 

1999. 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. 

5. Differences Between FLSA Exempt 

and Nonexempt Workers 

In the RFI the Department solicited 

the following information with respect 

to workers who are salaried and exempt 

from the Fair Labor Standards Act 

(‘‘FLSA’’) under 29 CFR Part 541: 

• 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 have taken leave and their 

employers. 

The Department received a few 

comments in response to this request 

but they were generally vague and 

inconclusive. Some comments indicated 

that nonexempt employees tend to take 

more FMLA leave than exempt 

employees. For example, ‘‘[t]he majority 

of our FMLA requests are from hourly 

Fair Labor Standards Act-nonexempt 

employees.’’ University of WisconsinMilwaukee, Doc. FL120, at 1. Others 

indicated that FMLA usage by 

nonexempt workers presents more of an 

issue than FMLA usage by exempt 

workers because nonexempt workers 

tend to take more unscheduled 

intermittent leave. For example: 

As a general rule, non-exempt employees 

are more likely to use unscheduled 

intermittent leave than exempt employees. In 

the case of exempt employees, many tend to 

work more than 40 hours each week anyhow, 

or make up the time later, or work from home 

even when on a leave of absence. Exempt 

employees tend to use FMLA leave primarily 

for birth of a child, acute illnesses or surgery, 

or planned medical treatment (e.g., 

chemotherapy), all of which normally result 

in scheduled time off and predictable time 

off. In most cases, these leaves are 

continuous leaves or intermittent leaves over 

a period of less than six (6) months. 

Spencer Fane Britt & Browne LLP, Doc. 

10133C, at 22. 

However, several comments, 

particularly from the Society for Human 

Resource Management chapters, suggest 

that the difference between exempt and 

nonexempt employees is not their 

pattern of FMLA leave use but rather the 

way their employers track the use of 

FMLA leave. One commenter stated that 

‘‘many employers do not keep track of 

partial day absences of exempt 

employees because it is virtually 

impossible to know if and when the 

time has been made up. Many exempt 

employees make up the time of their 

own volition.’’ Arkansas Society for 

Human Resource Management State 

Council, Doc. 5161, at 1. Another 

commenter noted that ‘‘[t]racking FMLA 

leave in such small increments is 

extremely burdensome—particularly 

with respect to exempt employees, 

whose time is not normally tracked.’’

Northern Arizona University, Doc. 

10014A, at 5. One worker also agreed 

that employers treat exempt and 

nonexempt workers differently when it 

comes to tracking FMLA leave: 

I know there is inconsistency throughout 

the company on the application of how 

FMLA is measured. For example, exempt 

employees are allowed to take time off and 

it is generally considered that if you have 

[worked] a minimum of 5 hours, you have 

[worked] a full day. If I call in late due to 

being ill, the time I work is measured and if 

I do not make the 8 hours, I’m expected to 

log the difference. If another exempt calls in 

late because their child is sick, nothing is 

done. If they come in late or leave early, it 

is never a problem. My time is always 

scrutinized and questioned. 

An Employee Comment, Doc. 10336A, 

at 9. 

Although there was no consensus in 

the comments on whether one group is 

taking more FMLA leave than the other 

group, one commenter noted an 

apparent difference in the manner in 

which exempt and nonexempt 

employees are paid while on FMLA 

leave. For example, Madison Gas and 

Electric stated ‘‘[a] variance also exists 

between time taken by FLSA exempt 

and non-exempt employees. Exempt 

employees are typically paid for time 

away while non-exempt employees do 

not receive pay, unless they are able to 

substitute from a paid leave balance. 

This pay for leave time differences 

generally increases the amount of time 

taken by FLSA exempt employees.’’

Doc. 10288A, at 5. 


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E. Number of Workers Taking 

Intermittent FMLA Leave 

The Department presented its 

estimate of the number of covered and 

eligible workers who took intermittent 

FMLA leave in 2005 and asked for 

information and data on the approach it 

used to make the estimate, and for other 

available data that could be used to 

refine its estimate. As noted in the RFI, 

the Department used data from Westat’s 

employee survey to develop an estimate 

of the number of workers that used 

intermittent FMLA leave in 2005. 

Specifically, Westat’s employee survey 

found that almost one-quarter (23.9 

percent) of covered and eligible workers 

who took FMLA leave reported taking 

their leave intermittently. That is, they 

repeatedly took leave for a few hours or 

days at a time because of ongoing family 

or medical reasons. Therefore, based on 

the Westat survey data, about 1.5 

million FMLA leave-takers (i.e., 23.9 

percent of 6.1 million FMLA leavetakers) or about 2 percent of the workers 

employed in the establishments covered 

by the FMLA (i.e., 1.5 million of 94.4 

million) used intermittent leave in 2005. 

In response to this request, the 

Department received a significant 

amount of data on intermittent FMLA 

leave usage from a wide variety of 

sources, including nationally 

representative survey data and detailed 

information from specific employers, 

both large and small, in a wide variety 

of industries. In fact, the Department 

received more data on this issue (and 

the unscheduled component of 

intermittent leave discussed in the 

following section) than almost any other 

issue in the coverage and usage section 

of the RFI. The Department also 

received a few comments on the data 

limitations with its approach and 

methodology for estimating intermittent 

FMLA leave usage. 

1. Comments on the Department’s 

Approach To Estimating Intermittent 

FMLA Leave Use 

As was noted in the RFI, the Westat 

surveys ‘‘tended to focus on the longest 

leaves taken for family and medical 

reasons rather than the leaves taken 

intermittently.’’ However, the Westat 

surveys also asked some questions 

related to intermittent leave. 

Randy Albelda, Heather Boushey, and 

Vicky Lovell submitted one of the most 

critical comments on the Department’s 

approach that touched on some data 

limitations of Westat’s employee survey 

while noting that ‘‘data that are 

available from the survey seem to 

suggest a wide range of possible leavetakers who might use the leave 

intermittently.’’ Doc. 10223A, at 2. 

Specifically, the Albelda letter stated: 

[The Department’s] approach may 

substantially understate the use of 

intermittent leave. The Department uses data 

from the employee survey, which does not 

ask about the number of intermittent leaves, 

asking instead whether those who took a 

leave for purposes covered under FMLA 

leave took their leave intermittently. Some, 

none, or all of that leave may have been 

under FMLA, but there is no way to know 

from the survey questions. Further, the 

Department applies this ‘‘guesstimate’’ to the 

total number of leave-takers, which may not 

be correct. As the Department points out, this 

assumes that all groups of workers are 

equally likely to take intermittent leave, 

which may not be true. 

The Department does not have an accurate 

measure of intermittent leave because this 

was not covered adequately by the Westat 

surveys’’. The Westat employee survey asks 

how many leaves employees took over the 

previous 16–18 month period and probes 

further about two of their longest leaves, but 

does not specifically ask about FMLAdefined intermittent leave[.] 

Doc. 10223A, at 2. 

This criticism notwithstanding, the 

Albelda letter went on to identify a 

number of questions in the Westat 

employee survey that might be used to 

refine the Department’s approach and 

reached nearly the same estimate as that 

presented by the Department in the RFI, 

that intermittent FMLA leave appears to 

be important for more than a quarter of 

leave-takers. Specifically, the Albelda 

letter noted: 

The data that are available from the survey 

seem to suggest a wide range of possible 

leave-takers who might use the leave 

intermittently. For example, 27.7 percent 

said they alternated between leave and work 

(question A5BB), with more than half (53.3 

percent) of that group indicating they did 

that for less than half of their leave (question 

A5C). So, a relatively large number indicate 

not taking a leave all at once, but over half 

did so for less than half of their leave. In 

another part of the survey, 7.2 percent of 

leave-takers said that they were not off work 

the entire time during their longest leave over 

the past 16–18 months (question A3E). Of 

those who took multiple leaves, 20 percent 

indicated they alternated between leave and 

work (question A8); of those, 13 percent 

indicated they do so regularly (question 

A8A). Thus, the ability to use FMLA leave 

intermittently appears to be an important 

feature of the policy for more than a quarter 

of leave-takers. 

Doc. 10223A, at 2–3 (footnote omitted). 

Madison Gas and Electric Company 

stated that ‘‘the approach used by the 

Department [to estimate the usage of 

intermittent leave] seems sound but will 

vary between employers. The estimated 

use of intermittent leave is lower than 

the experience of our company.’’ Doc. 

10288A, at 4. 

A number of commenters who were 

critical of the Department’s approach 

recommended that the Department 

collect additional information about 

intermittent FMLA leave, which was 

one of the objectives of the RFI. See 

Chapter XI, section A. 

2. Data on the Number of Intermittent 

Leave-Takers 

The Department received a significant 

amount of data on the number and 

percentage of workers who have taken 

intermittent FMLA leave that 

supplements and updates the results of 

the 2000 Westat Report. For example, a 

nation-wide survey of 241 corporate 

benefit managers, public employers, and 

professional service providers by the 

International Foundation of Employee 

Benefit Plans found: 

Percent of FMLA leave that 

is taken intermittently 

Percent of 

companies 

Less than 5 ............................... 48 

5 to 15 ...................................... 16 

16 to 25 .................................... 10 

26 to 55 .................................... 6 

More than 55 ............................ 5 

Don’t Know ............................... 14 

Doc. 10017A, at 20. 

Although it is not possible to 

calculate the mean of this survey, the 

median of those reporting a percentage 

is between 5 percent and 15 percent, 

which is below Westat’s estimate that 

23.9 percent of FMLA leave-takers took 

some of their leave intermittently. Other 

comments also reported percentages of 

intermittent FMLA leave lower than 

either Westat’s estimate or the 

Department’s estimate that about 2 

percent of all workers employed in the 

establishments covered by the FMLA 

took intermittent FMLA leave. For 

example: 

• According to the WorldatWork 

survey, 18.1 percent of FMLA leaves in 

2005 were due to chronic conditions. 

Doc. 10201A, at 11. 

• The AFL–CIO stated ‘‘in our survey 

just 12 percent of all respondents 

reported having taken intermittent 

leave. This finding supports that 

available evidence, which shows that 

‘intermittent leave is used 

infrequently[.]’ ’’ Doc. R329A, at 7. 

• One member company of the 

Manufacturers Alliance stated that 

intermittent leave ‘‘is rare and generally 

involves ongoing medical treatment[.]’’

This company ‘‘does not see a lot of 

intermittent leave—probably less than 

10 percent of all leave taken.’’ Doc. 

10063A, at 2. 

Many comments, however, reported 

intermittent FMLA usage above either 


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31Commenters used the terms ‘‘unscheduled’’

and ‘‘unforeseen’’ interchangeably. 

32For example, Randy Albelda, Heather Boushey, 

and Vicky Lovell noted that data from the Westat 

employee survey found that for the 27.7 percent 

who said they alternated between leave and work 

(question A5BB), more than half (53.3 percent) of 

that group indicated they did that for less than half 

of their leave (question A5C). Doc. 10223A, at 2–

3. This implies that nearly one-half (46.7 percent) 

used more than half of their leave intermittently. 

Given the comments that were received, certainly 

a significant amount of this intermittent leave was 

unscheduled. Id. 

the Westat or the Department’s 

estimates. For example: 

• The University of Washington 

reported ‘‘5% of employees are 

currently approved for intermittent 

FMLA leave.’’ Doc. FL17, at 2. 

• Honda reported that 2,249 

employees out of an employee 

population of 20,757 (about 11 percent) 

took a total of 22,250 days of 

intermittent FMLA leave in 2006. Doc. 

10255A, at 6. 

• NJ Transit reported that ‘‘fully 95 

percent of [FMLA] requests were for 

intermittent leave.’’ Doc. FL85, at 5. 

• Progressive Inc. reported that 75 

percent of its employees’ FMLA leaves 

are intermittent. Doc. FL2, at 2. 

• The Madison Gas and Electric 

Company reported that ‘‘[o]ver one-third 

of employees within our company 

request intermittent leave which is 

higher than the estimate determined by 

the Department.’’ Doc. 10288A, at 4. 

See also Delphi Inc, Doc. 10225A, at 2; 

Kalamazoo Human Resource 

Management Association, Doc. 10035A, 

at 2; HR Policy Association, Doc. 

R367A, at 3; Southwest Airlines Co., 

Doc. 10183A, at 3. 

Other comments show that 

intermittent FMLA leave usage varies by 

workgroup within some employers, and 

that using averages for intermittent 

FMLA usage across industries and 

operations within industries may hide 

the impact that FMLA usage has on 

some employers and some facilities/ 

workgroups within employers. For 

example: 

• Based on client comments, Spencer 

Fane Britt & Browne stated ‘‘[t]here are 

employers who report that they have as 

many as 40–50% or more of all their 

employees, and as much as 75–100% of 

employees within a particular work 

group or department, who have 

submitted medical certifications for and 

use intermittent leave for chronic 

conditions.’’ Doc. 10133C, at 19. 

• Southwest Airlines reported that 

‘‘[i]n the workgroup with the highest 

percentage of FMLA use in relation to 

[the] number of employees, 

Reservations, intermittent FMLA 

represents 75% of the FMLA leaves over 

the last two years[.]’’ Doc. 10183A, at 3. 

• The Manufacturers Alliance 

reported that one highly diversified 

member with eight business groups 

stated ‘‘that the percentage of FMLA 

leave taken intermittently within those 

groups has ranged from a low of 10 

percent to a high of 75 percent’’ with a 

company wide average of ‘‘40 percent to 

50 percent.’’ Doc. 10063A, at 3. 

See also MGM Mirage, Doc. 10130A, 

at 4; Briggs and Stratton, Doc. FL37, at 

1–2; and Association of American 

Railroads, Doc. 10193A, at 1. 

A number of other comments reported 

that intermittent leave usage is 

increasing. In some cases the reported 

increases are very large. For example: 

• DST Systems, Inc. stated that ‘‘[t]he 

burden of intermittent leave is steadily 

growing. The number of intermittent 

leaves at our company has grown almost 

300% in one year, from 71 in 2005 to 

221 in 2006.’’ Doc. 10222A, at 2. 

• Verizon provided the example of its 

Customer Financial Services Mass 

Market group where ‘‘the use of 

intermittent leave has increased from 

22% of eligible employees in 2004 to 

30% in 2005 and 37% in 2006.’’ Doc. 

10181A, at 4. 

• National Association of 

Manufacturers reported that ‘‘[f]or one 

major auto parts manufacturer * * * the 

use of intermittent leave increased five 

times more quickly than that for regular 

FMLA leave. Our data indicate that the 

experience of this company is typical of 

manufacturers.’’ Doc. 10229A, at 4. 

The fact that some employers have 

higher rates of intermittent FMLA leave 

use than the averages estimated by the 

Department is not surprising, especially 

in view of the self-selection of those 

who took the time to submit comments 

to the RFI. Moreover, it is noteworthy 

that the preponderance of companies 

responding to the survey conducted by 

the International Foundation of 

Employee Benefit Plans reported that 

less than 25 percent of FMLA leaves 

were taken intermittently. 

On the whole, the data presented 

above appear to be consistent with the 

ratios used by the Department to 

develop the estimates presented in the 

RFI, i.e., that about one quarter of FMLA 

leaves are taken intermittently. 

However, the Department believes that 

its estimate that about 1.5 million 

workers took intermittent FMLA leave 

in 2005 may be too low because the 

estimate of 1.5 million workers taking 

intermittent FMLA leave was based 

upon the estimate of 6.1 million workers 

taking FMLA leave and for the reasons 

discussed above (e.g., increased 

employee awareness), the 6.1 million 

estimate may be low. Moreover, the 

comments also suggest that more 

workers appear to be taking intermittent 

FMLA for chronic serious health 

conditions. 

F. Number of Workers Taking 

Unforeseen or Unscheduled Intermittent 

FMLA Leave 

The Department presented its 

estimate of the number of covered and 

eligible workers who took unscheduled 

intermittent FMLA leave in 2005 and 

asked for information and data on the 

approach it used to make the estimate, 

and for other available data that could 

be used to refine its estimate.31 The 

Department also requested comment on 

the prevalence, durations, and causes of 

intermittent leave. 

As noted in the RFI, the Department 

used the responses to Question A8a in 

Westat’s employee survey as a rough 

‘‘proxy’’ for the percentage of the 

employees who took unscheduled 

intermittent FMLA by assuming that the 

portion of the intermittent FMLA leavetakers who took unscheduled leave were 

the 45.4 percent that answered ‘‘As 

Needed’’ to Question A8a. Thus the 

Department estimated that about 

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

million) took unscheduled intermittent 

FMLA leave in 2005. 

In response to this request, the 

Department received a significant 

amount of data on the use of 

unscheduled intermittent FMLA leave 

from a wide variety of sources, 

including nationally representative 

survey data and detailed information 

from specific employers, both large and 

small, in a wide variety of industries. 

The Department also received a few 

comments on the data limitations with 

its approach and methodology for 

estimating intermittent FMLA leave 

usage. 

Although the Department did not 

receive significant comments on its 

method for estimating the number of 

workers who took unscheduled 

intermittent FMLA leave in 2005 (about 

12 percent of workers taking FMLA 

leave), the Department acknowledges 

that the uncertainty regarding this 

estimate is larger than that of the 

estimate of intermittent FMLA leave 

because data on taking leave as needed 

was used as a proxy for unscheduled 

intermittent leave. Moreover, it is 

important to note that many of the 

estimated 700,000 workers may take a 

number of unscheduled intermittent 

leaves depending on their chronic 

health condition.32

The Department did receive a 

significant amount of data on the 

number and percentage of workers who 


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33See Chapter IV. 

have taken unscheduled intermittent 

FMLA leave. Many commenters also 

used terms such as ‘‘certified for 

intermittent leave’’ or ‘‘leave taken 

intermittently for chronic conditions’’ to 

describe their data. For example: 

• The National Association of 

Manufacturers said that ‘‘respondents to 

the NAM’s survey’’ reported that 25 

percent of those eligible for FMLA leave 

had medical certifications on file for a 

‘‘chronic’’ illness that permitted 

unannounced, unscheduled intermittent 

leave. If only those workers used 

intermittent leave, manufacturers are 

experiencing a use of intermittent leave 

at nearly 8 times the national average!’’

Doc. 10229A, at 10. 

• Southwest Airlines noted that 

‘‘[m]ost of the intermittent leave at 

Southwest is also taken on an 

unscheduled basis, without advance 

notice by employees, particularly during 

the last five years.’’ Doc. 10183A, at 1. 

• New York City said that ‘‘[t]he use 

of FMLA leave, particularly 

unscheduled intermittent leave, by 

PCTs [police communication 

technicians] has increased substantially 

in the last five years, from 10.8% of all 

medical leave in 2001, to a high of 

39.6% of all medical leave in 2003, to 

the 2006 level of 27.0% of all medical 

leave.’’ Doc. 10103A, at 2. 

Other comments show that 

unscheduled intermittent FMLA leave 

usage varies with workgroups of some 

employers; these comments suggest that 

using averages for FMLA usage may 

hide the impact it has on some 

employers and some facilities/ 

workgroups within employers. For 

example: 

• The National Association of 

Manufacturers said that ‘‘[f]or one major 

manufacturer, a staggering 60 percent of 

all FMLA leave taken in the last nine 

months was for a period of one day or 

less. Nearly all of this leave was 

unscheduled, nearly all of it 

unannounced.’’ Doc. 10229A, at 10. 

• The University of WisconsinMilwaukee stated ‘‘[i]n one department 

alone, of 135 hourly blue-collar 

employees, 37 took FMLA during 2006, 

or roughly 27.4 percent. Of the 37 who 

used FMLA during 2006, 24 were on 

intermittent, unscheduled FMLA, or 

roughly 65 percent of those who used 

FMLA were on intermittent 

unscheduled FMLA.’’ Doc. 10098B, at 3. 

• The U.S. Chamber of Commerce 

provided several examples of 

workplaces where the large numbers of 

active FMLA certifications permit a 

significant portion of the workforce to 

take unscheduled FMLA leave. ‘‘Large 

companies reported having generally 15 

percent of the workforce with active 

medical certifications for FMLA at any 

time. Some employers reported 

extraordinary levels of active FMLA 

cases. * * * One employer reported 

certain facilities with 30 percent of the 

workforce classified as FMLA active. 

Another employer reported a call center 

where 50 percent of the workforce was 

classified as FMLA active.’’ Doc. 

10142A, at 2, n. 2. 

After reviewing the comments, it 

appears that the Department’s 

unscheduled intermittent FMLA leave 

estimates presented in the RFI—that 

about 700,000 workers took 

unscheduled intermittent FMLA leave—

may be too low for at least a couple of 

reasons. First, as noted in the previous 

section, the Department’s estimate of the 

number of workers who took 

intermittent leave in 2005 appears to be 

low. Second, the comments also suggest 

that a significant percentage of FMLA 

covered and eligible workers have 

medical certifications on file for chronic 

conditions that enable them to take 

unscheduled intermittent leave with 

little or no notice.33 Thus, it is likely 

that a significant portion of the 

estimated 6.1 million workers who took 

FMLA leave in 2005 (perhaps several 

million) took some form of intermittent 

leave and that many of the workers who 

took intermittent leave took at least 

some of it without prior notification. 

Finally, it is clear from the record and 

the comments received that if another 

nationwide survey of both employers 

and employees on the use and impact of 

FMLA is conducted in the future, it 

should do more than simply update the 

Westat surveys. The Westat surveys 

were not designed to inquire 

specifically about many of the issues 

currently being raised (e.g., the use of 

unscheduled intermittent FMLA leave); 

the definition of ‘‘intermittent leave’’

used by Westat did not match the 

statutory definition; and the Westat 

surveys did not collect data on medical 

certifications for chronic health 

conditions. 

G. The Economic Impact of FMLA Leave 

Previous congressional testimony, the 

2000 Westat Report, other surveys, and 

stakeholder meetings suggest that the 

FMLA has significant benefits and costs. 

Further, most surveys of workers and 

employers show that, while the FMLA 

has been generally effective in carrying 

out the congressional intent of the Act, 

some aspects of the statute and 

regulations have created challenges for 

both workers and employers. As was 

stated in the RFI: 

[T]he 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. 

The Department received additional 

support for this understanding in 

response to the RFI from both worker 

and employer groups. For example, the 

AFL–CIO noted that ‘‘[c]oupled with 

smaller, more recent studies, the 2000 

Westat Report shows that the FMLA, as 

implemented by the regulations, has 

worked as Congress intended.’’ Doc. 

R329A, at 1. Further, the National 

Association of Manufacturers stated that 

‘‘the FMLA has achieved its principle 

goal: leave to care for oneself or one’s 

family during health problems. * * * 

Yet there are a number of areas that 

continue to plague employers who are 

trying to provide the leave made 

available by law in a manner that is 

reasonable and cost-effective.’’ Doc. 

10229, at 3. 

Given this assessment, the 

Department presented Westat’s 

estimates of the impact that the FMLA 

had on productivity and profitability 

(see 71 FR 69513, Table 4), and asked 

a variety of questions intended to 

update and supplement data in the 2000 

Westat Report on the economic impact 

of the FMLA. Specifically, the 

Department asked for: 

• Data that would allow the 

Department to better estimate the costs 

and benefits of the FMLA. 

• 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? 

• Alternative information related to 

the different economic impacts that 

intermittent leave has on large 

employers compared to smaller 

employers. 

• Alternative information regarding 

any economic impact that recurring 

unforeseen, unscheduled, intermittent 

FMLA leave may have on covered 

employers, and on productivity and 

profits. 

• Information on the concentration of 

workers taking unscheduled, 

intermittent FMLA leave in specific 

industries and employers. 


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34 It should also be noted that the Regulatory 

Impact Analysis that accompanied the Department’s 

1995 final FMLA rule was based on 1987 and 1993 

General Accountability Office (GAO) reports that 

did not include the net cost associated with 

replacing workers or maintaining output while 

workers are on unpaid leave. Nor did it include the 

costs associated with intermittent or unforeseen 

intermittent leave for the GAO reports focused on 

‘‘extended’’ leave for birth or adoption of a child, 

a seriously ill child, a seriously ill parent, a 

seriously ill spouse, and temporary medical leave. 

35Presenteeism is where employees report to 

work when they are ill and perform below the 

employer’s expectations because they are not well. 

• Information on the factors 

contributing to large portions of the 

work force in some facilities taking 

unscheduled, intermittent 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? 

• 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? 

• Is there any evidence of employers 

closing or relocating facilities as a result 

of employee leave patterns (either 

scheduled or unscheduled)? 

The Department received many 

comments on some of these questions 

(e.g., the impact of the FMLA on 

employees’ morale, productivity and 

profits) and very few, if any, comments 

on others (e.g., the closing of plants due 

to the FMLA). Since the responses to 

many of the questions overlap, the 

Department decided to organize the 

findings presented below by topic rather 

than according to each question asked. 

1. Comments on the Department’s 

Approach on the Economic Impacts of 

the FMLA 

It was not the Department’s intention 

in the RFI to focus on just the impact 

that the FMLA regulations have on 

productivity and profitability. Rather, 

the intention was to supplement 

existing data and information on the 

wide variety of economic impacts that 

the FMLA is likely to have on both 

workers and employers, including 

productivity and profitability. Despite 

this, the Department received some 

criticism that it did not discuss nor 

solicit sufficient information to assess 

the overall financial impact of the 

FMLA on the economy. For example, 

some Members of Congress noted that 

there may be ‘‘unintended consequences 

that not only have an adverse effect on 

employers, they are equally harmful to 

employees[.]’’ Letter from 2 Republican 

Members of Congress, Doc. FL112, at 1. 

A more specific critique was submitted 

by Criterion Economics, which stated: 

[N]either the Westat survey nor the RFI itself 

provide an appropriate economic framework 

for assessing the costs of the FMLA. Both the 

Survey and the RFI focus on the effects of 

FMLA on the ‘‘profitability’’ and 

‘‘productivity’’ of firms. * * * [T]he costs of 

FMLA are likely borne to a significant extent 

by workers, in the form of reduced wages, 

higher unemployment, or both; and by 

consumers, in the form of higher prices. 

National Coalition to Protect Family 

Leave, Doc. 10172A, Attachment at 2. 

Darby Associates took another 

approach and used a standard economic 

welfare framework to assess the size, 

nature, and distribution of the Act’s 

benefits and costs and among 

individuals, and concluded their 

analysis with a deadweight economic 

loss estimate. They also noted that many 

FMLA benefits and costs are difficult to 

measure. See National Coalition to 

Protect Family Leave, Doc. 10172A, 

Attachment. 

Finally, the Office of Advocacy at the 

Small Business Administration (SBA) 

also noted that in 1995 the Department 

published a final rule that ‘‘improperly 

compared the number of covered small 

entities to the total number of small 

businesses, rather than calculating the 

number of small businesses that are 

covered by a rule that will suffer a 

significant economic impact.’’ 34 Doc. 

10332A, at 4. The SBA Office of 

Advocacy recommended a Section 610 

review that includes an evaluation of 

the ‘‘degree to which the technology, 

economic conditions, or other factors 

have changed * * * the area affected by 

the rule.’’ Doc. 10332A, at 3. 

2. Overall Impacts of the FMLA 

Although the intent of the RFI was not 

to provide a basis for estimating the 

entire impact of the FMLA on the 

economy, the Department did receive 

some comments about the overall 

impacts of the FMLA. These comments 

were generally divided into the costs 

and benefits resulting from the current 

implementation of the statute. The 

Department did not receive a single 

submission that attempted a 

comprehensive and detailed cost-benefit 

analysis. 

3. Overall Benefits of the FMLA 

The Department received many 

comments discussing the benefits to 

workers and employers of the FMLA in 

general as well as specific benefits that 

result from decreased costs to employers 

and the economy. These benefits 

include: The retention of valuable 

human capital, having more productive 

employees at work, lower long-run 

health care costs, lower turnover costs, 

lower presenteeism costs,35 and lower 

public assistance costs. 

Often these benefits are immeasurable 

and priceless. See also Chapter I. One 

worker perhaps said it best: ‘‘Last year, 

my husband was diagnosed with 

Hodgkin’s Lymphoma. * * * It was 

during this time that my husband 

needed me most. Had I not had the 

opportunity afforded to me by the 

FMLA, I don’t know what we would 

have done. I needed to be there to help 

him eat, take care of him when he was 

sick, consult with doctors and nurses, 

but most of all for mental and emotional 

support. He still says how important it 

was that I was with him at all times 

during this terrible experience. * * * 

FMLA allowed me to help my husband 

and not have to worry about job 

security.’’ An Employee Comment, Doc. 

4755, at 1. Clearly, ‘‘there is no denying 

the importance of fundamental benefits 

conferred by the Act on individuals.’’

National Coalition to Protect Family 

Leave, Doc. 10172A, Darby Associates, 

Attachment at 2. 

Although none of the commenters 

developed an overall estimate of the 

benefits of the FMLA, the comments 

generally characterized the major 

benefits to employers as reducing the 

cost of presenteeism and employee 

turnover. Additionally, there was a 

significant amount of anecdotal 

evidence presented on the benefits to 

the employees taking FMLA leave and 

their families. 

For example, one commenter noted 

that ‘‘[t]he Department should 

remember that there would be many 

hidden costs associated [with] 

weakening this law. Sick employees 

will report to work thereby infecting coworkers and further damaging 

productivity. People will not be able to 

provide adequate care for sick children 

and elderly parents. Nobody knows 

what such neglect might cost our 

economy.’’ An Employee Comment, 

Doc. 5438, at 1. 

4. Reduced Presenteeism Costs 

According to the Center for Worklife 

Law, ‘‘The cost of lost productivity due 

to presenteeism is significantly greater 

than the cost of lost productivity due to 

absenteeism. The total annual cost of 

lost productivity is $250 billion. 

Presenteeism accounts for $180 billion 

or 72% of that total. The availability of 


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36The Center for WorkLife Law’s reference for 

these estimates was Jodi Levin-Epstein, 

Presenteeism and Paid Sick Days, Center for Law 

and Social Policy (February 28, 2005), citing W. 

Stewart, D. Matousek, & C. Verdon, The American 

Productivity Audit and the Campaign for Work and 

Health, The Center for Work and Health, Advance 

PCS (2003). 

37The Center for WorkLife Law reference for this 

estimate was ‘‘The MetLife Caregiving Cost Study: 

Productivity Losses to U.S. Business,’’ MetLife 

Mature Market Institute and National Alliance for 

Caregiving, at 12 (July 2006). 

38 60 FR 2180. 

39See also footnote 34. 

intermittent FMLA leave incentivizes 

employees to stay home when they are 

seriously ill and reduces lost 

productivity expenses incurred by 

employers.’’ 36 Doc. 10121A, at 5. ‘‘Sick 

men and women do not add in a 

positive way to their working 

environment. What does happen is the 

population of the surrounding offices 

are exposed to increased risk of illnesses 

causing flu, colds and other seasonal 

illnesses to move more quickly and with 

a greater toll on our population in 

general.’’ An Employee Comment, Doc. 

4710, at 1. 

The estimates submitted for the 

record, such as the one cited above, 

already include a reduction in 

presenteeism due to the use of the 

FMLA as the studies were conducted 

well after the FMLA was enacted in 

1993. Although many commenters cited 

the overall costs of presenteeism and 

asserted that FMLA has some positive 

impact on limiting those costs, no one 

attempted to quantify the marginal 

effect or economic impact that 

enactment of the FMLA had on the 

issue. However, the lack of a 

quantitative estimate does not mean that 

the FMLA does not have an impact on 

presenteeism. Clearly, the FMLA has 

allowed workers to take leave and not 

work when they are suffering from a 

serious health condition that is 

contagious. On the other hand, it is also 

evident that workers with contagious 

illnesses still come to work for a variety 

of reasons. 

5. Increased Employee Retention and 

Lower Turnover Costs 

The Department received many 

comments emphasizing the positive 

impact the FMLA has on employee 

morale and how it increases worker 

retention and lowers turnover costs. By 

reducing employee turnover, some 

commenters argued that the FMLA 

reduces employer costs. 

For example, the Human Rights 

Campaign noted that ‘‘[t]he 2000 Westat 

Study found that 89% of employers 

reported that the FMLA has had either 

a positive or neutral effect on employee 

morale. The survey also reported that, of 

those who have taken on added duties 

when a co-worker has taken FMLA 

leave, over four in five (85%) say the 

impact on them was neutral or 

positive.’’ Doc. 10179A, at 2. The Center 

for Law and Social Policy cited ‘‘[t]he 

1995 Commission on Leave report [that] 

found that 10.9 percent of leave-takers 

who are not covered by FMLA fail to 

return to the same employer after taking 

leave, compared to only 1.9 percent of 

workers who are covered.’’ Doc. 

10053A, at 2. Finally, Local 2026 of the 

American Federation of Teachers 

concluded, ‘‘[t]he law promotes 

workforce stability by helping 

employees retain their jobs when an 

emergency strikes. We believe the 

FMLA is essential to greater employee 

retention and to reducing employee 

turnover, and it is crucial to preserve 

FMLA’s protections in their entirety.’’

Doc. 10242A, at 8. 

A survey of AARP members suggests 

that the FMLA also increases the supply 

of labor. When FMLA leave-takers in its 

survey ‘‘were asked to speculate about 

the steps that they would have taken if 

they had not received FMLA leave, 

approximately one in ten (11%) 

indicated that they would have had to 

quit their job or would have lost their 

job[.]’’ Doc. 10228B, at 4. 

Notably, the Center for WorkLife Law 

tried to quantify some parameters of the 

impact the FMLA has on worker 

retention. ‘‘Employers also profit from 

the availability of intermittent leave. 

* * * [T]he total estimated annual 

replacement cost to employers 

associated with caregiver attrition is 

$6,585,310,888. Without FMLA leave, 

attrition among employed caregivers 

would increase even more sharply.’’ 37

Doc. 10121A, at 5. 

However, other commenters noted 

that while some uses of FMLA leave 

(e.g., for a medical emergency, the birth 

of a child, to receive medial treatment 

or therapy) are good for employee 

morale, the repeated use of unscheduled 

FMLA leave by some employees can 

actually have the opposite effect. See 

Chapter IV, for a more complete 

discussion. 

6. Other Benefits 

A number of workers also submitted 

comments that either explicitly or 

implicitly identified other important 

benefits of the FMLA, such as having 

more productive employees at work, 

lower long-run health care costs, 

retaining valuable human capital, and 

lower public assistance costs. For 

example, 

• ‘‘Because of the Act our team is still 

complete and productive * * * the 

Family and Medical Leave Act not only 

keeps productive teams together in the 

long run, but it fosters loyalty to the 

corporation not only for those who take 

part in family leave, but for those who 

respect the support of their colleagues. 

It is a small investment by the 

corporation for a long term benefit.’’ An 

Employee Comment, Doc. 4858, at 1–2. 

• ‘‘Having a parent available to care 

for a sick child has proven benefits in 

shortened recovery times and better 

health and school outcomes.’’ 9 to 5, 

National Association of Working 

Women, Doc. 10210A, at 1. 

• ‘‘Because of being able to take time 

off for treatment and retain my job, my 

company was able to retain valuable 

expertise.’’ An Employee Comment, 

Doc. 234, at 1. 

• ‘‘If it were not for FMLA, my family 

and I would be living in a box under a 

bridge somewhere * * * if it were not 

for my employer being understanding 

and supporting FMLA, [I would] be 

another statistic of the unemployed in 

the United States.’’ An Employee 

Comment, Doc. 5006, at 1. 

Clearly the FMLA has resulted in 

significant benefits for employers, their 

employees and the public. Employers 

benefit from reduced turnover and 

decreased presenteeism. Workers 

benefit from being able to take leave to 

care for themselves and family members 

with serious health conditions without 

fear of losing their jobs. Society benefits 

from the increased supply of trained 

workers and the reduced need for public 

assistance. The fact that these benefits 

have not been quantified or expressed in 

monetary terms by any of the 

commenters should not be taken as an 

indication that these benefits are not 

substantial. 

7. Overall FMLA Compliance Costs 

Some commenters cited a 1995 

Department of Labor cost estimate 38 and 

a 2004 study by the Employment Policy 

Foundation that estimated the cost of 

the FMLA. For example, the SBA Office 

of Advocacy stated: ‘‘In 1995, DOL 

estimated that the cost to all business 

from the FMLA [was] $675 million 

annually, but only computed the costs 

of maintaining group health insurance 

during periods of permitted absences. In 

contrast, a study by the Employment 

Policy Foundation (EPF) estimates that 

the direct costs [of] FMLA leave to 

employers was $21 billion in 2004 in 

terms of lost productivity from 

absenteeism, continued health benefits, 

and net labor replacement costs.’’ 39

Doc. 10332A, at 3–4. The EPF estimates 

were based upon the direct compliance 


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40See also Chapter IV. 

41Similarly, epidemiologists might find a 

problem due to the cluster of an illness in a specific 

locality or demographic group, even if the average 

incidence in the general population is low. 

Therefore, it is not sufficient to only examine the 

average impact on employers. It is also necessary 

to examine the impact on employers experiencing 

problems to determine if there is some pattern 

involved. 

42 Janemarie Mulvey, 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). 

costs of the firms responding to a 

membership survey. 

The Department received one 

economic study from Darby Associates 

that assessed the impact of the FMLA on 

the economy ‘‘based on a review of data 

and analysis available after a decade of 

experience under the Act.’’ National 

Coalition to Protect Family Leave, Doc. 

10172A, Attachment at 1. ‘‘The paper 

concludes that much of the cost of 

implementation of the Act is effectively 

a ‘‘dead weight’’ economic loss that 

reflects economic waste and confers 

very limited benefit on all but a few 

stakeholders. These deadweight losses 

are estimated to be in excess of $30 

billion annually[.]’’ Id. Darby Associates 

developed their estimate by adding $11 

billion in indirect costs from a 2001 

National Association of Manufacturers 

survey to the $21 billion direct costs 

estimate by EPF. 

Darby Associates also identified a 

number of FMLA-related costs that they 

did not attempt to separately estimate: 

these include the loss of productivity, 

increased administrative and personnel 

costs, overtime pay, decreases in quality 

and safety, and costs imposed on 

customers and other employees. 

National Coalition to Protect Family 

Leave, Doc. 10172A, Attachment at 15. 

Darby Associates went on to note that 

‘‘[m]any of the costs of leave, especially 

intermittent leave, are experienced in 

ways that defy measurement ‘‘ lost 

opportunities by employers as well as 

impacts on other employees in the 

workplace, including stress, 

inconvenience, loss of morale and 

workplace effectiveness.’’ Id., Doc. 

10172A, Attachment at 13–14. 

A primary finding of Criterion 

Economics’ analysis is that ‘‘the costs of 

FMLA are likely borne to a significant 

extent by workers, in the form of 

reduced wages, higher unemployment, 

or both; and by consumers, in the form 

of higher prices.’’ National Coalition to 

Protect Family Leave, Doc. 10172A, 

Attachment at 2. See also id., Doc. 

10172A, Darby Associates, Attachment. 

8. Summary of the Overall Benefits and 

Costs of the FMLA 

The available evidence appears to 

support the conclusion that both the 

costs and benefits of the FMLA are large 

and difficult to quantify. 

The overall weight of the comments is 

that the FMLA has had immeasurable 

benefits for millions of workers and has 

imposed significant costs on the 

economy. The records shows it has 

likely increased the supply of labor and 

reduced employer costs by enabling 

employees to remain in the work force 

in the face of serious health conditions, 

but its costs are borne by individuals as 

consumers, workers, and economic 

stakeholders. 

As explained in earlier chapters, 

numerous comments that the 

Department received in response to the 

RFI confirm that the greatest challenge 

for employers associated with the 

FMLA, and its most significant 

economic impacts, stem primarily from 

the unscheduled intermittent leave 

portion of the FMLA.40

Finally, the Department believes that 

it would be difficult, with any precision, 

to differentiate the impact that the 

FMLA has had on the supply of labor, 

wages and prices from other changes 

that have occurred over the last 14 

years. Similarly, it is not possible, with 

any precision, to estimate what the labor 

turnover rates or the cost of 

presenteeism would be without the 

FMLA. 

H. Comments on the 2000 Westat 

Report’s Findings on the Impact 

Intermittent FMLA Leave Has on 

Productivity and Profitability 

The Department received many 

comments quoting sections of the 2000 

Westat Report that suggest intermittent 

FMLA leave generally is not a problem 

for employers. For example, Local 2026 

of the American Federation of Teachers 

stated, ‘‘[t]he 2000 Westat Study found 

that 81% of covered establishments 

reported that intermittent leave had no 

impact on business productivity, and 

94% reported that intermittent leave 

had no impact on business 

profitability.’’ Doc. 10242A, at 6. 

Similarly, the Women’s City Club of 

New York stated, ‘‘[r]esearch shows that 

the FMLA has been beneficial to 

business. A United States Department of 

Labor employer [survey], released in 

2000, found that 9 in 10 covered 

employers report that the FMLA has a 

positive or neutral effect on productivity 

and growth.’’ Doc. 10003A, at 2. 

Similarly, a 2007 Society for Human 

Resource Management survey found 

that 71 percent of respondents reported 

no noticeable effect on productivity. See 

Doc. 10154A, Attachment at 4. 

However, in the Department’s view, the 

fact that many employers responding to 

a survey did not experience problems 

does not mean that the FMLA does not 

have a significant impact on the 

productivity and profits of a number of 

other employers in certain industries 

and sectors of the economy. As was 

noted by Criterion Economics, ‘‘[c]ritical 

aggregate statistics in the Westat Survey 

are constructed by averaging across all 

industries. Reliance on simple averages 

disguises the fact that certain sectors 

incur disproportionately high costs as a 

result of FMLA compliance, and hence 

leads to estimates that are biased 

downward.’’ National Coalition to 

Protect Family Leave, Doc. 10172A, 

Attachment at 19. 

In other words, just as certain 

employers reported higher FMLA leave 

use in response to the RFI than the 

average estimated by the Department, 

some employers are likely to incur 

higher costs than the ‘‘average’’ firm 

responding to Westat’s employer survey. 

If these high costs are clustered in 

specific industries or types of work, 

then the FMLA could impose significant 

costs for those clusters of employers 

while the average number of employers 

may have reported relatively lower 

costs.41

Other comments cited the 2004 study 

by the Employment Policy Foundation 

(EPF) 42 referenced in the RFI as 

evidence that there are significant costs 

incurred by some firms in some 

industries. For example, The Equal 

Employment Advisory Council stated: 

While the 2000 Westat Report * * * 

suggests little, if any, burden associated with 

administering FMLA leave, we believe the 

Report does not accurately reflect the level of 

difficulty some employers have experienced 

in attempting to comply with the current 

FMLA regulations. Many EEAC members 

participated in a separate survey of 431 large 

corporations conducted by the Employment 

Policy Foundation in 2002. Of the 94 

companies that responded, the vast majority 

reported that intermittent leave has been a 

problem to administer (87.2%). * * * Most 

of the respondents who were able to quantify 

the cost of complying with the regulatory 

FMLA recordkeeping and notification 

requirements reported a moderate to 

significant cost burden, with annual 

estimated costs per employer ranging from 

$213,188 to $1.3 million, excluding employer 

costs for complying with other existing 

federal recordkeeping and reporting 

requirements. 

Doc. 10107A, at 2–3. 

Moreover, as was noted in the RFI, 

Westat found that establishments with 

more than 250 employees experienced 

greater negative impacts on productivity 


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43See Joan C. Williams, One Sick Child Away 

From Being Fired: When ‘‘Opting Out’’ Is Not an 

Option, University of California, Hastings College of 

the Law, 2006, at 31. 

and profits than smaller establishments 

covered by the Act. Criterion Economics 

presented an analysis stating that ‘‘[i]n 

reporting its results, the Westat survey 

weights the results by the number of 

establishments, a weighting scheme that 

biases the overall results in favor of 

responses provided by small 

establishments, as there are far more 

small firms than large firms in the 

United States. *** weighting the Westat 

survey results by employment has a 

large effect on the reported impact.’’

National Coalition to Protect Family 

Leave, Doc. 10172A, Attachment at 14–

15. 

I. Impact of Unscheduled Intermittent 

FMLA Leave 

As discussed in Chapter IV, the 

Department received a variety of 

comments regarding the impact of 

unscheduled intermittent FMLA leave. 

At the same time, notice issues 

notwithstanding, comments from 

employees demonstrate that it is the 

unpredictable nature of certain serious 

health conditions that makes the use of 

intermittent leave invaluable. 

Representative of many employer 

comments, the National Business Group 

on Health described the impact of 

unscheduled FMLA leave this way: 

Unscheduled leave presents different 

problems than scheduled FMLA leave 

because of the lack of advance notification 

and unpredictability of the employee’s time 

away from work. Furthermore, it creates 

significant problems if the employer cannot 

obtain adequate staffing. Additionally, the 

need for overtime or temporary personnel 

increases operating costs. With unscheduled 

leave, employers cannot give advance notice 

of the need for overtime to those employees 

who must fill in for the employees on FMLA 

leave, negatively affecting employee morale. 

Scheduled FMLA leave, on the other hand, 

gives the employer a better opportunity to 

plan, though it still raises operating costs. It 

allows an employer time to obtain coverage 

during an employee’s absence from the 

employer’s own staff pool and to administer 

the FMLA leave in a timely manner. Also, the 

other employees who fill in for colleagues on 

FMLA can better plan their overtime. 

Doc. 10268A, at 2. See also South 

Central Human Resource Management 

Association, Doc. 10136A, at 7. 

However, the Women’s Employment 

Rights Clinic at Golden Gate University 

School of Law provided this view of the 

benefits to workers of intermittent 

FMLA leave: 

Intermittent and reduced schedule leaves 

are central to employees’ ability to balance 

work and family. * * * the opportunity to 

take leave in limited increments is extremely 

important to workers. In the case of one’s 

own medical needs, intermittent and reduced 

schedule leave allow employees to continue 

working while undergoing medical 

treatments that require only partial absence 

from work. This not only gives the employee 

the opportunity to continue earning wages, 

but also to continue as an active participant 

in the workforce * * * For those who need 

only partial leave for care of a family 

member, such flexible leave arrangements 

give the worker the opportunity to maintain 

much needed earning capacity during 

periods of increased medical and caretaking 

expenses. 

Doc. 10197A, at 6. 

Keeping workers with chronic 

conditions employed not only benefits 

the workers themselves but also benefits 

society in the form of reduced public 

assistance payments. For example, one 

worker stated: 

Without [the FMLA], I would have surely 

missed mortgage payments, car payments 

and my paycheck would definitely not have 

been enough to provide groceries for the 

family. The end result would be a damaged 

credit history in which my family and I 

would suffer paying higher costs of insurance 

and other means of credit, suffering for years 

and years, causing unresolved debt hanging 

over our heads. Not to say the least, without 

this protection, I probably would have lost 

my job and all its benefits due to the missed 

time at work. 

An Employee Comment, Doc. 2666, at 1. 

Another worker stated: 

My experience with the Act has been 

extensive as I used both intermittent and 

continuous leaves to care for my elderly 

mother * * * . Without this important 

benefit * * * [o]ur only alternative was to 

deplete Mother’s assets and apply for 

Medicaid which would put the financial 

responsibility of her care on the Federal 

Government. With this Act we feel we were 

able to accomplish our goals and avoid 

shifting the burden of care to the government. 

An Employee Comment, Doc. 4720, at 1. 

On the other hand, as explained in 

Chapter IV, many comments indicate 

that unscheduled intermittent FMLA 

leave is difficult for employers because 

employee absences can be unpredictable 

and occur with little or no notice. 

However, it is precisely the 

unpredictable nature of many serious 

health conditions that makes the ability 

to take unscheduled intermittent FMLA 

leave so important for employees.43

J. Impact of Unscheduled Intermittent 

FMLA Leave on Productivity and 

Profitability 

Although employer comments suggest 

that unscheduled intermittent leave is a 

problem, others pointed to data from the 

national surveys that suggest 

intermittent FMLA leave is not a 

significant problem. Two types of data 

were submitted as evidence that 

employers are overstating the impact of 

intermittent FMLA leave: data on 

productivity and profits, and data on the 

use of intermittent FMLA leave. 

For example, the AFL–CIO stated: 

[A]lthough intermittent leave has now 

become a focal point of employer complaints 

about the FMLA, in our survey just 12 

percent of all respondents reported having 

taken intermittent leave. This finding 

supports that available evidence, which 

shows that ‘‘intermittent leave is used 

infrequently and has imposed minimal 

burdens on employers.’’ Anne Wells, Note, 

Paid Family Leave: Striking a Balance 

Between the Need of Employees and 

Employers, 77 S. Cal. L. Rev. 1067, 1081 & 

nn.94–98 (2004). In fact, Westat found that 

‘‘[a]bout a fourth of leave-takers (27.8%) had 

at least one intermittent leave during the 

[2000] survey reference period.’’ 2000 Westat 

Report at 2–18. 

Doc. R329A, at 7–8. 

As was noted previously, the use of 

averages tends to minimize the impact 

on some employers. The fact that 

relatively small averages of workers in 

the Westat employer survey and the 

AFL-CIO survey used intermittent 

FMLA leave may obscure the fact that 

some employers in some industries or 

workgroups are experiencing disruptive 

rates of unscheduled intermittent leave 

use. 

Moreover, some commenters 

indicated that the use of unscheduled 

intermittent FMLA leave by a few 

workers can significantly disrupt the 

operations of their employers depending 

on their positions, duties, and the type 

of work being performed. As one HR 

manager stated, the regulatory 

‘‘definition of ‘key employee’ * * * has 

to do with income level. The reality is 

our transit drivers are key employees 

because without them, the bus does not 

run. So I think I would change the 

definition of what is ‘key’. A policeman 

is key. A fireman is key. A transit driver 

is key.’’ Doc. 2627A, at 3. ‘‘[M]any 

positions only have one person or one 

person per shift in a job class. When this 

person is absent for any reason, specific 

duties do not get carried out for the 

company.’’ Infinity Molding & 

Assembly, Doc. 5192A, at 1. 

Some commenters asserted that the 

problems being cited by the employers 

result more from management practices 

than the FMLA. For example: 

• Cummins Inc. noted, ‘‘[i]t has been 

our experience that facilities that 

maintain stringent attendance 

management policies often experience 

the highest number of FMLA 

intermittent leave requests.’’ Doc. 

10340A, at 2. 


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• Madison Gas and Electric Company 

stated ‘‘[t]he belief that unscheduled, 

intermittent FMLA is increased due to 

poor management and labor-relations 

issues is valid. Employees may 

concentrate on chronic health issues 

more heavily if their work situation is 

not fulfilling or becomes difficult. It is 

very interesting when reviewing FMLA 

leave data to see an employee with a 

certain condition taking large amounts 

of intermittent, unscheduled FMLA 

leave and another with the same 

condition taking very little time.’’ Doc. 

10288A, at 5. 

As mentioned in Chapter IV, other 

comments indicate that certain 

provisions in collective bargaining 

agreements (CBAs), in conjunction with 

the FMLA, may provide an opportunity 

for employees to work particular times 

or shifts, and avoid others. These 

include: (1) provisions that provide that 

bargaining unit workers can receive 

premium pay (e.g., for working a 

holiday or a particular shift) without 

having to complete a 40 hour work 

week; and, (2) provisions that workers 

have to be paid a full day of pay 

regardless of the actual amount of time 

they are at work. For example: 

• ‘‘Common practice is to take FMLA 

through the week but work on the 

weekends at 1.5 to 2.0 [times] the 

salary.’’ A Human Resource Manager 

Comment, Doc. 4917, at 1. 

• ‘‘We even had one individual 

during our busy period of time (where 

overtime was abundant) come in four 

hours before the start of their shift (2 

hours at double time and 2 hours at time 

and one half) and then at the start of 

their regular shift go home [on] FMLA. 

In that way she would earn seven (7) 

hours of pay and leave while not 

working the shift (2nd shift) that she 

hated.’’ An Employee Comment, Doc. 

6A, at 4. 

• ‘‘Take, for example, a Yardmaster 

who frequently calls in at the start of his 

or her shift stating [that] he or she will 

be using * * * intermittent FMLA 

leave. * * * Under the Yardmaster 

collective bargaining agreement, 

Yardmasters cannot work part of a shift 

and if a replacement is called, the 

replacement must be paid for the entire 

shift regardless of how long he or she is 

needed. Thus, the absent employee may 

say he or she only needs two hours of 

FMLA leave and is charged accordingly 

but ends up with eight hours off from 

work because the replacement works the 

entire shift. * * * Another similar 

scenario is presented when an 

employee’s health care provider 

indicates he or she cannot work more 

than four hours per day, for example, 

due to exhaustion * * * Again, a 

replacement must be called and paid for 

the entire shift under the labor 

contract.’’ Union Pacific Railroad, Doc. 

10148A, at 8. 

• ‘‘Due to the ‘no penalty’ clause in 

FMLA, absent employees acquire ‘super 

seniority’ in many cases. For example: 

Our labor agreement allows us to deny 

holiday pay under certain conditions. 

Although the entire workforce is 

covered under the labor agreement, 

FMLA privileges afford special 

treatment to employees absent for 

FMLA reasons.’’ Interbake Foods, Doc. 

10012A, at 2. 

• ‘‘In the railroad industry, workers 

from the railroad’s pool or extra board 

are called in roughly two or three hours 

before they are needed (as prescribed in 

the pertinent labor agreement). 

Unfortunately, a railroad worker so 

inclined can use the existing regulatory 

scheme to repeatedly use very small 

increments of FMLA leave to avoid 

unwanted assignments—disrupting 

railroad operations and unfairly 

impacting his or her co-workers. For 

example, a worker could call in to the 

railroad at 1 a.m. and take FMLA leave 

(e.g., for a chronic migraine), thereby 

preventing the railroad from assigning 

him or her to a 3 a.m. train run (or 

whatever assignment that worker may 

find unpleasant). That same worker can 

then call back a short period later (as 

soon as the worker feels that he or she 

has safely avoided that assignment), 

knowing that he or she would be 

assigned a later train run—thus 

obtaining a more favored assignment[.]’’

Association of American Railroads, Doc. 

10193A, at 6. 

K. Specific Industries Report 

Difficulties With Unscheduled FMLA 

Leave 

Some industries, and operations 

within industries, may have more 

problems with employees’ use of 

unscheduled FMLA leave than others. 

‘‘[E]conomic theory and empirical 

research indicate that the costs of 

absenteeism vary depend[ing] on the 

characteristics of firm production 

functions.’’ National Coalition to Protect 

Family Leave, Doc. 10172A, Criterion 

Economics, Attachment at 18. ‘‘A 

regulation that reduces labor 

productivity, for example, will have a 

larger impact on economic welfare in 

industries where production requires 

‘fixed proportions’ of capital and labor 

(e.g., air transport, which requires at 

least one pilot and one co-pilot per 

airplane) than in industries where 

capital can easily be substituted for 

labor.’’ Id., at 6. Further, ‘‘[i]n some 

industries, employee absenteeism will 

have a relatively small effect on firms’

overall ability to operate, and therefore 

entail a relatively modest financial 

impact. In other sectors, absenteeism 

hinders production substantially by, for 

example, diminishing the productivity 

of other workers and equipment.’’ Id., at 

8. 

The RFI record suggests that 

intermittent FMLA leave can have 

significant impacts on time-sensitive 

business models. For example, the 

United States Postal Service reported 

‘‘[i]n a time-sensitive environment 

* * * unscheduled leave presents 

significant operational challenges.’’ Doc. 

10184A, at 9. The United Parcel Service 

stated ‘‘employers typically can arrange 

coverage for an employee who might 

require intermittent leave to take his 

mother to regularly scheduled * * * 

treatments. However, it is a huge burden 

for management to cover for an 

employee who is certified for 

intermittent leave for chronic * * * 

[conditions] and who calls in with no 

advance notice * * * especially in 

time-sensitive / service-related 

industries.’’ Doc. 10276A, at 5. 

In many situations, the absence of just 

a few employees can have a significant 

impact. For example, ‘‘[w]ith respect to 

unscheduled intermittent leaves, some 

employers find they have to over staff 

on a continuing basis just to make sure 

they have sufficient coverage on any 

particular day (such as hourly positions 

in manufacturing, public transportation, 

customer service, health care, call 

centers, and other establishments that 

operate on a 24/7 basis). Some 

employers are required to work 

employees overtime to cover the absent 

employee’s work. Both of these options 

result in additional costs[.]’’ Spencer 

Fane Britt & Browne LLP, Doc. 10133C, 

at 19. 

The Department also received many 

comments discussing the benefits that 

FMLA leave has for workers in these 

industries, and some of the issues 

employees face trying to take FMLA 

leave in these industries. See Chapter 

XI.H.3; see also Chapter I. As noted 

earlier, often these benefits are 

immeasurable and priceless. Although 

they will not be repeated here, they 

should be taken into account. 

Comments received in response to the 

RFI suggest at least four types of 

business operations appear to have 

particular difficulty with unscheduled 

intermittent FMLA leave: (1) Assembly 

line manufacturing; (2) operations with 

peak demand; (3) transportation 

operations; (4) and operations involving 

public health and safety. 


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1. Assembly Line Manufacturing 

One commenter explained, if a single 

worker is missing or has to leave, the 

line may have to be shut down until a 

replacement arrives. 

My company is a manufacturing facility 

* * * Unfortunately, the production process 

is often slowed down or brought to a halt 

when an employee is out on FMLA. Not all 

of our product lines have employees crosstrained to work there. Intermittent FMLA 

affects the employee’s productivity if they are 

not able to work a full day to produce the 

product needed to meet the customer 

demands. Employees often do ‘‘double duty’’

to cover a team member who is out on FMLA, 

which in turn causes stress and feelings of 

resentment. 

Cooper Bussmann, Doc. 247, at 1. 

The National Association of 

Manufacturers summarized the problem 

for U.S. manufacturers in this way. ‘In 

the ‘24/7’ environment of modern 

manufacturing, a night shift only makes 

sense when the day shift is fully staffed 

to take up and continue their efforts. 

Manufacturing and shipping schedules 

can be met only when staffing 

requirements can be predictably and 

reliably filled. But making sense of 

personnel requirements and scheduling 

needs has been made significantly more 

difficult by the current interpretations of 

the FMLA by the DOL[.]’’ Doc. 10229A, 

at 3. 

Some comments said that problems 

such as those reported above are merely 

scheduling issues and are not really 

problems with the FMLA, and that 

employers should expect some workers 

to be absent each day and should hire, 

staff, and schedule accordingly. For 

example, the Center for WorkLife Law 

stated that ‘‘[e]mployers should not rely 

on co-workers to cover for absent 

employees as a matter of course. Rather, 

co-workers should be used to pick up 

the slack when no other option is 

available. Most employees will need to 

take FMLA leave at some point during 

their career, and good management 

practices dictate that employers 

recognize this eventuality and plan for 

it.’’ Doc. 10121A, at 7. 

Employer commenters had a different 

view. 

Given the need for U.S. manufacturers to 

control costs and compete in a global market, 

we do not have the luxury of having a ‘pool’

of surplus employees to cover for unplanned 

absences. Six to seven years ago we were able 

to have a few employees in a floater pool for 

flexibility, but [with] the utilization of lean 

manufacturing techniques [that enables] us to 

compete with foreign competition, we no 

longer have those ‘extra’ employees. I know 

most, if not all, of the manufacturing people 

that I interact with in our State no longer 

have this luxury. 

Ed Carpenter, Human Resources 

Manager, Tecumseh Power Company, 

Doc. R123, at 1. 

Companies with production lines have no 

useful work for an employee who reports to 

work a few hours late. For example, a 

manufacturing facility begins its production 

line at the start of the shift. Within the first 

hour or two of the shift, the company needs 

to fill all job positions so that the production 

line can begin operations. An employee with 

a chronic condition * * * has an episode 

that causes him to take 2–4 hours of 

unscheduled FMLA leave * * * By the time 

the employee reports to work * * * all jobs 

on the production line have already been 

filled and there is no work for the employee. 

If the employee is permitted to ‘bump’ the 

person assigned to do his tasks, then the 

employer is still left with another employee 

with nothing to do. 

Clark Hill Inc, Doc. 10151A, at 2. 

Honda’s comments indicate that 

employers could incur substantial costs 

even when there are floaters available to 

keep the line moving. 

[B]ecause all work stations must be 

covered in assembly-line manufacturing, 

employers must have extra workers to cover 

possible unscheduled, intermittent leave 

* * * Such absences increase the costs of 

manufacturing by increasing the number of 

extra employees who have no regular work 

but are ‘‘floaters’’ to cover for unscheduled 

absences * * * Furthermore, because those 

‘‘floaters’’ or ‘‘fill-in’’ workers are not as 

experienced or knowledgeable, they may not 

be able to keep up with the normal pace 

* * * Because they move from department to 

department depending upon the need, they 

cannot be expected to have proficiency of an 

associate regularly assigned to that process. 

Therefore, production units may be lost, and, 

to make up for the lost units, the whole 

department or shift may have to work 

overtime. The employees in attendance are 

inconvenienced, and the employer has 

incurred increased costs for the same number 

of units. 

Doc. 10255A, at 4–5. 

2. Operations With Peak Demand 

Commenters noted that in contrast to 

assembly line manufacturing, some 

operations primarily experience 

problems with unscheduled intermittent 

FMLA leave during their periods of 

peak demand. At other times, such leave 

can be more easily accommodated. Two 

examples are electric utilities during 

power outages, and call centers. 

Although power interruptions are, in many 

cases, unavoidable, Exelon’s customers 

expect the restoration of power as quickly 

and safely as possible. Indeed, in some cases, 

a customer’s safety and wellbeing are 

dependent upon the prompt restoration of 

service. * * * The nature of Exelon’s 

business requires employees to work 

overtime, particularly employees who are 

responsible for restoring electrical service to 

customers or who are responsible for 

responding to customer inquiries regarding 

electrical service. When employees with 

these duties are unable to work overtime 

[because of FMLA medical certifications], 

their co-workers have to pick up the burden 

* * * Simply put, when a customer is 

without power in the middle of the night, 

Exelon does not have the option of deciding 

to restore the customer’s power the next 

morning, when the employee needing FMLA 

leave from overtime is able to come to work. 

Exelon, Doc. 10146A, at 1 and 3. 

Our company has several divisions, with 

the one being impacted the most by FMLA 

our call center. The call center is staffed by 

call volume and based on the expected 

minutes of an employee’s time on the phone 

during a shift. Intermittent FMLA in this 

division causes problems with phone 

coverage. This frequently means that we 

* * * have to offer overtime to employees 

who will cover someone’s shift (whenever 

enough notice is given), resulting in 

increased wage expenses. Another scenario is 

that our service level agreements with our 

customers suffer the consequences of our 

center being understaffed. This has a more 

long-term effect that may result in our 

customers not renewing contracts with our 

call center. 

Leslile Masaitis, Doc. 224, at 1. 

Moreover, it is impossible to calculate or 

repair the loss of goodwill that results from 

frustrated customers who are kept waiting for 

[call center] service and from disappointed 

customers whose needs remain unmet 

because of the absences. In one office, in one 

month alone in 2006, intermittent FMLA 

absence resulted in over 8,900 unanswered 

calls. 

Verizon, Doc. 10181A, at 4. 

3. Transportation Operations 

The Department received a number of 

comments indicating there are unique 

FMLA issues for the transportation 

industry. Typically, the plane, bus, or 

train cannot leave until the crew is 

present. Many commenters pointed out 

that any delay in staff can result in a 

delay that inconveniences many 

passengers and customers. Moreover, if 

the individual taking FMLA leave 

arrives after the departure, there may be 

no work for that individual for several 

hours. 

Our customers depend on us to get them 

to work, school or medical appointments on 

time. When drivers are late to work * * * 

their route must quickly be given to another 

driver, and the bus must get out on the road. 

This can mean that a busload of people is 

late. * * * Employers in time-sensitive 

industries such as public transportation 

whose existence depends on being able to 

make pull-out (getting the buses out on the 

road, particularly at peak ridership times); 

arriving at destinations on time; meeting up 

with other buses on schedule, etc., are really 

in a bind when an employee can circumvent 

rules by calling in to the dispatcher and 


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simply saying ‘‘I’m running late because of 

FMLA.’’

Metro Regional Transit Authority, 

Akron, Ohio, Doc. 10118A, at 1. 

Unforeseen, intermittent FMLA leave is not 

only having a negative impact upon our 

operations, but also upon our customers, the 

general public. When bus operators report off 

work, in many instances, at the last possible 

moment, a bus may be late or not show at 

all. Additionally, extra operators must be 

scheduled to work in anticipation of 

coworkers calling off work. These costs are 

critical to nonprofit organizations that rely, to 

some degree, upon government funding. The 

current provisions for intermittent leave 

present a significant burden to scheduledriven operations. 

The Port Authority of Allegheny 

County, PA, FL135, at 2. 

Three workgroups represent 82% of all 

FMLA leave at Southwest and each of them 

has operational job responsibilities: Ramp, 

Operations and Provisioning Agents; 

Reservations Sales Agents; and Flight 

Attendants * * * When these employees 

take FMLA, it directly impacts Southwest’s 

ability to operate our published flight 

schedule, much less on time and with 

efficiency. When these employees are absent, 

flights do not take off without another 

employee taking their place * * * the 

replacement staffing costs alone represent 

approximately $20 million annually * * * 

Southwest estimates that it must employ and 

pay as many as 200 additional Reserve Flight 

Attendants each month to cover intermittent 

FMLA. 

Southwest Airlines Co., Doc. 10183A, at 

3, 5. 

An office worker who shows up one hour 

late for work may find some extra paperwork 

on his desk which he can handle during the 

day without affecting others. A flight 

attendant who reports at 10 a.m. for a 9 a.m. 

departure has almost certainly created 

significant operational problems. He has 

either (a) forced 100–400 passengers to wait 

and miss later connections, or (b) caused the 

airline to reposition another flight attendant 

onto the aircraft because, by federal 

regulation, an aircraft cannot board 

passengers or take off without a minimum 

number of flight attendants. The ripple 

effects of such delays also can affect an 

infinite number of passengers, as well as 

numerous coworkers * * * in cases where 

airline employees work on planes that have 

left the airport, it is physically impossible for 

an employee to report to work on a plane that 

has taken off. 

Air Conference, Doc. 10160A, at 4, 11. 

There are 55 employees in our workforce. 

* * * Three are [on] FMLA [leave]. * * * 

Buses don’t leave the garage without drivers. 

Buses are not properly maintained without 

enough mechanics. Therefore we have to hire 

more people to get the job done while we 

wait to see if the four that are off will ever 

come back. If they do, we have to lay off the 

people that we hired and trained to do the 

job. 

The Transit Authority, Huntington, WV, 

FL 3, at 1. 

4. Operations Involving Public Health 

and Safety 

The RFI record indicates that 

unscheduled intermittent leave can 

have an adverse impact on operations 

involving public safety. There are 

numerous examples in the record 

describing the impact of such leave on 

police, fire, correctional and health 

operations. 

a. Hospitals, Clinics and Long-Term 

Care Facilities 

Unscheduled leaves of absence, whether 

covered by the FMLA or not, naturally 

present staffing and operational difficulties, 

particularly for hospitals and other health 

care facilities that must provide treatment 

and services for patients’ medical needs 

* * * for many years, the health care 

industry has been confronted with a serious 

nursing shortage. Therefore, hospitals and 

other health care facilities must supplement 

their regular nursing staffs through the use of 

nurse agencies in order to satisfy 

patient:nurse ratios in order to provide 

optimal patient care and treatment. It can be 

very difficult, however, to have an agency 

nurse assigned to a facility in a timely 

manner when a nurse experiences an 

unforeseeable absence, particularly in 

situations requiring nurses with specific 

expertise in a clinical area. In addition, when 

non-licensed (i.e., non-nursing) clinical staff 

experience unforeseeable absences, nurses 

and other staff members are often required to 

cover their duties, as it can be equally 

difficult to schedule a replacement employee 

in a timely manner to meet patient needs. 

Clearly, these situations impose significant 

stress on a workforce responsible for 

delivering optimal patient care. 

Medstar Health, Doc. 10144A, at 11–12. 

The Commonwealth of Pennsylvania 

expressed concern about the use of 

unscheduled intermittent FMLA leave 

making it difficult for hospitals to 

maintain necessary staffing levels. 

‘‘Some of our 24/7 direct care operations 

also experience difficulty in meeting 

federally mandated staffing standards of 

the Commission of Accreditation of 

Healthcare Organizations because of the 

intermittent use of FMLA.’’ Doc. 

10042A, at 3. Allina Hospitals and 

Clinics expressed concern about the 

impact of unscheduled FMLA leave on 

patient care. ‘‘The great majority of 

Allina’s employees work at hospitals 

and clinics and are involved in direct 

patient care * * * These provisions 

make it very difficult to ensure that 

hospitals and clinics will be adequately 

staffed. * * * Yet, Allina has had to 

allow emergency room staff, surgical 

support staff, nurses, physicians and 

ambulance drivers to take this 

extensive, unplanned leave * * * 

regardless of the impact on patient 

care.’’ Doc. 641, at 1. 

• The concern about patient care was 

also mentioned in the comments by 

Hinshaw and Culbertson. ‘‘[W]e have 

conducted a formal survey of our clients 

with respect to the questions raised in 

the Federal Register * * * The general 

concern with unscheduled leave * * * 

and intermittent leave * * * [is] patient 

safety (at healthcare entities) can 

become a problem when staffing is low 

or when temporary employees are 

used[.]’’ Doc. 10075A, at 1 and 3. 

• Long term care (LTC) ‘‘employers 

distribute work among its staff or hire 

agency staff to care for patients. Full 

time employees may be offered 

incentives beyond overtime pay, or staff 

may be brought in from affiliated 

employment sites, which means that 

travel costs must be covered. LTC 

employees provide direct care to frail, 

elderly and disabled individuals who 

are in need of clinically complex, 

special care. Therefore, when employees 

take FMLA leave, adequate numbers of 

trained replacement staff are especially 

important. Notably, some states have 

specific minimum requirements for 

nurse to patient staff ratios in LTC 

facilities in order for Medicare/ 

Medicaid beneficiaries to reside in these 

facilities. On the federal level, facilities 

must have ‘sufficient staff’ to provide 

nursing care to residents. Therefore, 

having adequate staff on hand not only 

is necessary to promote good patient 

care, but it is a state and federal 

mandate.’’ American Health Care 

Association, Doc. 10321. 

b. Other 24/7 Operations 

Franklin County Human Resources 

cited correctional institutions and 

nursing homes. ‘‘Unscheduled leave is 

where the hardship lies in continuing 

normal operations. This is critical for a 

24-hour operation. This is more difficult 

in our more service-based departments 

that include a Jail and Nursing Home. In 

these operations, we must have a proper 

number of nurses and corrections 

officers * * * [and] unscheduled 

absences * * * places demands on 

other employees they were not prepared 

for.’’ Doc. FL59, at 5. 

• The Indiana State Personnel 

Department cited correctional 

institutions and mental health facilities. 

‘‘Operations of 24/7 facilities housing 

correctional offenders or persons with 

mental illnesses are adversely impacted 

by unscheduled intermittent FMLA 

leave due to legal requirements for 

specific staff/resident ratios and related 

safety issues.’’ Doc. 10244A, at 3. 


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44See 2000 Westat Report, Table 4.22 at 4–19. 

45See id. at Table 4.20 at 4–18, and Table 4.23 

at 4–20. It should be noted that 17.4 percent of 

workers felt co-workers taking leave had a positive 

impact and 67.4 percent felt it had no impact on 

them. Moreover, 63.9 percent did not feel that 

providing 12 weeks of unpaid leave was an unfair 

burden to co-workers. 

c. Emergency 911 Operations and Public 

Safety 

The situation is particularly ominous when 

the employee works in a safety-sensitive 

position, such as 911 operators, or other 

employees requiring face-to-face relief, 

because if the person’s shift is not able to be 

covered by a colleague who in some 

instances is required to work overtime, then 

the public may receive a slow response to an 

emergency call. Moreover, on certain 

holidays, during public events or declared 

emergencies * * * the NYPD must be able to 

double the size of its staff. Yet, the inordinate 

number of employees who call in sick for 

allegedly FMLA qualifying reasons on 

holidays * * * and during public 

emergencies * * * places the NYPD in a 

precarious situation of trying to balance 

between an individual employee’s rights and 

public safety concerns. Moreover, when more 

than 20% of the employees on a shift call in 

claiming the need for an FMLA-related 

reason on the same day—which happens 

frequently on holidays such as New Year’s 

Eve—the employer, in this case, the NYPD, 

may be left short-staffed and unable to 

provide the necessary safety-sensitive 

services to the public. 

New York City, Doc. 10103A, at 5. 

• New York City provided many 

other examples of ‘‘public safety 

sensitive positions’’ including police 

officers, firefighters, sheriffs and 

sanitation workers. Id., at 2, n.1. 

• A manager of a 911 center also 

expressed similar concerns. ‘‘The work 

in the 9–1–1 Center is very specialized 

and requires hundreds of hours of 

training. I cannot hire ‘temps’ from an 

office service to replace absent 

employees. The majority of absences 

require that I hire overtime, and often, 

that overtime is forced on employees. 

Currently, five of the seven employees 

assigned to day shift are on FMLA. 

Three other employees in the division 

(of 27 employees) are also on FMLA and 

another three have recently submitted 

FMLA paperwork for approval. With 

one exception, these medical conditions 

have not required hospitalization. 

Instead, these employees are given free 

license to call in sick on a day-to-day 

basis. And they do. Frequently. The 

remaining employees are working an 

enormous amount of short notice 

overtime and are denied their own 

personal and family time in order to 

cover these absences. The number of 

overtime hours being worked leads to 

overtired people making critical life and 

death decisions in an emergency driven 

environment.’’ Doc. 5193, at 1. 

• The Fairfax County Public Schools 

provided the example of school bus 

drivers. ‘‘[T]he essence of a school bus 

driver’s job is to deliver children to 

school on time and safely. A few bus 

drivers have used chronic conditions 

such as CFS, depression, or sleep 

problems as an excuse not to report on 

time and not to call in when they will 

be late. They claim that their 

‘‘condition’’ precludes them from 

providing notice or from being on time. 

These behaviors mean that children are 

often left waiting on street corners in all 

weather for some other bus driver.’’ Doc. 

10134A, at 2. 

L. The Impact of FMLA Leave Use in the 

Workplace 

The 2000 Westat Report found that 

during a worker’s FMLA leave, 

employers most frequently assign their 

work temporarily to other employees. 

MOST FREQUENTLY USED METHOD TO

COVER WORK WHEN AN EMPLOYEE

TAKES LEAVE FOR A WEEK OR

LONGER

Percent 

Temporarily Assign Work to 

Other Employees .................. 74.5 

Hire Outside Temporary Replacement Workers ............... 18.0 

Put Work on Hold Until Employee Returns ...................... 2.4 

Some Other Method ................. 4.3 

Source: 2000 Westat Report, Table A2–6.5. 

These results are consistent with the 

Society for Human Resource 

Management’s more recent findings: 

Employer approaches to covering work 

when an employee is on unscheduled 

intermittent leave vary based upon such 

factors as the nature and size of the 

employer’s business, the employee’s 

position, the number of individuals available 

to provide coverage in the employee’s 

department, and business needs in that 

department. Employers may cover the leavetaker’s work with: (i) Hiring a temporary 

worker; (ii) asking current employees to work 

overtime; (iii) spreading the work among 

current employees; or (iv) rearranging other 

employees’ schedules to provide coverage. 

Sometimes, however, employers are unable 

to cover the work, particularly in situations 

involving unscheduled intermittent leaves. 

These situations can and do result in missed 

deadlines, lost production, and other 

business losses. 

Doc. 10154A, at 7. 

The 2003 Society for Human Resource 

Management survey found that 

assigning some work temporarily to 

other employees and hiring temporary 

outside replacements were the two most 

common methods used to cover the 

work of an employee absent on FMLA 

leave, with average ratings of 4.42 and 

2.86 out of a possible 5, respectively. 

Id., at 13. 

Westat’s employee survey also found 

that 32.1 percent of employees worked 

more hours than usual, and 22.9 percent 

worked a shift not normally worked 

when co-workers took leave.44

Moreover, 36.1 percent of workers felt 

that providing 12 weeks of unpaid leave 

for family and medical reasons was an 

unfair burden to employees’ co-workers, 

and 15.1 percent of employees felt that 

their co-workers taking leave had a 

negative impact on them.45

The comments submitted for the RFI 

supplement this record by providing 

greater details and insights on this issue. 

For example, Darby Associates 

commented that ‘‘[a]n important cost 

dimension is reflected in the burdens 

imposed upon fellow employees. These 

are not trivial * * * The record 

indicates that fellow employees who 

‘fill in’ for unscheduled leave-takers are 

often obliged to miss professional 

appointments and family engagements. 

Employees also cite added workplace 

stress, resentment and uncertainty. 

There are considerable costs to 

employees that must work overtime or 

more intensely to cover for another 

employee ‘out’ on FMLA leave. This is 

especially true for unscheduled 

intermittent leave * * * employees are 

very unhappy when they believe that a 

fellow employee is gaming the system 

and forcing them to work extra when 

the person is abusing FMLA laws.’’ Doc. 

10172A, Attachment at 26. 

The record indicates if the morale of 

workers covering for the absent workers 

on FMLA leave begins to suffer, these 

workers may in turn seek and need their 

own FMLA certifications, causing an 

even larger impact on productivity and 

attendance. For example: 

• Workers ‘‘also report that 

employees on unforeseen, intermittent 

leave indicate that they can and will 

misuse the system when they want to. 

As a result, more and more employees 

are applying for unforeseen, intermittent 

leave so they can take time off of work 

whenever they choose.’’ YellowBook, 

Doc. 10021A, at 1. 

• ‘‘Productivity and services 

inevitably declined and morale suffered. 

Some of the over worked employees 

developed their own serious health 

conditions.’’ City of Portland, Doc. 

10161A, at 2. 

• ‘‘In larger companies, once 

employees understand that FMLA will 

allow the use of time off of work, 

without penalty and providing job 

protected leave, they have become savvy 


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46CCH, 2006 CCH Unscheduled Absence Survey, 

available online at: www.cch.com/press/news/2006/ 

20061026h.asp. 

47See also National Institute for Occupational 

Safety and Health, STRESS* * *At Work, NIOSH 

Publication No. 99–101, available online at: 

www.cdc.gov/niosh/stresswk.html. 

48See the concept of reasonableness discussed in 

United States v. Carroll Towing Co., 159 F.2d 169, 

173 (2d Cir. 1947). 

49For more information on risk management 

matrices see, for example, Corinne Alexander and 

Maria I. Marshall, The Risk Matrix: Illustrating the 

Importance of Risk Management Strategies, Journal 

of Extension, April 2006, Volume 44 Number 2, 

Article Number 2TOT1, available online at: 

www.joe.org/joe/2006april/tt1.shtml. 

with the use of FMLA to their benefit 

and they do not hesitate to let their coworkers know how it works.’’ First 

Premier Bank, Doc. 10101A, at 4. 

• ‘‘We have had an employee request 

a week of vacation during the holidays 

and the request was denied because we 

had so many other employees off. Then 

the employee just called off for the 

entire week using FMLA, and then went 

on her vacation to Florida * * * Once 

one employee ‘gets away with it’, all 

employees are lined up at their doctors 

office to acquire intermittent FMLA 

leave.’’ Akers Packaging Service, Doc. 

5121, at 1. 

The issue of leave ‘‘contagion’’ as a 

behavior pattern is discussed in 

research cited in the RFI by Harold 

Gardner, et al., titled Workers’

Compensation and Family and Medical 

Leave Act Claim Contagion. It notes: 

Economists and psychologists have been 

interested in why groups tend to engage in 

repeated behavioral patterns * * * The 

social barrier theory suggests that future 

claims will increase as prior claims break 

social barriers to claim filing. An example of 

a social barrier effect is a driver who wants 

to speed but does not because he fears the 

consequences of being caught or the 

increased probability of an accident. These 

concerns create a psychological barrier that 

he may not be able to cross even though there 

may be no police presence. If several 

speeding motorists pass the driver, he now 

finds it more psychologically acceptable to 

speed. ‘‘Contagion’’ occurs when an 

individual observes others taking an action 

that has not been possible for him to take 

because of a psychological barrier, and seeing 

others break the barrier itself increases his 

own ability to break it as well * * * an 

alternative economic view is claimant 

learning by proxy * * * A workers’

compensation claim by one member of a 

workgroup makes others more aware of its 

provisions for medical payments, disability 

pay, and rehabilitation services. A worker 

gains claimant capital through another 

workers’ claims, by proxy. In other words, 

workers learn about the benefits of workers’

compensation claims when their co-workers 

make workers’ compensation claims, and this 

information lowers future barriers of filing 

claims. 

71 FR 69514. 

According to CCH’s 2006 

Unscheduled Absence Survey, ‘‘the rate 

of unscheduled absenteeism climbed to 

its highest level since 1999, costing 

some large employers an estimated 

$850,000 per year in direct payroll 

costs, and even more when lost 

productivity, morale and temporary 

labor costs are considered.’’ CCH 

estimates that 18 percent of 

unscheduled absences are due to 

personal needs, 12 percent due to stress, 

and 11 percent due to an entitlement 

mentality.46

As discussed in Chapter IV, several 

commenters noted the misuse of 

intermittent FMLA leave for the purpose 

of avoiding mandatory overtime, and 

argued that this can have an adverse 

impact on their co-workers who are 

forced to cover for absent workers. 

However, some academic research 

postulates the negative attendance 

effects on those who are working to 

cover the absence of a person on FMLA 

leave may be related to new serious 

health conditions that arise—not 

additional misuse: 

The loss of firm-specific human capital of 

the initial claimant places an increased 

burden on the workers in the group who 

remain because they must ‘‘pick up the 

slack.’’ The remaining workers may also be 

diverted from their assigned work if they 

have to train the replacement worker in those 

skills he needs to function as part of the 

group * * * The increased burden creates a 

higher stress environment. The stress felt by 

these workers may spread to other workers 

* * * Job-related stress has been found to be 

positively correlated with increased levels of 

coronary disease and mental illnesses * * * 

Stress can exacerbate preexisting conditions 

or cause new medical condition because of 

greater physiological pressure on the body 

created by psychological factors. Workers 

must exert more physical and mental effort 

to pick up the slack with the departure of the 

original claimant’s firm-specific human 

capital. The higher stress environment will 

lead to more illnesses and therefore more 

claims being filed under * * * FMLA * * * 

Stressed workers are more likely to be absent, 

as they leave the work environment 

temporarily to cope with the stress. 

Harold Gardner, et al., Workers’

Compensation and Family and Medical 

Leave Act Claim Contagion, Journal of 

Risk and Uncertainty, Volume 20, Jan. 

2000.47

Thus, based on the record, although 

some amount of contagion (i.e., the use 

of FMLA leave increases as more and 

more workers in a facility begin to take 

it) appears to be taking place, the causes 

of the increase are not certain. In 

addition to alleged misuse, the increase 

in the use of unscheduled intermittent 

FMLA leave seen in the data submitted 

by some employers could be due to 

other factors, such as workers suffering 

from the adverse health effects 

associated with the stress of staffing 

shorthanded operations. 

M. Risk Management Analysis of 

Unscheduled Intermittent Leave 

The techniques of risk management 

analysis and the concept of 

reasonableness can be used to explain 

how unscheduled intermittent FMLA 

leave can have different impacts on 

different employers, and account for 

such divergent comments about the 

economic impact and cost and benefits 

of the FMLA that the Department 

received in response to the RFI.48

Figure 1, below, presents a standard 

risk management analysis matrix to 

illustrate how risk management 

principles apply to the issue of 

unscheduled intermittent FMLA 

leave.49 It consists of four combinations 

of the probability (or rate) that 

unscheduled intermittent leave will 

occur, and consequences (is the cost 

high or low) associated with such leave 

for employers. In Block I, the probability 

that, or rate at which, unscheduled 

intermittent leave occurs is low, and the 

cost of such leave for employers is low. 

In Block II, the probability that, or rate 

at which, unscheduled intermittent 

leave occurs is higher, but the cost of 

such leave for employers remains low. 

In Block III, the probability that, or rate 

at which, unscheduled intermittent 

leave occurs is relatively low, but the 

cost of such leave for employers is high. 

Finally, in Block IV the probability that, 

or rate at which, unscheduled 

intermittent leave occurs is high, and 

the cost of such leave for employers is 

high. 


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50See 2000 Westat Report, at 6–12. 

51See 2000 Westat Report, Table A2–6.13, at A–

2–59. Some of these establishments may also report 

that intermittent FMLA leave has no impact on 

either productivity or profits if such leave does not 

occur very frequently. 

52The Department received many comments 

about the use of, or inability to use, perfect 

attendance awards due to certain regulatory 

provisions and interpretations. The Department 

interpreted the regulatory provisions on perfect 

attendance bonuses (section 825.220(c)) in Wage 

and Hour Opinion Letter FMLA–2 (Aug. 16, 1993): 

With regard to attendance incentive plans 

rewarding perfect attendance, an employee may not 

be disqualified nor may any award be reduced for 

having taken unpaid FMLA leave. In a case where 

the bonus is expressed as an amount per hour 

worked, the employee on unpaid FMLA leave 

would receive a lesser amount than an employee 

who had not been on FMLA leave, as the employee 

Continued 

Based upon the available evidence, 

the Department believes that most 

FMLA covered establishments are in 

Block I with respect to the use of 

unscheduled intermittent FMLA leave. 

The data indicate that only a small 

portion of the workforce covered by the 

FMLA takes any form of FMLA leave, 

and even a smaller portion takes 

unscheduled intermittent FMLA leave. 

If an absence occurs, the reasonable 

employer will resolve these infrequent 

low cost events on a case-by-case basis 

by using the existing workforce (or 

possibly bringing in temporary help) to 

cover for the absent worker, and likely 

will view unscheduled intermittent 

FMLA leave as an expected cost of 

business. These establishments probably 

constitute most of the 81 to 94 percent 

of covered establishments that report 

that intermittent FMLA leave did not 

adversely impact either their 

productivity or profits, or may have had 

some positive effect.50

For the establishments in Block II 

where the probability (or rate) of 

unscheduled intermittent leave is 

relatively high, but the overall cost to 

these establishments remains low 

because of the low cost associated with 

each absence, the reasonable employer 

may take steps to manage the leave (e.g., 

talk to the workers, get the workers to 

call in before taking leave), but will 

most likely continue to resolve these 

low cost events on a case-by-case basis. 

It is likely that these establishments also 

report that intermittent FMLA leave 

does not adversely impact either 

productivity or profits. 

On the other hand, most of the 

establishments in the time-sensitive 

industries discussed above (see Chapter 

XI, section K) are probably in Block III. 

Although only a small portion of their 

workforce may take unscheduled 

intermittent FMLA leave, or is certified 

for a chronic condition, the cost of an 

absence by a worker is relatively high 

(e.g., the assembly line can not run as 

fast or it may take longer for the power 

to be restored). For the establishments 

in Block III, the overall cost is low if 

unscheduled intermittent leave does not 

occur, but high if it does. Here the 

reasonable employer is likely to take 

steps to reduce both the probability and 

the consequences associated with an 

absence. This may include more 

rigorous absence control systems and 

policies to discourage absences, 

overstaffing (e.g., the use of floaters or 

on-call workers), and the use of 

mandatory overtime to ensure that the 

time-sensitive operations are adequately 

staffed when some workers are 

unexpectedly absent. These 

establishments clearly incur some 

additional costs to mitigate the impact 

that unscheduled intermittent FMLA 

leave has on their operations, and likely 

report a small negative impact (4.2 to 

5.4 percent of establishments) on either 

productivity or profits if an absence 

occurs.51

To the extent the Department received 

comments about how family-friendly 

policies and flexible schedules are good 

for business (e.g., improve morale, 

employee retention, productivity, etc.), 

these comments are most likely from 

employers in Blocks I and II (pertaining 

to the majority of employees covered by 

the FMLA). However, reasonable 

employers in Block IV, who face the 

high probability of high cost absences 

associated with FMLA leave (e.g., a few 

workers taking leave that results in an 

assembly line being shut down for a 

shift), are not likely to be persuaded by 

comments that reflect a lower risk 

experience. 

For those establishments and 

workgroups in Block IV with a high 

probability (rate) of unscheduled 

intermittent leave and where the cost of 

such leave is high, the comments 

suggest that none of the measures 

previously employed to reduce the risk 

and costs associated with unscheduled 

intermittent FMLA leave appears to 

work very well. Traditionally, 

employers have provided monetary 

incentives for workers to report (such as 

perfect attendance awards) and 

disincentives for workers not to report 

(such as an attendance point system).52


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35638 Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / Proposed Rules 

on FMLA Leave is not entitled to accrue benefits 

during FMLA leave. See § 825.220(c). 

The Department has restated its position in 

several opinion letters since then. See, e.g., Wage 

and Hour Opinion Letter FMLA–31 (March 21, 

1994), and Wage Hour Opinion Letter FMLA–110 

(Sept. 11, 2000). 

Several commenters suggested that no ‘‘problem’’

exists with respect to perfect attendance bonuses, 

and that employers ought simply to provide 

bonuses other than ‘‘perfect attendance’’ bonuses. 

See Elaine G. Howell, H.R. Specialist, International 

Auto Processing, Inc., Doc. 4752, at 2; International 

Association of Machinists and Aerospace Workers, 

Doc. 10269A, at 3; SEIU Local 668, Pennsylvania 

Social Services Union, Doc. FL105, at 3; Faculty & 

Staff Federation of Community College of 

Philadelphia, Local 2026 of the American 

Federation of Teachers, Doc. 10242A, at 4; 

American Association of University Professors, Doc. 

R31A, at 3; and National Partnership for Women & 

Families, Doc. 10204A, at 10–11. 

Several commenters, on the other hand, objected 

to prohibiting FMLA-protected leave from counting 

against an employee for the purposes of a perfect 

attendance bonus. See The Southern Company, 

Doc. 10293A, at 12; Taft, Stettinius & Hollister LLP, 

Doc. FL107, at 5; National Public Employer Labor 

Relations Association, Doc. R358A, at 3–4; Porter, 

Wright, Morris & Arthur LLP, Doc. 10124B, at 3–

4; G.S.W. Manufacturing, Inc., Doc FL288, at 2; 

Fisher & Phillips LLP, Doc. 10262A, at 7–8; Edison 

Electric Institute, Doc. 10128A, at 4; and Carol 

Hauser, Senior Director of Human Resources, 

Miami University, Doc. 10032A, at 9. 53See 2000 Westat Report, Table A2–6.13, at A–

2–59. 

54A similar analysis can be used to show why 

workers wanted Congress to pass the FMLA. Before 

the FMLA, a serious health condition could have 

been a catastrophic high cost event due to the 

potential loss of employment and health insurance. 

When women entered the workforce in greater 

numbers in the 1970’s and 1980’s, fewer families 

had an adult available to care for family members 

with serious health conditions, and the probability 

of families experiencing such a catastrophic event 

rose. Workers reacted reasonably by trying to limit 

this risk through the passage of legislation such as 

the FMLA. 

These establishments, whose risk 

management systems (e.g., absence 

control policies, overstaffing, mandatory 

overtime) appear to be overwhelmed 

(e.g., Southwest Research Institute, Doc. 

10077A), are likely the employers 

reporting that intermittent FMLA leave 

has a moderate to large negative impact 

on their productivity and profits (1.8 to 

12.7 percent of establishments).53 In 

addition, many of their traditional 

methods to encourage or control 

absenteeism (e.g., perfect attendance 

awards or no fault attendance polices) 

are not permitted for FMLA-protected 

leave. A reasonable employer in this 

situation may seek changes to the 

regulations or the statute,54 may try to 

make it difficult for their workers to take 

unscheduled intermittent FMLA leave 

by repeatedly questioning the medical 

certifications or asking for 

recertifications (see Chapter VI.B.1.c, 

and comments from: the Association of 

Professional Flight Attendants, Doc. 

10056A; the International Association of 

Machinists and Aerospace Workers, 

Doc. 10269A; and the Communication 

Workers of America, Doc. R346A), and 

whenever possible, may require 

employees to use paid leave to cover 

their absences (see the joint comment on 

behalf of the International Association 

of Machinists and Aerospace Workers, 

the Transportation Communications 

International Union, the Transport 

Workers Union, and the United 

Transportation Union, Doc. 10235A; 

and the joint comment from the 

American Train Dispatchers 

Association, the Brotherhood of 

Locomotive Engineers and Trainmen, 

the Brotherhood of Railroad Signalmen, 

the International Brotherhood of 

Electrical Workers, the National 

Conference of Fireman and Oilers, and 

the Sheet Metal Workers International 

Association, Doc. 10163A.). 

As the risk analysis indicates, FMLArelated tension between employers and 

employees is at its highest for those 

entities in Block IV. More specifically, 

the comments confirm this tension 

arises, for the most part, due to 

unscheduled intermittent leave. 

The tension can be traced to two 

competing needs that are true at the 

same time: (1) Employers’ need for 

predictable attendance, particularly in 

certain industries; and (2) employees’

need for unscheduled intermittent leave 

for their own or a family member’s 

serious, chronic health conditions that 

flare up unpredictably and require 

absence from work. In some cases it 

appears these competing needs have 

resulted in employers and employees 

adopting a more adversarial approach in 

their FMLA interactions. 

Signed at Washington, DC this 20th day of 

June, 2007. 

Victoria A. Lipnic, 

Assistant Secretary, Employment Standards 

Administration. 

Paul DeCamp, 

Administrator, Wage and Hour Division. 

[FR Doc. 07–3102 Filed 6–27–07; 8:45 am] 

BILLING CODE 4510–27–P 


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