7876 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 

DEPARTMENT OF LABOR 

Employment Standards Administration 

Wage and Hour Division 

29 CFR Part 825 

RIN 1215–AB35 

The Family and Medical Leave Act of 

1993 

AGENCY: Employment Standards 

Administration, Wage and Hour 

Division, Department of Labor. 

ACTION: Notice of proposed rulemaking; 

request for comments. 

SUMMARY: The Department of Labor’s 

Employment Standards Administration/ 

Wage and Hour Division proposes to 

revise certain regulations implementing 

the Family and Medical Leave Act of 

1993 (‘‘FMLA’’), the law that provides 

eligible workers with important 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 qualifying family member. The 

proposed changes are based on the 

Department’s experience of nearly 

fifteen years administering the law, two 

previous Department of Labor studies of 

the FMLA in 1996 and 2001, several 

U.S. Supreme Court and lower court 

rulings, and the public comments 

received in response to a Request for 

Information (‘‘RFI’’) published in the 

Federal Register in December 2006 

requesting information about 

experiences with the FMLA and 

comments on the effectiveness of these 

regulations. 

The Department is also seeking public 

comment on issues to be addressed in 

final regulations regarding military 

family leave. Section 585(a) of the 

National Defense Authorization Act for 

FY 2008 amends the FMLA to provide 

leave to eligible employees of covered 

employers to care for injured 

servicemembers and because of any 

qualifying exigency arising out of the 

fact that a covered family member is on 

active duty or has been notified of an 

impending call to active duty status in 

support of a contingency operation 

(collectively referred to herein as 

military family leave). The provisions of 

this amendment providing FMLA leave 

to care for a covered servicemember 

became effective on January 28, 2008, 

when the law was enacted. The 

provisions of this amendment providing 

for FMLA leave due to a qualifying 

exigency arising out of a covered family 

member’s active duty (or call to active 

duty) status are not effective until the 

Secretary of Labor issues regulations 

defining ‘‘qualifying exigencies.’’ 

Because of the need to issue regulations 

under the military family leave 

provisions of the amendment as soon as 

possible, the Department is including in 

this Notice a description of the relevant 

military family leave statutory 

provisions, a discussion of issues the 

Department has identified, and a series 

of questions seeking comment on 

subjects and issues that may be 

considered in the final regulations. 

DATES: Comments must be received on 

or before April 11, 2008. 

ADDRESSES: You may submit comments, 

identified by RIN 1215–AB35, by either 

one of the following methods: 

• Electronic comments, through the 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail: Address all written 

submissions to Richard M. Brennan, 

Senior Regulatory Officer, Wage and 

Hour Division, Employment Standards 

Administration, U.S. Department of 

Labor, Room S–3502, 200 Constitution 

Avenue, N.W., Washington, DC 20210. 

Instructions: Please submit one copy 

of your comments by only one method. 

All submissions must include the 

agency name and Regulatory 

Information Number (RIN) identified 

above for this rulemaking. Please be 

advised that comments received will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. Because 

we continue to experience delays in 

receiving mail in the Washington, DC 

area, commenters are strongly 

encouraged to transmit their comments 

electronically via the Federal 

eRulemaking Portal at http:// 

www.regulations.gov or to submit them 

by mail early. For additional 

information on submitting comments 

and the rulemaking process, see the 

‘‘Public Participation’’ heading of the 

SUPPLEMENTARY INFORMATION section of 

this document. 

Docket: For access to the docket to 

read background documents or 

comments received, go to the Federal 

eRulemaking Portal at http:// 

www.regulations.gov. 

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). 

Copies of this proposed rule may be 

obtained in alternative formats (Large 

Print, Braille, Audio Tape or Disc), upon 

request, by calling (202) 693–0675. 

TTY/TDD callers may dial toll-free 1– 

877–889–5627 to obtain information or 

request materials in alternative formats. 

Questions of interpretation and/or 

enforcement of the agency’s current 

regulations may be directed to the 

nearest Wage and Hour Division District 

Office. Locate the nearest office by 

calling the Wage and Hour Division’s 

toll-free help line at (866) 4US–WAGE 

((866) 487–9243) between 8 a.m. and 5 

p.m. in your local time zone, or log onto 

the Wage and Hour Division’s Web site 

for a nationwide listing of Wage and 

Hour District and Area Offices at: 

http://www.dol.gov/esa/contacts/whd/ 

america2.htm. 

SUPPLEMENTARY INFORMATION: 

I. Electronic Access and Filing 

Comments 

Public Participation: This notice of 

proposed rulemaking is available 

through the Federal Register and the 

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

You may also access this document via 

the Wage and Hour Division’s home 

page at http://www.wagehour.dol.gov. 

To comment electronically on Federal 

rulemakings, go to the Federal 

eRulemaking Portal at http:// 

www.regulations.gov, which will allow 

you to find, review, and submit 

comments on Federal documents that 

are open for comment and published in 

the Federal Register. Please identify all 

comments submitted in electronic form 

by the RIN docket number (1215–AB35). 

Because of delays in receiving mail in 

the Washington, DC area, commenters 

should transmit their comments 

electronically via the Federal 

eRulemaking Portal at http:// 

www.regulations.gov, or submit them by 

mail early to ensure timely receipt prior 

to the close of the comment period. 

Submit one copy of your comments by 

only one method. 

II. Background 

A. What the Law Provides 

The Family and Medical Leave Act of 

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

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

was enacted on February 5, 1993, and 

became effective for most covered 

employers on August 5, 1993. 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 

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1See 71 FR 69504, 69505 (Dec. 1, 2006). 

2See ‘‘Family and Medical Leave Act Regulations: 

A Report on the Department of Labor’s request for 

Information,’’ 72 FR 35550, 35560 (June 28, 2007). 

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. 

Employers covered by the law must 

maintain for the employee any 

preexisting group health coverage 

during the leave period under the same 

conditions coverage would have been 

provided if the employee had not taken 

leave 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 

‘‘DOL’’) 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 

incurred, equitable relief as appropriate, 

interest, attorneys’ fees, expert witness 

fees, and court costs. Liquidated 

damages also may be awarded. See, 29 

U.S.C. 2617. 

Title I of the FMLA applies to private 

sector employers of fifty or more 

employees, public agencies and certain 

Federal employers and entities, such as 

the U.S. Postal Service and Postal Rate 

Commission. Title II applies to civil 

service employees covered by the 

annual and sick leave system 

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

plus certain employees covered by other 

Federal leave systems. Title III 

established a temporary Commission on 

Leave to conduct a study and report on 

existing and proposed policies on leave 

and the costs, benefits, and impact on 

productivity of such policies. Title IV 

contains miscellaneous provisions, 

including rules governing the effect of 

the FMLA on more generous leave 

policies, other laws, and existing 

employment benefits. Title V originally 

extended leave provisions to certain 

employees of the U.S. Senate and House 

of Representatives, but such coverage 

was repealed and replaced by the 

Congressional Accountability Act of 

1995, 2 U.S.C. 1301. 

B. Who the Law Covers 

The FMLA generally covers 

employers with 50 or more employees, 

and employees must have worked for 

the employer for 12 months and for 

1,250 hours of service during the 

previous year to be eligible for FMLA 

leave. Based on 2005 data, the latest 

year for which data are available, the 

Department estimates that: 

• There were an estimated 95.8 

million workers in establishments 

covered by the FMLA regulations, 

• There were approximately 77.1 

million workers in covered 

establishments who met the FMLA’s 

requirements for eligibility, and 

• About 7.0 million covered and 

eligible workers took FMLA leave in 

2005. 

• About 1.7 million covered and 

eligible employees who took FMLA 

leave took at least some of it 

intermittently—and may have taken that 

intermittent leave multiple times over 

the course of the year. 

C. Implementing Regulations 

The FMLA required the Department 

to issue regulations to implement Title 

I and Title IV of the FMLA within 120 

days of enactment, or by June 5, 1993, 

with an effective date of August 5, 1993. 

Given this short implementation period, 

the Department published a notice of 

proposed rulemaking in the Federal 

Register on March 10, 1993 (58 FR 

13394), inviting comments until March 

31, 1993, on a variety of questions and 

issues. The Department received a total 

of 393 comments at that time from a 

wide variety of stakeholders, including 

employers, trade and professional 

associations, advocacy organizations, 

labor unions, State and local 

governments, law firms, employee 

benefit firms, academic institutions, 

financial institutions, medical 

institutions, Members of Congress, and 

others. 

After considering these comments, the 

Department issued an interim final rule 

on June 4, 1993 (58 FR 31794) that 

became effective on August 5, 1993. The 

Department also invited further public 

comment on the interim regulations 

through September 3, 1993, later 

extended to December 3, 1993 (58 FR 

45433). During this comment period, the 

Department received more than 900 

substantive and editorial comments on 

the interim regulations, from a wide 

variety of stakeholders. 

Based on this second round of public 

comments, the Department published 

final regulations to implement the 

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

The regulations were amended on 

February 3, 1995 (60 FR 6658) and on 

March 30, 1995 (60 FR 16382) to make 

minor technical corrections. The final 

regulations went into effect on April 6, 

1995. 

D. Legal Challenges 

The Ragsdale Decision 

Since the enactment of the FMLA, 

hundreds of reported Federal cases have 

addressed the Act and/or implementing 

regulations. The most significant court 

decision on the validity of the 

regulations is that of the United States 

Supreme Court in Ragsdale v. Wolverine 

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

its first case involving the FMLA, the 

Court ruled in March 2002 that the 

penalty provision in 29 CFR 825.700(a), 

which states ‘‘[i]f an employee takes 

* * * leave and the employer does not 

designate the leave as FMLA leave, the 

leave taken does not count against an 

employee’s FMLA entitlement[,]’’ was 

invalid because in some circumstances 

it required employers to provide leave 

to employees beyond the 12-week 

statutory entitlement. ‘‘The FMLA 

guaranteed [Plaintiff] 12-not 42-weeks of 

leave[.]’’ Ragsdale, 535 U.S. at 96. While 

the Supreme Court did not invalidate 

the notice and designation provisions in 

the regulations, it made clear that any 

categorical penalty for a violation of 

such requirements set forth in the 

regulations would exceed the 

Department’s statutory authority. Id. at 

91–96. 

Other Challenges to ‘‘Categorical 

Penalty’’ Provisions 

As the Department explained in its 

December 2006 RFI 1 and the 

subsequent 2007 Report on the RFI 

comments,2 Ragsdale is not the only 

court decision addressing penalty 

provisions contained in the regulations. 

Another provision of the regulations, 

§ 825.110(d), requires an employer to 

notify an employee prior to the 

employee commencing leave as to 

whether or not the employee is eligible 

for FMLA leave. If the employer fails to 

provide the employee with such 

information or the information is not 

accurate, the regulation bars the 

employer from challenging eligibility at 

a later date, even if the employee is not 

eligible for FMLA leave according to the 

statutory requirements. The majority of 

courts addressing this notice provision 

have found it to be invalid, even prior 

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

Woodford v. Cmty. Action of Greene 

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

2001) (‘‘The regulation exceeds agency 

rulemaking powers by making eligible 

under the FMLA employees who do not 

meet the statute’s clear eligibility 

requirements.’’); Brungart v. BellSouth 

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

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

in the statute concerning eligibility for 

family medical leave, no gap to be 

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3See 71 FR at 69506. 

4See 72 FR at 35563. 

5See http://www.dol.gov/esa/whd/fmla/fmla/ 

1995Report/Family.htm. 

6Westat is a statistical survey research 

organization serving agencies of the U.S. 

Government, as well as businesses, foundations, 

and State and local governments. 

7See http://www.dol.gov/esa/whd/fmla/fmla/ 

toc.htm. 

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

2000) (the regulation tries ‘‘to change 

the Act’’ because it makes eligible 

employees who, under the language of 

the statute, are ineligible for family 

leave; ‘‘The statutory test is perfectly 

clear and covers the issue. The right of 

family leave is conferred only on 

employees who have worked at least 

1,250 hours in the previous 12 

months’’). 

Legal Challenges to the Definition of 

Serious Health Condition 

Other regulatory provisions have been 

challenged as well. In particular, 

challenges to the regulatory section 

defining the term ‘‘serious health 

condition’’ as a condition causing a 

period of incapacity of more than three 

consecutive calendar days and 

continuing treatment, 29 CFR 

825.114(a)(2)(i), has received significant 

attention. See, e.g., Miller v. AT&T 

Corp., 250 F.3d 820 (4th Cir. 2001); 

Thorson v. Gemini, Inc., 205 F.3d 370 

(8th Cir. 2000). 

As the Department explained in its 

December 2006 RFI 3 and subsequent 

Report on the RFI,4 the Department 

itself has struggled with this definition. 

After the Act’s passage, the Department 

promulgated § 825.114(c), which states 

that ‘‘[o]rdinarily, 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.’’

This regulatory language was intended 

to reflect the legislative history of the 

FMLA and expresses the Congressional 

intent that minor, short-term illnesses 

for which treatment and recovery are 

very brief would be covered by 

employers’ sick leave programs and not 

by the FMLA. See H.R. Rep. No. 103–

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

29 (1993). Consequently, in an early 

response about the proper handling of 

an employee’s request for leave due to 

the common cold, the Department 

responded by stating ‘‘[t]he fact that an 

employee is incapacitated for more than 

three days, has been treated by a health 

care provider on at least one occasion 

which has resulted in a regimen of 

continuing treatment prescribed by the 

health care provider does not convert 

minor illnesses such as the common 

cold into serious health conditions in 

the ordinary case (absent 

complications).’’ Wage and Hour 

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

More than a year and a half later, 

however, the Department reversed its 

interpretation, 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). The Department further stated 

that such minor illnesses ordinarily 

would not be expected to last more than 

three days, but if they do meet the 

regulatory criteria for a serious health 

condition under § 825.114(a), they 

qualify for FMLA leave. The Department 

received significant commentary about 

its changing interpretations of the 

definition of serious health condition in 

response to its RFI. See Chapter III of 

the Department’s 2007 Report on the 

RFI comments (72 FR at 35563). 

Other Legal Challenges 

Many other legal issues have arisen 

over the nearly thirteen years the final 

regulations have been in effect. For 

example, litigation has ensued under 

§§ 825.302–.303 as to what constitutes 

sufficient employee notice to trigger an 

employer’s obligations under the FMLA. 

See, e.g., Sarnowski v. Air Brook 

Limousine, Inc.,—F.3d ,—2007 WL 

4323259 (3rd Cir. 2007) (employee with 

chronic heart problems who informed 

employer of need for continuing 

medical monitoring and possible 

surgery provided sufficient notice); 

Spangler v. Fed. Home Loan Bank of 

Des Moines, 278 F.3d 847 (8th Cir. 2002) 

(employee who had made employer 

aware that she had problems with 

depression gave sufficient notice when 

she called in and indicated she was out 

because of ‘‘depression again’’). 

Among other cases, the Tenth Circuit 

Court of Appeals considered the 

definition of ‘‘worksite’’ for determining 

whether an employee seeking FMLA 

leave was employed at a worksite where 

50 or more employees were employed 

by the employer within 75 miles. 

Section 825.111(a)(3) 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. In Harbert v. Healthcare 

Services Group, Inc., 391 F.3d 1140 

(10th Cir. 2004), the Court of Appeals 

invalidated § 825.111(a)(3), insofar as it 

is applied to the situation of an 

employee with a long-term fixed 

worksite at a facility of the secondary 

employer. The First Circuit Court of 

Appeals looked at a different eligibility 

criterion, the requirement that the 

employee has been employed by the 

employer for at least 12 months, and 

addressed whether an employee who 

had a break in service may count 

previous periods of employment with 

the same employer toward satisfying the 

12-month employment requirement (29 

U.S.C. 2611(2)(A)(i); 29 CFR 

825.110(a)(1) and (b)). See Rucker v. Lee 

Holding Co., 471 F.3d 6 (1st Cir. 2006) 

(a complete break in service of a period 

of five years does not prevent the 

employee from counting previous 

employment to meet the 12-month 

employment requirement). Another 

regulation that has been the subject of 

litigation is § 825.220(d), which in part 

discusses the impact of a light duty 

work assignment on an employee’s 

FMLA rights. Further, most recently, the 

Fourth Circuit Court of Appeals ruled in 

Taylor v. Progress Energy, 493 F.3d 454 

(4th Cir. 2007), petition for cert. filed, 76 

U.S.L.W. 3226 (U.S. Oct. 22, 2007) (No. 

07–539), that other language in 

§ 825.220(d) prevents an employee and 

employer from independently settling 

past claims for FMLA violations without 

the approval of the Department or a 

court. 

E. Prior Studies and Reports 

Title III of the FMLA established a 

temporary Commission on Leave to 

conduct a study and report on existing 

and proposed policies on leave and the 

costs, benefits, and impact on 

productivity of such policies. 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.’’ 5 In 1999, the Department 

contracted with Westat, Inc.,6 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 2001.7

F. Request for Information 

On December 1, 2006, the Department 

published a Request for Information 

(RFI) in the Federal Register (71 FR 

69504). 

The RFI asked the public to comment 

on its experiences with, and 

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8These OMB reports may be found at the 

following Web sites: 2001 report at: http:// 

www.whitehouse.gov/omb/inforeg/ 

costbenefitreport.pdf; 2002 report at: http:// 

www.whitehouse.gov/omb/inforeg/ 

2002_report_to_congress.pdf; and 2004 report at: 

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

2004_cb_final.pdf. 

9All 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 http://www.regulations.gov. 

10See 45 CFR 160.102(a) and 45 CFR 160.03. 

11See Wage and Hour Opinion Letter FMLA2005–

2–A (Sept. 14, 2005). 

12See 29 CFR 825.500(g). 

observations of, the Department’s 

administration of the law and the 

effectiveness of the FMLA regulations. 

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 as discussed above, 

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 three annual 

reports to Congress on the FMLA’s costs 

and benefits.8 More than 15,000 

comments were received from workers, 

family members, employers, academics, 

and other interested parties.9 This input 

ranged from personal accounts, legal 

reviews, industry and academic studies, 

and surveys to recommendations for 

regulatory and statutory changes to 

address particular areas of concern. The 

Department published its Report on the 

comments received in response to the 

Department’s RFI in June 2007 (see 72 

FR 35550 (June 28, 2007)). 

G. Stakeholder Meeting 

The Department also conducted a 

stakeholder meeting regarding the 

medical certification process on 

September 6, 2007. This meeting 

included representatives from employee 

organizations, employer organizations, 

and the health care provider 

community. 

H. Other Statutory and Regulatory 

Developments 

As discussed in the RFI and the 

Report on the RFI, in addition to 

developments in the courts, several 

important legislative and regulatory 

developments have occurred that either 

directly or indirectly impact the FMLA 

regulations. In 1996, Congress enacted 

the Health Insurance Portability and 

Accountability Act (HIPAA), Public Law 

104–191, which addresses in part the 

privacy of individually identifiable 

health information. On December 28, 

2000, and as amended on August 14, 

2002, the Department of Health and 

Human Services issued regulations that 

provide standards for the privacy of 

individually identifiable health 

information, codified at 45 CFR Parts 

160 and 164 (‘‘HIPAA Privacy Rule’’). 

These standards apply to ‘‘covered 

entities,’’ defined as a health plan, a 

health care clearinghouse, or a health 

care provider who transmits any health 

information in electronic form in 

connection with a transaction as defined 

in the privacy regulations.10

The HIPAA Privacy Rule has had an 

impact on the FMLA’s medical 

certification process in a number of 

ways. For example, the FMLA provides 

employers with the right to obtain 

medical information to determine that a 

requested leave qualifies as FMLA 

leave, and the employee is required to 

assure that this information, if 

requested, is provided to the employer 

to be entitled to FMLA leave for a 

serious health condition. If an employee 

does not do this, the absence does not 

qualify for FMLA leave.11 While these 

rules are fairly straightforward, recent 

enforcement experience reveals that 

there is confusion with regard to the 

interaction of the HIPAA Privacy Rule 

and FMLA. For example, some 

employees incorrectly believe that the 

HIPAA Privacy Rule prevents employers 

from requiring FMLA certification. See 

discussion of §§ 825.306–.308 for 

further discussion of the impact of the 

HIPAA Privacy Rule on the medical 

certification process. 

Similarly, since the final FMLA 

regulations were implemented in 1995, 

the Equal Employment Opportunity 

Commission (EEOC), the agency 

responsible for enforcing the Americans 

with Disabilities Act (ADA), has issued 

guidance with regard to the privacy of 

employee medical information. See, e.g., 

Enforcement Guidance: DisabilityRelated Inquiries and Medical 

Examinations of Employees Under the 

Americans with Disabilities Act (ADA) 

(EEOC 2000). The FMLA looks to the 

ADA for guidance on privacy of 

employee medical information.12

III. Proposed Changes to the FMLA 

Regulations 

The following is a section-by-section 

discussion of the proposed revisions. 

Where a change is proposed to a 

regulatory section, that section is 

discussed below. However, even if a 

section is not discussed, there may be 

minor editorial changes or corrections 

that did not warrant discussion. The 

titles to each section of the existing 

regulations are in the form of a question. 

The proposal would reword each 

question into the more common format 

of a descriptive title and the Department 

invites comments on whether this 

change is helpful. In addition, several 

sections have been restructured and 

reorganized to improve the accessibility 

of the information (e.g., guidance on 

leave for pregnancy and birth of a child 

is addressed in one consolidated 

section; an employer’s notice 

obligations are combined in one 

section). 

Section 825.102 (Effective date of the 

Act) 

The proposal deletes this section, 

which discussed when the Act became 

effective, because it is no longer needed. 

The section number itself is reserved to 

avoid extensive renumbering of other 

sections in the regulations. 

Section 825.103 (How the Act affects 

leave in progress on, or taken before, the 

effective date of the Act) 

The proposal deletes and reserves this 

section, which discussed how the Act 

affected leave in progress on, or taken 

before, the Act’s effective date, because 

it is no longer needed. 

Section 825.106 (Joint employer 

coverage) 

Sections 825.106 and 825.111(a)(3) of 

the existing regulations govern 

employer coverage and employee 

eligibility in the case of joint 

employment and set forth the 

responsibilities of the primary and 

secondary employers. Under 

§ 825.106(d), employees jointly 

employed by two employers must be 

counted by 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 the FMLA. Likewise, if an 

employer with 15 permanent workers 

jointly employs 40 workers from a 

leasing company that employer is also 

covered by the 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 if the 

secondary employer continues to utilize 

an employee from the temporary or 

leasing agency and the agency chooses 

to place the employee with that 

secondary employer. The secondary 

employer is also responsible for 

compliance with the prohibited acts 

provisions with respect to its 

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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 the existing 

§ 825.106(e). 

In Wage and Hour Opinion Letter 

FMLA–111 (Sept. 11, 2000), the 

Department considered the application 

of the FMLA regulations’ ‘‘joint 

employment’’ test in current § 825.106 

to a ‘‘Professional Employer 

Organization’’ (PEO). The PEO in 

question had a contract with the client 

company under which it appeared to 

enter into an employer-employee 

relationship with the client’s employees 

(who were leased back to the client and 

continued to work at the client’s 

worksite pursuant to the terms of the 

contract). The PEO in this case assumed 

substantial employer rights, 

responsibilities and risks, including the 

responsibility for personnel 

management, health benefits, workers’

compensation claims, payroll, payroll 

tax compliance, and unemployment 

insurance claims. Moreover, the PEO in 

this case 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 

concluded that the PEO was in a joint 

employment relationship with its client 

companies for these reasons: 

1. The PEO was a separately owned and 

distinct entity 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 was acting directly in the 

interest of the client in assuming human 

resource responsibilities. 

3. The PEO appeared to also share control 

of the leased employees consistent with the 

client’s responsibility for its product or 

service. 

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, under existing 

§ 825.106, the PEO would be 

responsible for giving required FMLA 

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 company) would be responsible 

for accepting the employee returning 

from FMLA leave if the PEO chose to 

place the employee with the client 

company. The Opinion Letter 

concluded that the client company, as 

the ‘‘secondary employer,’’ whether a 

covered employer or not under the 

FMLA, was 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. 

While no specific questions 

concerning PEOs were contained in the 

RFI, the Department did seek 

information on ‘‘any issues that may 

arise when an employee is jointly 

employed by two or more employers’’

(71 FR at 69509). In response to the RFI, 

a number of stakeholders commented 

that it is not correct to consider PEOs 

(sometimes called ‘‘HR Outsourcing 

Vendors’’) to be joint employers with 

their client companies and explained 

the differences between a temporary 

staffing agency and a PEO. ‘‘A 

temporary staffing agency is a labor 

supplier. It supplies employees to a 

client while a PEO is a service provider 

providing services to existing employees 

of a company.’’ See comments by 

Jackson-Lewis. 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. 

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 temporary 

staffing agencies, the AFL–CIO 

commented, PEOs do not match people 

to jobs. 

The law firm of Littler Mendelson 

advised that ‘‘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, in contrast, assumes certain 

administrative functions for its clients 

such as payroll and benefits coverage 

and administration (including workers’

compensation insurance and health 

insurance). The PEO typically has no 

direct responsibility over the employees 

of its clients including ‘‘hiring, training, 

supervision, evaluation, discipline or 

discharge, among other critical 

employer functions.’’

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. The firm urged 

the Department to clarify that opinion 

letter FMLA–111 (Sept. 11, 2000) is 

about an atypical PEO that actually 

exercised control over the client’s 

employees. 

The Department proposes to amend 

§ 825.106(b) to clarify that PEOs that 

contract with client employers merely to 

perform administrative functions, 

including payroll, benefits, regulatory 

paperwork, and updating employment 

policies, are not joint employers with 

their clients, provided they merely 

perform such administrative functions. 

On the other hand, if in a particular fact 

situation a PEO has the right to hire, 

fire, assign, or direct and control the 

employees, or benefits from the work 

that the employees perform, such a PEO 

would be a joint employer with the 

client company. 

Some of the comments concerning 

PEOs suggest confusion over how to 

count employees jointly employed for 

purposes of employer coverage (‘‘over 

50 workers’’) and employee eligibility 

(‘‘over 50 employees within 75 miles’’). 

Some of these comments suggest that all 

of the employees of both the primary 

and secondary employers (and even 

those of other secondary employers) 

must be combined and counted together 

for purposes of these two tests. 

However, under the existing 

§ 825.106(d) only those employees who 

are jointly employed by the primary and 

each of the secondary employers are 

included in the employee counts of both 

firms. The home office employees of the 

primary employer and the employees 

placed with other secondary employers 

are not included, for example, in the 

employee counts for each secondary 

employer. 

For the reasons discussed above, 

existing paragraph (b) of § 825.106 is 

proposed to be changed to paragraph 

(b)(1) and a new paragraph (b)(2) is 

proposed to be added to clarify how the 

joint employment rules apply to PEOs. 

Under the proposal, PEOs that contract 

with client employers merely to perform 

administrative functions—including 

payroll, benefits, regulatory paperwork, 

and updating employment policies—are 

not joint employers with their clients, 

provided: (1) They do not have the right 

to exercise control over the activities of 

the client’s employees, and do not have 

the right to hire, fire or supervise them, 

or determine their rates of pay, and (2) 

do not benefit from the work that the 

employees perform. On the other hand, 

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13The Census of Governments is taken at fiveyear intervals. 

if in a particular fact situation a PEO has 

the right to hire, fire, assign, or direct 

and control the employees, or benefits 

from the work that the employees 

perform, such a PEO would be a joint 

employer with the client employer. The 

proposal also includes a cross-reference 

in paragraph (d) to proposed 

§ 825.111(a)(3), which, as discussed 

below, would change the determination 

of the ‘‘worksite’’ for purposes of 

employee eligibility with respect to 

employees who are placed by a primary 

employer at the worksite of a secondary 

employer for more than 12 months. 

Section 825.108 (Public agency 

coverage) 

This section addresses what 

constitutes a ‘‘public agency’’ for 

purposes of coverage under the Act. 

Under the current regulations, the 

dispositive test for determining whether 

a public agency is a separate and 

distinct entity (and therefore a separate 

employer for determining employee 

eligibility) or simply is part of another 

public agency is the U.S. Bureau of the 

Census’ ‘‘Census of Governments.’’ See 

U.S. Census Bureau, 2002 Census of 

Governments, Volume 1, Number 1, 

Government Organization, GC02(1)–1, 

U.S. Government Printing Office, 

Washington, DC 20002 13 (http:// 

www.census.gov/prod/2003pubs/ 

gc021x1.pdf). In contrast, regulations 

issued under the Fair Labor Standards 

Act (FLSA) use this test merely as one 

factor in determining what constitutes a 

separate public agency for its purposes. 

See 29 CFR 553.102. The Department 

proposes no changes to this section. 

Because the FMLA definition of ‘‘public 

agency’’ refers to the definition under 

the FLSA (29 U.S.C. 203(x)), however, 

the Department seeks public comment 

on whether this test in the FMLA 

regulations should be amended to 

conform with the test in the FLSA 

regulations. 

Section 825.109 (Federal agency 

coverage) 

This section of the existing 

regulations identifies the Federal 

agencies that are covered by the 

Department of Labor’s FMLA 

regulations. Shortly after these 

regulations were promulgated, Congress 

enacted the Congressional 

Accountability Act of 1995, 2 U.S.C. 

1301 (CAA), which in part amended the 

FMLA by repealing Title V of the FMLA 

pertaining to Congressional employees. 

See Section 504(b), Public Law 104–1. 

As a result, Congressional employees 

are now covered by the CAA as 

administered by the Office of 

Compliance created by the CAA. 

Section 202(c) of the CAA also 

specifically provided that the General 

Accounting Office (now named the 

Government Accountability Office) 

(GAO) and Library of Congress (LOC) 

are subject to Title I of the FMLA. For 

those agencies, the FMLA is 

administered by the Comptroller 

General and the Librarian of Congress, 

respectively. See 29 U.S.C. 

2611(4)(A)(iv) and 2617(f). 

The CAA also called for a study of 

how the FMLA is administered for the 

Government Printing Office (GPO), as 

well as the GAO and LOC. 2 U.S.C. 

1371. The Congressional Office of 

Compliance issued its study on 

December 31, 1996. The study 

concluded that the GPO is covered by 

Title II and the Office of Personnel 

Management’s regulations, rather than 

Title I and the Department of Labor 

regulations. In a letter dated April 25, 

2000, the GPO asked the Department to 

amend its FMLA regulations to delete 

the reference to GPO coverage, because 

that agency is covered by Title II. In its 

response of January 31, 2001, the 

Department concurred with the 

conclusion that the GPO is covered by 

Title II and stated that it would amend 

the regulations accordingly whenever 

they were next modified. The proposal 

would amend paragraphs (a) and (d) of 

this section to reflect these changes. 

Pursuant to section 604(f) of the 

Postal Accountability and Enhancement 

Act, Public Law 109–435, Dec. 20, 2006, 

120 Stat. 3242, the Postal Rate 

Commission was redesignated as the 

Postal Regulatory Commission, and the 

proposed rule would amend paragraph 

(b)(2) of this section to reflect this 

change. 

Section 825.110 (‘‘Eligible’’ employee) 

Current § 825.110 sets forth the 

eligibility standards employees must 

meet in order to take FMLA leave. 

Specifically, current § 825.110(a) 

restates the statutory requirement that to 

be eligible for FMLA leave, an employee 

must have been employed by an 

employer for at least 12 months, have 

been employed for at least 1,250 hours 

of service during the 12 months 

preceding the leave, and be employed at 

a worksite where 50 or more employees 

are employed by the employer within 75 

miles of the worksite. 

Current § 825.110(b) provides detail 

on the requirement that the employee 

must have been employed by the 

employer for at least 12 months, stating 

that the 12 months need not be 

consecutive. It further explains that if 

the employee was maintained on the 

payroll for any part of a week, that week 

counts towards the employee’s fulfilling 

the 12 months employment requirement 

and that 52 weeks is deemed equal to 12 

months. 

In its RFI, the Department sought 

comment on whether and how to 

address the treatment of combining 

nonconsecutive periods of employment 

to meet the 12 months of employment 

requirement. (71 FR at 69508) This 

eligibility criterion has been the subject 

of litigation. In Rucker v. Lee Holding, 

Co., 471 F.3d 6 (1st Cir. 2006), the court 

considered whether an employee’s 

previous employment of five years 

counted toward the 12-month 

employment eligibility requirement 

even though it was separated by a fiveyear break in service from his current 

employment. The First Circuit Court of 

Appeals held that ‘‘the complete 

separation of an employee from his or 

her employer for a period of years, here 

five years, does not prevent the 

employee from counting earlier periods 

of employment toward satisfying the 12- 

month requirement.’’ Id. at 13. In regard 

to whether a break in service of more 

than five years would be permissible, 

the court stated that this important 

policy issue should be resolved by the 

Department in the first instance as a part 

of its exercise of its statutory authority. 

Id. 

A number of commenters urged the 

Department to support the Rucker 

decision that prior months of service 

may be combined for eligibility 

purposes even when separated by 

breaks in service of many years. The 

National Partnership for Women & 

Families, for example, stated that ‘‘an 

arbitrary time limit on how long a 

worker could leave the employment of 

a particular employer would operate as 

an unfair and disproportionate burden 

on women workers. Many women leave 

work for extended periods of time, for 

example, to stay home with young 

children during their formative years.’’

(See comments by National Partnership 

for Women & Families.) 

Employer comments received on this 

issue overwhelmingly disagreed with 

the First Circuit ruling on combining 

prior periods of service together. For 

example, the University of Notre Dame 

stated, ‘‘There is a tremendous 

administrative burden associated with 

adopting the First Circuit Court of 

Appeals’ interpretation of section 

825.110 that an employer has the duty 

to aggregate non-consecutive service to 

establish ‘12 months of service.’ As we 

understand this possible interpretation, 

the ability to aggregate past service with 

current service to equate to 12 months 

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is virtually unlimited.’’ Other comments 

received on this issue included 

suggestions for amending the 

regulations to allow the employer to: 

disregard prior employment periods if 

all ties between the company and 

worker were severed; follow company 

policy or State law regarding the 

treatment of previous employment; and 

require that the 12 months of 

employment be consecutive. Employer 

commenters cited the administrative 

burden associated with combining 

previous employment periods as the 

rationale for their recommendations 

including that the FMLA itself only 

requires recordkeeping for three years 

and not indefinitely. 

The Department received comments 

similar to these in response to the 1993 

interim final regulations, which 

suggested limiting the period of time 

used in determining whether the 

employee had been employed by the 

employer for 12 months. In the final 

regulations, however, the Department 

declined to include such a limit, 

reasoning that ‘‘[m]any employers 

require prospective employees to submit 

applications for employment which 

disclose employees’ previous 

employment histories. Thus, the 

information regarding previous 

employment with an employer should 

be readily available and may be 

confirmed by the employer’s records if 

a question arises.’’ (60 FR at 2185) 

Furthermore, the Department did not 

find a basis under the statute or its 

legislative history for adopting the 

recommendations received in response 

to the Interim Final Rule. Id. Indeed, the 

statute does not directly address the 

issue of whether the 12 months of 

employment must be consecutive, and 

the legislative history provides limited 

insight into Congressional intent 

regarding extended breaks in 

employment. The Senate Committee 

Report in discussing the requirement 

that the employee must have worked for 

the employer for 12 months states 

‘‘[t]hese 12 months of employment need 

not have been consecutive.’’ S. Rep. No. 

103–3, at 23 (1993). The House 

Committee Report uses the same 

language in describing the 12-month 

requirement. See H.R. Rep. No. 103–8, 

pt. 1, at 35 (1993). 

Based on the Department’s experience 

in administering the FMLA, the First 

Circuit’s ruling in Rucker, and 

comments received in response to the 

RFI, the Department proposes a new 

§ 825.110(b)(1) to provide that although 

the 12 months of employment need not 

be consecutive, employment prior to a 

continuous break in service of five years 

or more need not be counted. Thus, 

under the proposed rule, if an employee 

in 2008 has worked five months for an 

employer and worked for the same 

employer for two full years in 1997–8, 

the employer would not have to 

consider the two years of prior 

employment in determining whether the 

employee currently is eligible for FMLA 

leave. The FMLA requires covered 

employers to maintain records for three 

years. 29 CFR 825.500(b) (‘‘[E]mployers 

must keep the records specified by these 

regulations for no less than three years 

and make them available for inspection, 

copying, and transcription by 

representatives of the Department of 

Labor upon request.’’). The Department 

is not proposing to change the threeyear record keeping requirements under 

FMLA. Thus, employers would have 

documentation to confirm previous 

employment for a former employee who 

at the time of rehiring had a break in 

service of three years or less. Where an 

employee relies on a period of 

employment that predates the 

employer’s records, it will be incumbent 

upon the employee to put forth some 

proof of the prior employment. This is 

consistent with the employee’s 

obligation to establish he or she is an 

eligible employee. See Novak v. 

MetroHealth Medical Center, 503 F.3d 

572, 577 (6th Cir. 2007); Burnett v. LFW, 

Inc., 472 F.3d 471, 477 (7th Cir. 2006). 

Of course, in determining whether an 

employee has met the eligibility 

criterion, an employer may have a 

policy to consider employment prior to 

a longer break in service, but in that 

event must do so in a uniform manner 

for all employees with similar breaks in 

service. 

The Department considered several 

alternatives in developing this proposed 

change to § 825.110(b). Because the 

legislative history states that the 12 

months of employment need not be 

consecutive, the Department could not 

adopt suggestions that any break in 

service ‘‘resets’’ the count for 

determining whether the employee has 

met the 12 months employment 

eligibility criterion. On the other hand, 

the Department believes it is not 

reasonable that the time frame used for 

considering prior employment for 

eligibility should be without end. At the 

same time, the Department is mindful of 

the comment by the National 

Partnership for Women & Families 

about the burden on women workers 

who may leave and reenter the 

workforce after the formative years of 

their children. But see S. Rep. No. 103–

3, at 16 (1993). The Department believes 

that the proposed outer limit of a five 

year break in service is a permissible 

interpretation of the statute and strikes 

an appropriate balance between 

providing re-employed workers with 

FMLA protections and not making the 

administration of the Act unduly 

burdensome for employers. 

However, the Department also 

proposes new paragraph (b)(2) of this 

section to address two exceptions to the 

general rule contained in proposed new 

paragraph (b)(1): a break in service 

resulting from the employee’s 

fulfillment of military obligations; and a 

period of approved absence or unpaid 

leave, such as for education or childrearing purposes, where a written 

agreement or collective bargaining 

agreement exists concerning the 

employer’s intent to rehire the 

employee. In these situations, 

employment prior to the break in 

service must be used in determining 

whether the employee has been 

employed for at least 12 months, 

regardless of the length of the break in 

service. 

The current discussion of how weeks 

are counted for fulfilling the 12 months 

requirement is proposed to be redesignated as paragraph (b)(3) of this 

section. 

Further, the Department proposes to 

add a new paragraph (b)(4) in this 

section to note that nothing prevents an 

employer from considering employment 

prior to a continuous break in service of 

more than five years when determining 

if an employee meets the 12-month 

employment criterion provided the 

employer does so uniformly with 

respect to all employees with similar 

breaks in service. 

Paragraph (c) of § 825.110 is proposed 

to be revised to address hours an 

employee would have worked for his or 

her employer but for the employee’s 

fulfillment of military service 

obligations. This revision codifies the 

protections and benefits offered by the 

Uniformed Services Employment and 

Reemployment Rights Act (USERRA). 

In addition, the Department proposes 

several changes to § 825.110 in light of 

the Ragsdale decision. Current 

§ 825.110(c) may result in some 

instances in employees who are 

ineligible for FMLA leave nonetheless 

being ‘‘deemed eligible’’ because of an 

employer’s failure to meet its burden of 

maintaining records needed to establish 

the employee’s eligibility. Current 

§ 825.110(d) may also result in an 

employee who is not eligible for FMLA 

leave being ‘‘deemed eligible’’ based on 

the employer’s lack of (or incorrect) 

notice to the employee. Read in concert 

with Ragsdale, in which the U.S. 

Supreme Court invalidated a similar 

provision in the current § 825.700(a), 

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the Department believes these 

provisions in current § 825.110(c) and 

(d) need to be modified. 

On the other hand, the Court in 

Ragsdale suggested that if an employer 

fails to notify an employee of his or her 

FMLA rights, the employee may have a 

remedy if the employee can show that 

the employer interfered with, restrained 

or denied the employee the exercise of 

his or her FMLA rights and that the 

employee suffered damages as a result. 

See Ragsdale, 535 U.S. at 89. Therefore, 

the Department has incorporated into 

the proposed text of § 825.300 a 

statement that in these situations if an 

employee shows individualized harm 

because the employer interferes with, 

restrains or denies the employee of his 

or her FMLA rights, the employee is 

entitled to the remedies provided by the 

statute. The Department also proposes 

to add this language to § 825.220, which 

addresses how employees are protected 

when they assert their FMLA rights, and 

proposed § 825.301, which addresses 

designation of FMLA leave. 

For organizational purposes, the 

notice provisions contained in current 

§ 825.110(d) have been moved to 

proposed § 825.300(b) with other notice 

requirements employers must provide to 

employees under the regulations. This 

organizational change should make it 

easier for employees and employers to 

locate these requirements by 

consolidating them into one section. 

The proposal includes a cross-reference 

to § 825.300 in paragraph (d) of 

§ 825.110. 

The Department also proposes to 

clarify the language in current 

§ 825.110(d) stating that employee 

eligibility determinations ‘‘must be 

made as of the date leave commences.’’

This language has led to confusion 

when employees who have fulfilled the 

1,250 hours worked requirement for 

eligibility, but not the 12 months of 

employment requirement, begin a block 

of leave. (Although periods of leave do 

not count towards the 1,250 hour 

requirement because leave is not ‘‘hours 

worked,’’ periods of leave do count 

towards the 12 months of employment 

requirement because the employment 

relationship continues, and has not been 

severed, during the leave.) For example, 

where an employee who has worked for 

an employer for 11 months and 1,300 

hours commences a three month block 

of leave for birth and bonding, 

confusion exists as to whether that 

portion of the leave that occurs after the 

employee reaches 12 months of 

employment is FMLA protected. 

Compare Babcock v. BellSouth 

Advertising and Publishing Corp., 348 

F.3d 73 (4th Cir. 2003), with Willemssen 

v. The Conveyor Co., 359 F.Supp.2d 813 

(N.D. Iowa 2005). The proposal clarifies 

that when an employee is on leave at 

the time he or she meets the 12-month 

eligibility requirement, the period of 

leave prior to meeting the statutory 

requirement is non-FMLA leave and the 

period of leave after the statutory 

requirement is met is FMLA leave. 

The Department proposes to delete 

current § 825.110(e), regarding counting 

periods of employment prior to the 

effective date of the FMLA, because the 

revisions proposed in § 825.110(b) 

discussed above render the provision 

unnecessary. 

The Department proposes no changes 

to current paragraph (f) (paragraph (e) in 

the proposal) of this section, which 

states that whether an employee works 

for an employer who employs 50 or 

more employees within 75 miles of the 

worksite is determined as of the date the 

leave request is made. In the RFI, the 

Department sought comment on the 

differing regulatory tests used for 

determining employee eligibility: the 

determination of whether the employee 

has been employed for at least 12 

months and for at least 1,250 hours in 

the 12 months preceding the leave is 

made as of the date the leave is to 

commence; however, the determination 

of whether 50 employees are employed 

by the employer within 75 miles of the 

worksite is made as of the date the leave 

request is made (emphasis added). (71 

FR at 69508). Some of the comments 

received in response to the RFI urged 

the Department to make these tests the 

same, namely, to require the 

determination of employee eligibility in 

both cases as of the date the leave is to 

begin. The Department appreciates the 

difficulty experienced by many 

employers in complying with these 

different regulatory tests; however, the 

proposal does not adopt this suggestion 

for the reasons discussed in the 

preamble to the 1995 final regulations: 

[T]he purpose and structure of FMLA’s 

notice provisions intentionally encourage as 

much advance notice of an employee’s need 

for leave as possible, to enable both the 

employer to plan for the absence and the 

employee to make necessary arrangements 

for the leave. Both parties are served by 

making this determination when the 

employee requests leave. Tying the worksite 

employee-count to the date leave commences 

as suggested could create the anomalous 

result of both the employee and employer 

planning for the leave, only to have it denied 

at the last moment before it starts if fewer 

than 50 employees are employed within 75 

miles of the worksite at that time. This would 

entirely defeat the notice and planning 

aspects that are so integral and indispensable 

to the FMLA leave process. 

(60 FR at 2186) 

Section 825.111 (Determining whether 

50 employees are employed within 75 

miles) 

Current § 825.111 sets forth the 

standards for determining whether an 

employer employs 50 employees within 

75 miles for purposes of employee 

eligibility. Paragraph (a)(3) of this 

section provides 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 is assigned or 

reports. 

In Harbert v. Healthcare Services 

Group, Inc., 391 F.3d 1140 (10th Cir. 

2004), the Court of Appeals held that 

§ 825.111(a)(3), as applied to the 

situation of an employee with a longterm 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. 

The court noted that Congress did not 

define the term ‘‘worksite’’ 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. 

The court stated that Congress 

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: 

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 

who has a regular place of work is defined 

as any site other than that place. 

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14See 29 CFR 825.106(e). In the preamble to the 

final rule, the Department agreed with comments 

that joint employment relationships present special 

compliance concerns for temporary help and 

leasing agencies in that the ease with which they 

may be able to meet their statutory obligations 

under FMLA may depend largely on the nature of 

the relationship they have established with their 

client-employers. However, the Department found 

there were no viable alternatives that could be 

implemented by regulation that would not also 

deprive eligible employees of their statutory rights 

to job reinstatement at the conclusion of FMLA 

leave. See 60 FR at 2182. 

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 Fed. Reg. 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. 

Id. 

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 

C.F.R. § 825.111(a)(2).’’ Id. at 1150 n.1. 

Nor did the court invalidate the 

regulatory definition in § 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.’’ Id. at 1153. 

The RFI requested specific 

information, in light of the court’s 

decision in Harbert, on the definition in 

§ 825.111 for determining employer 

coverage under the statutory 

requirement that FMLA-covered 

employers must employ 50 employees 

within 75 miles. 

Some commenters who argued that 

the current regulations are sound and do 

not require change 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. See 

comments by AFL-CIO and National 

Partnership for Women & Families. 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’’ and does not 

result in arbitrary differences between 

sole and joint employers under the 

FMLA. 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. 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.’’

On the other hand, 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 

sole and joint employers. . . .Under 29 C.F.R. 

§ 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. 

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. 

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[.]’’

After weighing the comments on this 

issue submitted in response to the RFI, 

the Department believes it needs to 

amend the regulations to reflect the 

decision in Harbert. The proposed rule 

would modify § 825.111(a)(3) to state 

that after an employee who is jointly 

employed is stationed at a fixed 

worksite for a period of at least one year, 

the employee’s worksite for purposes of 

employee eligibility is the actual 

physical place where the employee 

works. No changes are proposed with 

respect to employees whose worksite 

has not been fixed for at least one year. 

Also, no changes are proposed for 

§ 825.111(a)(2) with respect to 

employees who work out of their 

homes, except to update the current 

language ‘‘as under the new concept of 

flexiplace’’ to give it a more modern 

meaning, ‘‘as under the concept of 

flexiplace or telecommuting.’’

The Department has not adopted the 

comment from Pilchak Cohen & Tice 

that in order to qualify for FMLA job 

restoration with the client company, a 

contract employee should have at least 

12 months of service at that location. To 

do so would take away the job 

restoration protections for an employee 

who is entitled to FMLA leave under the 

law. However, the primary 

responsibility for placement following 

FMLA leave rests with the primary 

employer, the staffing firm in the 

example given. The client company 

must consent to the placement only if it 

has used another contract employee 

from the same staffing firm to 

temporarily fill the position during the 

period of the FMLA leave.14

Section 825.112 (Qualifying Reasons for 

Leave, General Rule) 

To make it easier to find information 

in the regulations, the Department has 

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reorganized some sections, including 

portions of current § 825.112, which sets 

forth the qualifying reasons that entitle 

an eligible employee to FMLA-protected 

leave. For example, there is no single 

place in the current regulations for the 

provisions that address leave taken for 

the birth of a child or placement of a 

child for adoption or foster care. Rather, 

these provisions are scattered 

throughout several sections of the 

current regulations, including 

paragraphs (c) and (d) of current 

§ 825.112. 

No changes have been made to 

current paragraphs (a) and (b) of this 

section except for the addition of new 

paragraph titles. Language from current 

paragraphs (c) and (d) addressing leave 

taken prior to the birth of a child or 

placement of a child for birth or 

adoption has been moved to new 

sections in the proposed regulations that 

cover pregnancy, birth, adoption and 

foster care. See proposed §§ 825.120 and 

825.121. 

Current paragraph (e) of this section 

that addresses foster care has been 

moved to proposed § 825.122, which 

provides definitions for the various 

family relationships covered by the Act. 

Similarly, current paragraph (g) of this 

section, which addresses leave for 

substance abuse treatment and an 

employer’s ability to take disciplinary 

action in connection with substance 

abuse, has been moved to proposed 

§ 825.119 that specifically addresses 

leave in connection with substance 

abuse. 

Sections 825.113, 825.114, and 825.115

(Serious Health Condition, Inpatient 

Care, and Continuing Treatment) 

In response to the RFI, the 

Department received extensive 

commentary on the regulatory definition 

of a serious health condition. The full 

range of comments is discussed in detail 

in Chapters III and IV of the 

Department’s 2007 Report on the RFI 

comments (see 72 FR at 35563; 35571). 

There are six separate definitions of 

serious health condition in the 

regulations. Many stakeholders 

addressed their comments toward what 

is called the ‘‘objective test’’ contained 

in the regulations at § 825.114(a)(2), 

which defines ‘‘continuing treatment’’

as: 

(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). Many of 

the comments—including several from 

health care providers—reported that the 

current regulatory definition is ‘‘vague 

and confusing.’’ The American College 

of Occupational and Environmental 

Medicine stated, ‘‘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.’’ The American 

Academy of Family Physicians agreed: 

‘‘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.’’

Many in the employer community 

focused their comments on the 

perceived lack of ‘‘seriousness’’ inherent 

in certain conditions the definition 

covers. The Coolidge Wall Company 

stated: ‘‘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.’’ ORC Worldwide concurred: 

‘‘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.’’ The City of 

Philadelphia wrote, ‘‘What constitutes a 

serious health condition? The definition 

is not clear.’’

Stakeholders proposed a number of 

potential revisions to the current 

definition of serious health condition. 

First, many commenters focused on the 

list of ailments in § 825.114(c), which 

states ‘‘Ordinarily, unless complications 

arise, the common cold, the flu, ear 

aches, upset stomach * * * etc., are 

examples of conditions that do not meet 

the definition of a serious health 

condition.’’ These commenters 

recommended that, consistent with the 

legislative intent that these conditions 

are not FMLA-covered conditions, this 

list be converted into a per se rule 

whereby these conditions can never be 

covered under the Act. That is, the flu—

no matter how severe—could not be a 

serious health condition. Second, some 

commenters recommended that the 

‘‘more than three days’’ period of 

incapacity in the objective test be 

measured by work days as opposed to 

calendar days. Here, too, the 

commenters cited to legislative history 

to support their position: ‘‘[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.R. 

Rep. No. 103–8, at 40 (1993); S. Rep. No. 

103–3, at 28 (1993) (emphasis added). 

Third, a number of stakeholders 

commented that the two health care 

provider visits in § 825.114(a)(2)(i)(B) 

must occur during the ‘‘more than three 

days’’ period of incapacity. Finally, a 

number of comments recommended that 

the required period of incapacity be 

extended from ‘‘more than three days’’

to five or seven or ten days or more. 

At the same time, the Department also 

received many comments from 

employees and employee groups who 

felt that the current objective test is a 

good, clear test that is serving its 

intended purpose. For example, the 

National Partnership for Women & 

Families stated, ‘‘[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.’’ Families USA 

concurred: ‘‘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.’’

After a review of the statute, the 

legislative history, and the significant 

feedback received from stakeholders in 

response to the RFI, the Department has 

not identified an alternative approach to 

the definition that would still cover all 

the types of conditions Congress 

intended to cover under the FMLA, but 

without also including some conditions 

that many believe the legislative history 

indicated should not be covered. The 

Department is well aware, as evidenced 

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by the extensive comments on this issue 

to the RFI, that many of the policy 

choices made in defining a serious 

health condition have not been without 

consequence. For example, the 

Department could put a higher degree of 

‘‘seriousness’’ into the regulatory 

definition if we chose to adopt any one 

of the suggestions offered by employers 

to increase the required number of days 

of incapacity or to simply adopt a work 

days rather than a calendar days 

standard. Doing so would also go a long 

way to eliminate what many employers 

believe to be the ‘‘weekend’’ problem—

that is, employers’ inability to know or 

verify that an employee, who works a 

regular Monday through Friday 

schedule, is off on Saturday and 

Sunday, then calls in sick on Monday 

claiming an FMLA absence, was in fact 

incapacitated during the two days he or 

she was off work for the weekend, and 

meets the more than three consecutive 

calendar days standard (see e.g., 

comment by Southwest Airlines Co., 

‘‘Unscheduled intermittent leave, which 

is typically based on recurring episodes 

of minor health conditions, gives 

employees many opportunities to 

misuse FMLA leave—to take vacations 

or a long weekend when they otherwise 

would be unable to do so * * *.’’). 

However, Congress itself did not 

provide a statutory ‘‘bright line’’ of 

demarcation for ‘‘seriousness.’’ The Act 

defines serious health condition as 

either ‘‘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). ‘‘Continuing treatment’’ is not 

further defined by the Act and Congress 

declined to establish any bright-line 

rules of what was covered and what was 

not. See discussion infra about chronic 

conditions specifically. 

A review of the Preamble 

accompanying the current regulations 

reflects the struggle then, as now, to 

craft such an objective definition of 

serious health condition that covers all 

the conditions intended to be covered 

by the Act while still giving meaning to 

the legislative history that minor 

ailments like colds and flus generally 

not be covered. It also reflects the choice 

then, as now, between an objective test 

versus a list of types of health 

conditions that would qualify as 

serious. See 60 FR at 2191. There is no 

question, as explained by the legislative 

history, that Congress expected minor 

conditions (those that last less than a 

few days) to not be covered by the 

FMLA because they would likely be 

covered by a company’s sick leave 

policy. See H.R. Rep. No. 103–8, at 40 

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

The difficulty is in adequately drawing 

the line between conditions that usually 

resolve in a few days, and those that are 

‘‘serious.’’ Medical conditions that are 

benign to some may be truly 

incapacitating to others. For example, 

the Communication Workers of America 

submitted a comment to the RFI noting 

an employee who had a severe reaction 

to poison oak and was incapacitated for 

more than three days even though most 

individuals would have only a mild 

reaction to poison oak. As a result of all 

these factors, the Department has 

retained essentially the current 

definition of ‘‘serious health condition,’’

with some slight modifications as 

discussed below. 

The Department has reorganized the 

structure of the definition so both 

employees and employers can better 

understand what constitutes a serious 

health condition. As noted above, 

serious health condition is currently 

defined in six different ways, and only 

one of the alternatives actually requires 

an absence of more than three 

consecutive calendar days under the 

current regulations. The Department 

believes that the new proposed structure 

will make the definition clearer. 

Section 825.113 (Serious Health 

Condition) 

Current § 825.113 addresses the 

definition of a parent, spouse, son or 

daughter. In the proposed regulations, 

the Department has moved this to 

§ 825.122 for purposes of organization. 

Proposed § 825.113 is titled ‘‘Serious 

health condition’’ and provides the 

general rules and accompanying 

definitions governing what constitutes a 

serious health condition. Proposed 

§ 825.113(a) provides the basic 

definition of what constitutes a serious 

health condition currently found in 

§ 825.114(a). Proposed paragraph (b) 

contains a definition of what constitutes 

‘‘incapacity’’ and incorporates language 

from current § 825.114(a)(2)(i) and (ii) 

without change. Proposed paragraph (c) 

contains the definition of ‘‘treatment’’

found in current § 825.114(b) without 

change. 

Proposed paragraph (d) addresses the 

types of treatments and conditions not 

ordinarily expected to be covered by the 

definition and incorporates language 

from current § 825.114(c). As discussed 

above, this section has been the focus of 

considerable debate as to when the list 

of conditions enumerated (colds, flus, 

etc.) are or are not serious health 

conditions. The Department received 

many comments in response to the RFI 

on this issue from both employer and 

employee groups but has not been able 

to construct an alternative regulatory 

definition better than the objective test 

of more than three days incapacity plus 

treatment. The language of current 

§ 825.114(c) listing common ailments 

and conditions—‘‘Ordinarily, unless 

complications arise, the common cold, 

the flu, ear aches, upset stomach, * * * 

etc., are examples of conditions that do 

not meet the definition of a serious 

health condition’’—was intended to be 

merely illustrative of the types of 

conditions that would not ordinarily 

qualify as serious health conditions. 

This sentence was not intended to 

create its own substantive definition of 

serious health condition that 

categorically excluded the listed 

conditions. Section 825.114(c) did not 

create a definition of covered conditions 

separate and apart from the regulatory 

definitions of serious health condition 

in § 825.114(a). 

The Department’s original opinion 

letter 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 noncovered 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). 

Unfortunately, this was an incorrect 

statement of the law. As the Department 

explained in its subsequent 1996 

opinion letter: 

The FMLA regulations * * * provide 

examples, in section 825.114(c), of 

conditions that ordinarily, unless 

complications arise, would not meet the 

regulatory definition of a serious health 

condition and would not, therefore, qualify 

for FMLA leave: the common cold, the flu, 

ear aches, upset stomach, minor ulcers, 

headaches other than migraine, routine 

dental or orthodontia problems, periodontal 

disease, etc. Ordinarily, these health 

conditions would not meet the definition in 

825.114(a)(2), as they would not be expected 

to last for more than three consecutive 

calendar days and require continuing 

treatment by a health care provider as 

defined in the regulations. If, however, any 

of these conditions met the regulatory criteria 

for a serious health condition, e.g., an 

incapacity of more than three consecutive 

calendar days that also involves qualifying 

treatment, then the absence would be 

protected by the FMLA. 

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Wage and Hour Opinion Letter FMLA–

86 (Dec. 12, 1996) (emphasis in 

original). This objective regulatory 

definition was upheld as a reasonable 

implementation of the Act by two 

United States Courts of Appeals even 

though the definition may sweep into its 

coverage some conditions Congress did 

not necessarily anticipate would be 

covered. See Miller v. AT&T Corp., 250 

F.3d 820, 835 (4th Cir. 2001) (‘‘It is 

possible, of course, that the definition 

adopted by the Secretary will, in some 

cases— and perhaps even in this one—

provide FMLA coverage to illnesses that 

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.’’); Thorson v. Gemini, Inc., 

205 F.3d 370, 380 (8th Cir. 2000) 

(‘‘Under the DOL’s definition, it is 

possible that some absences for minor 

illnesses that Congress did not intend to 

be classified as ‘serious health 

conditions’ may qualify for FMLA 

protection. But 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.’’). 

The Department considered whether 

the list of examples of non-serious 

ailments such as colds and flus in 

current § 825.114(c) should be deleted 

as surplusage. Both the Fourth and 

Eighth Circuit courts treated the list of 

examples of non-serious ailments in 

current § 825.114(c) as merely clarifying 

that common ailments such as colds and 

flu normally will not qualify for FMLA 

leave because they generally will not 

satisfy the regulatory criteria for a 

serious health condition. The 

Department continues to believe that the 

§ 825.114(c) list serves a baseline 

purpose as explanatory language similar 

to that which is included in a preamble. 

Therefore, the sentence has been 

retained in the proposed regulations. 

Nevertheless, the Department agrees 

with the Fourth and Eighth Circuit 

Courts of Appeals and restates its view 

that the Department’s objective 

regulatory definition is dispositive. 

Section 825.114 (Inpatient Care) 

Proposed § 825.114, titled, ‘‘Inpatient 

care,’’ defines what constitutes inpatient 

care. As noted above, the Department 

proposes a stand-alone definition of 

‘‘incapacity’’ in § 825.113(b) in contrast 

to the current regulations. Therefore, the 

definitional language of incapacity has 

been removed from the definition of 

‘‘inpatient’’ care, but the requirement 

remains and a cross-reference to 

§ 825.113(b) has been included. 

Section 825.115 (Continuing Treatment) 

Proposed § 825.115, titled 

‘‘Continuing treatment,’’ defines 

continuing treatment for purposes of 

establishing a serious health condition. 

The five different definitions are 

contained in § 825.115(a)–(e). Proposed 

§ 825.115(a) (‘‘Incapacity and 

treatment’’) incorporates language from 

current § 825.114(a)(2)(i)(A) and (B), 

which establishes that an employee can 

meet this definition if, in connection 

with a period of incapacity of more than 

three consecutive calendar days, the 

employee or family member has one 

visit to a health care provider and a 

regimen of continuing treatment, such 

as a prescription, or two visits to a 

health care provider. 

As discussed further below 

concerning proposed § 825.125, the 

Department proposes a conforming 

change in the definition of ‘‘continuing 

treatment’’ to generally recognize 

physician assistants as health care 

providers, which eliminates the need to 

refer to them separately in this section 

as performing ‘‘under direct supervision 

of a health care provider’’ (see current 

§§ 825.114(a)(2)(i)(A) and (iii)(A)). 

Otherwise, the current definition has 

been retained with one further proposed 

clarification. The Department proposes 

to specify that the two visits to a health 

care provider must occur within 30 days 

of the beginning of the period of 

incapacity unless extenuating 

circumstances exist, instead of the 

completely open-ended time frame 

under the current regulations. 

Accordingly, if an ill employee visits 

his/her health care provider, is told not 

to report to work for more than 3 days 

due to the health condition but is not 

prescribed any medication, whether the 

condition is considered a serious health 

condition for FMLA purposes will 

depend on whether the health care 

provider determines that additional 

treatment is needed within 30 days of 

the beginning of the initial period of 

incapacity (for example, whether the 

provider determines that an additional 

follow-up appointment should be 

scheduled in two weeks or two months). 

The beginning of the period of 

incapacity will usually correspond with 

the date of the employee’s first absence, 

however, as under the current 

regulations, the more than three 

calendar day period of incapacity may 

commence on a day on which the 

employee is not scheduled to work. See 

60 FR 2195. 

The Department proposes this 

clarification because it believes, as a 

practical matter, that leaving the 

treatment requirement open-ended does 

not provide sufficient guidance for 

determining when the employee has a 

qualifying serious health condition. For 

example, under the current definition, 

an employer could decide that an 

employee does not qualify for FMLA 

coverage a week after an employee has 

been to see a health care provider on 

one occasion and has had more than 

three days of incapacity but no followup visit during that week-long time 

period. If the employee had a follow-up 

visit three months later, however, the 

test would be met but the employer may 

not be aware of that fact. The 

Department does not believe the 

regulations should leave such 

determinations open-ended and 

unresolved indefinitely. Rather, the 

period of incapacity and the timing of 

the health care provider’s treatment 

regimen should be connected in a 

temporal sense to meet the definitional 

requirement and not left undefined as 

under the current rule. 

The Department received many 

comments to the record on this issue, 

including a number suggesting that the 

Department adopt into regulation the 

interpretation offered by the United 

States Court of Appeals for the Tenth 

Circuit that the two treatments actually 

occur during the period of more than 

three days’ incapacity in order to qualify 

as a serious health condition. See Jones 

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

1323 (10th Cir. 2005) (‘‘[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).’’). However, the 

Department believes the proposed 30- 

day limitation is more appropriate in 

that it guards against employers making 

quick judgments that deny FMLA leave 

when employees otherwise should 

qualify for FMLA protections. The 

Department is also aware that 

occasionally an employee may need a 

second visit to a health care provider or 

further diagnostic testing within a 30- 

day period but may experience 

difficulty scheduling the second 

appointment in time. The regulations 

therefore acknowledge an ‘‘extenuating 

circumstances’’ exception to the 30-day 

rule in proposed § 825.115(a)(1). 

The Department is not proposing to 

extend the 30-day rule to 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. 

The Department’s enforcement 

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experience suggests that the doctor visit 

which results in a regimen of continuing 

treatment generally occurs close in time 

to the more than three days of 

incapacity. Accordingly, the 30-day 

limitation is not needed and could, in 

fact, extend the time period for 

receiving the regimen of treatment well 

beyond what is current practice. The 

Department, however, seeks comments 

on this approach, and whether this 

regulatory provision should be changed. 

Proposed § 825.115(b), titled 

‘‘Pregnancy or prenatal care,’’

incorporates language from current 

§ 825.114(a)(2)(ii) without change 

except for a reference to the new 

consolidated section found in proposed 

§ 825.120 addressing leave for 

pregnancy and childbirth discussed in 

detail below. The Department wishes to 

emphasize, however, that the phrase 

‘‘incapacity due to pregnancy, or for 

prenatal care’’ includes time spent with 

a health care provider for prenatal care 

purposes. By definition, while an 

employee is visiting a health care 

provider for prenatal care purposes (i.e., 

a doctor’s appointment), the employee 

is unable to work and therefore 

incapacitated. In contrast, however, an 

employee is not entitled to FMLA leave 

to visit the store to purchase infant 

clothes because the employee is not 

incapacitated in such circumstances. In 

a case where a male employee is needed 

to care for (as defined by proposed 

§ 825.124) a pregnant spouse who is 

incapacitated or requires prenatal care, 

the male employee will be entitled to 

FMLA leave. For example, a male 

employee’s pregnant spouse may have 

severe morning sickness and need his 

assistance. Similarly, a male employee 

may be entitled to FMLA leave to 

accompany his pregnant spouse to a 

doctor’s appointment for prenatal care. 

In this case, physical care may not be 

needed, but psychological care may be 

involved. 

Proposed § 825.115(c), titled ‘‘Chronic 

conditions,’’ incorporates language from 

current § 825.114(a)(2)(iii) with one 

modification. The Department received 

extensive comments about the 

definition of ‘‘chronic’’ serious health 

conditions in response to the RFI. As a 

result, the Department provided 

extensive discussion and explanation in 

its Report on the RFI to the evolution of 

the ‘‘chronic’’ serious health condition 

definition. See Chapter IV of the RFI 

Report, 72 FR at 35571. 

As the Department explained in the 

Report on the RFI comments, ‘‘[t]here 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.’ ’’ 72 

FR at 35572 (internal citations omitted). 

Many employer commenters were 

highly critical of the choice made by the 

Department in the 1995 final rule to 

allow employees to ‘‘self-treat’’ for 

‘‘any’’ period of incapacity due to 

chronic conditions. See current 

§ 825.114(e): ‘‘Absences attributable to 

incapacity under paragraphs (a)(2)(ii) or 

(iii) [chronic conditions] qualify for 

FMLA leave even though the employee 

or the family member does not receive 

treatment from a health care provider 

during the absence, and even if the 

absence does not last more than three 

days.’’ Indeed, many employer 

commenters believe that coverage for 

absences due to chronic conditions 

which are accompanied only by selftreatment impermissibly undercuts the 

statutory requirement that intermittent 

leave may be taken only when 

medically necessary (29 U.S.C. 

2612(b)(1)) as there is no way to verify 

the medical necessity of an absence for 

self-treatment. (See, e.g., discussion of 

Workplace Consequences of 

Unscheduled Intermittent Leave in the 

Report on the RFI comments, 72 FR at 

35575.) Employee representatives 

commenting on the RFI, however, 

stressed that self-treatment is 

appropriate for many chronic conditions 

and that coverage for such absences is 

crucial to ensuring that employees with 

chronic serious health conditions are 

able to maintain their employment. Id. 

at 35575; 35580. 

While many employers urged the 

Department to alter the definition so 

that only chronic conditions that they 

perceive to be ‘‘serious’’ will be covered, 

and to eliminate the self-treatment 

provision, the Department declines to 

do so. As explained in the preamble 

when the current rule was adopted in 

1995, 

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 (i.e., from several months to several 

years), often without affecting day-to-day 

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 at 2195. 

Although the Department 

acknowledges employers’ concerns 

regarding the inability to verify the 

medical necessity for an absence 

involving self-treatment, to eliminate 

coverage for such absences at this time 

would, like changing the calendar days 

standard to a work days standard, 

effectively render many currentlycovered employees who have received 

the protections of the law ineligible. As 

the Department acknowledged in the 

Report on the RFI, it has no way to 

distinguish between those employees 

with chronic conditions who may be, in 

their employers’ views, taking 

advantage of the self-treatment standard 

and those who are not and for whom the 

standard has worked very well. 

The Department does propose one 

modification to the definition of a 

chronic serious health condition. 

Current § 825.114(a)(2)(iii) provides that 

a chronic serious health condition 

‘‘[r]equires periodic visits for treatment’’

(§ 825.114(a)(2)(iii)(A)). The current 

regulations do not define the term 

‘‘periodic.’’ The Department 

understands that some employers have 

chosen to provide their own definition 

of the term ‘‘periodic’’ for FMLA 

purposes to the detriment of employees. 

For example, one employer defined the 

term to require a visit to a health care 

provider at least once a month in order 

to satisfy this prong of the continuing 

treatment definition. The Department 

believes that not all serious health 

conditions Congress intended to cover 

require such frequent visits. For 

example, an employee may have 

epilepsy, which renders the employee 

unable to work periodically but does not 

require monthly doctor visits since the 

employee knows how to self-medicate. 

At the same time, because ‘‘periodic’’ is 

left open-ended in the current 

regulations, employers have struggled 

with the ‘‘periodic’’ requirement. The 

Department believes such a lack of 

definition leaves employers and 

employees in an untenable situation. 

(See Executive Summary and Chapters 

IV and VI of the Department’s 2007 

Report on the RFI comments, 72 FR at 

35550, 35571, 35588.) The Department 

proposes to define the term ‘‘periodic’’

as twice or more a year, based on an 

expectation that employees with 

chronic serious health conditions 

generally will visit their health care 

providers with that minimum 

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frequency, but they may not visit them 

more frequently, especially if their 

conditions are stable. The Department 

believes this is reasonable but seeks 

public comments on whether the 

proposed definition of the term 

‘‘periodic’’ is appropriate. 

Proposed § 825.115(d), titled 

‘‘Permanent or long-term conditions,’’

incorporates language from current 

§ 825.114(a)(2)(iv) without change. 

Proposed § 825.115(e), titled 

‘‘Conditions requiring multiple 

treatments,’’ incorporates language from 

current § 825.114(a)(2)(v), which 

provides coverage for any period of 

absence to receive multiple treatments 

by a health care provider for restorative 

surgery after an accident or other injury, 

or for a condition that would likely 

result in a period of incapacity of more 

than three consecutive calendar days in 

the absence of medical intervention or 

treatment for conditions such as cancer, 

severe arthritis, and kidney disease. 

Multiple treatments are required to 

satisfy this prong of the continuing 

treatment definition. 

Sections 825.116 Through 825.118 

(Reserved) 

Provisions in current § 825.116 

defining the phrase ‘‘needed to care for’’

a family member are moved to proposed 

§ 825.124, discussed below. Provisions 

in current § 825.117 addressing the 

‘‘medical necessity’’ for taking and 

scheduling intermittent or reduced 

schedule leave are moved to proposed 

§§ 825.202 and .203, discussed below. 

Current § 825.118 defining ‘‘health care 

provider’’ is renumbered as § 825.125 of 

the proposed rule. Section numbers 

.116–.118 of the current rule are, 

therefore, reserved to reflect these 

organizational changes, as discussed 

further below. 

Section 825.119 (Leave for Treatment of 

Substance Abuse) 

The Department proposes to create a 

single, consolidated section to address 

substance abuse, which is currently 

addressed in two different sections of 

the regulations, specifically 

§§ 825.112(g) and .114(d). Current 

§ 825.112(g) provides that while FMLA 

leave is available for substance abuse 

treatment, treatment does not prevent an 

employer from taking employment 

action against an employee for violating 

the employer’s substance abuse policy, 

such as being intoxicated at work. The 

section further explains when such 

action is appropriate. Current 

§ 825.114(d) states that substance abuse 

treatment may be covered as a serious 

health condition in certain 

circumstances. 

Section 825.120 (Leave for Pregnancy or 

Birth) 

The Department proposes to create a 

single section that addresses FMLA 

rights and responsibilities related to 

pregnancy and birth of a child. The 

current regulations contain regulatory 

guidance pertaining to pregnancy and 

birth throughout a number of regulatory 

sections. This new proposed section 

collects the existing guidance from the 

various regulatory sections into one 

comprehensive section. 

Section 825.120(a)(1) of the proposed 

rule, titled ‘‘[g]eneral rules,’’ restates 

language from current § 825.112(b) that 

both the mother and father are entitled 

to FMLA leave for the birth of their 

child. Proposed paragraph (a)(2) of this 

section restates language from current 

§ 825.201 explaining that leave 

following the birth of a healthy child 

(‘‘bonding time’’) must be completed 

within a year from the birth unless State 

law provides for a longer period of time 

or with an employer’s agreement. Based 

on the statutory requirements (see 29 

U.S.C. 2612(a)(2)), if leave is extended 

beyond a year from the birth per State 

law or employment agreement, the 

additional leave would not receive the 

FMLA protections. Proposed paragraph 

(a)(3) of this section incorporates 

language from current § 825.202(a), that 

husbands and wives who work for the 

same employer may be limited to a 

combined 12 weeks of FMLA leave for 

the birth or placement for adoption or 

foster care of a healthy child, or to care 

for an employee’s parent with a serious 

health condition. (See 29 U.S.C. 

2612(f).) This limitation does not apply 

if only one spouse is eligible for FMLA 

leave. For example, if a wife 

commenced employment with the 

employer only 6 months earlier and 

therefore does not meet the 12-month/ 

1,250-hour eligibility requirement, but 

the husband has worked for the 

employer for five years and otherwise 

meets the eligibility requirements, the 

husband could take twelve weeks of 

leave to be with the newborn child. 

However, if the husband and wife have 

both worked for the same employer for 

five years and the husband already has 

used six weeks of his entitlement to care 

for his parent, the wife may be limited 

to six weeks to be with the newborn 

child (the wife would also be entitled to 

leave for her own serious health 

condition related to the birth). 

Proposed § 825.120(a)(4) combines 

language from current 

§§ 825.114(a)(2)(ii), 825.114(e), and 

825.112(a) and (c) to make clear that a 

mother may be entitled to FMLA leave 

for both prenatal care and incapacity 

related to pregnancy, and the mother’s 

serious health condition following the 

birth of a child. 

Proposed § 825.120(a)(6) has been 

added to reemphasize that both spouses 

may each take their full 12 weeks of 

leave to care for a child with a serious 

health condition, regardless of whether 

the spouses work for the same 

employer. 

Proposed § 825.120(b), titled 

‘‘[i]ntermittent and reduced schedule 

leave,’’ combines language from current 

§§ 825.203(b) and 825.204(a) on the use 

of intermittent or reduced schedule 

leave for pregnancy and birth of a child. 

See 29 U.S.C. 2612(b)(1). Current 

§ 825.203(b) provides that leave taken 

after the birth of a healthy newborn 

child may only be taken on an 

intermittent or reduced leave schedule 

if the employer agrees. Current 

§ 825.204(a) explains that in these cases, 

an employer may temporarily transfer 

an employee to an available alternative 

position that better accommodates the 

need for intermittent or reduced 

schedule leave if the employer does in 

fact agree to such a leave schedule. See 

29 U.S.C. 2612(b)(2). The hours not 

worked due to a reduced leave schedule 

in this situation are considered 

intermittent FMLA leave and are 

counted toward the employee’s FMLA 

leave entitlement (see proposed 

§ 825.205). Proposed § 825.120(b) 

emphasizes that if intermittent or 

reduced schedule leave is medically 

necessary for a serious health condition 

of the mother or the newborn child, no 

employer agreement is necessary. 

Section 825.121 (Leave for Adoption or 

Foster Care) 

For the same reasons discussed above, 

the Department also proposes a single 

section that discusses FMLA rights and 

obligations with regard to adoption and 

foster care. The current regulations 

contain guidance pertaining to adoption 

and foster care throughout a number of 

sections. This new proposed section 

collects the existing guidance from the 

various regulatory sections into one 

comprehensive section on adoption and 

foster care. 

Proposed § 825.121(a) is titled 

‘‘[g]eneral rules’’ and provides that leave 

for adoption or foster care may begin 

prior to the actual birth or adoption. 

Examples incorporated from current 

§ 825.112(d) include leave to attend 

counseling sessions, appear in court, 

consult with an attorney or doctor, or 

submit to a physical examination. The 

proposed section also cross-references 

proposed paragraph (b) of this section, 

which explains the statutory limitation 

that leave following the placement for 

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adoption and foster care of a healthy 

child can only be taken on an 

intermittent or reduced schedule basis if 

the employer agrees. See 29 U.S.C. 

2612(b)(1). 

Proposed § 825.121(a)(2) contains 

language from current § 825.201 

explaining that leave for adoption or 

foster care must be completed within a 

year from the placement unless State 

law provides for a longer period of time 

or with an employer’s agreement. Such 

leave taken under State law or with an 

employer’s agreement beyond the one 

year period is not protected as FMLA 

leave. Section 825.121(a)(3) also 

incorporates language from current 

§ 825.202(a), that husbands and wives 

working for the same employer are 

limited to a combined 12 weeks of leave 

for purposes of bonding with the 

healthy adopted or foster child, to care 

for the healthy child following the birth 

of the child, and to care for an 

employee’s parent with a serious health 

condition. As discussed above under 

proposed § 825.120, this limitation does 

not apply if only one spouse is eligible 

for FMLA leave. See 29 U.S.C. 2612(f). 

Proposed § 825.121(a)(4) has been 

added to emphasize that both spouses 

may each take their full twelve weeks of 

FMLA leave to care for an adopted or 

foster child with a serious health 

condition, regardless of whether the 

spouses work for the same employer. 

Proposed § 825.121(b), titled ‘‘[u]se of 

intermittent and reduced schedule 

leave,’’ combines language from current 

§§ 825.203(b) and 825.204(a) on the use 

of intermittent or reduced schedule 

leave for adoption and foster care. 

Current § 825.203(b) provides that leave 

taken after the placement of a healthy 

child for adoption or foster care may 

only be taken on an intermittent or 

reduced leave basis if the employer 

agrees. See 29 U.S.C. 2612(b)(1). Current 

§ 825.204(a) explains that in such cases, 

an employer may temporarily transfer 

an employee to an available alternative 

position that better accommodates the 

need for intermittent or reduced 

schedule leave. See 29 U.S.C. 

2612(b)(2). The hours not worked due to 

a reduced leave schedule in this 

situation are considered intermittent 

FMLA leave and are counted toward the 

employee’s FMLA leave entitlement (see 

proposed § 825.205). Proposed 

§ 825.121(b) provides that if intermittent 

or reduced schedule leave is needed for 

a serious health condition of the 

adopted or foster child, no employer 

agreement is necessary. 

Section 825.122 (Definition of Spouse, 

Parent, Son or Daughter, Adoption and 

Foster Care) 

Current § 825.113 provides definitions 

of spouse, parent, and son or daughter 

for purposes of determining whether an 

employee qualifies for FMLA leave. 

These definitions are repeated in 

current and proposed § 825.800. The 

Department proposes to move the 

existing section to proposed § 825.122 

for purposes of organization. Proposed 

§ 825.122(a) and (b) defining spouse and 

parent are unchanged except for minor 

editorial changes in paragraph (b) to the 

definition of ‘‘parent.’’

Proposed § 825.122(c) that addresses, 

and is now titled, ‘‘[s]on or daughter,’’

has been rewritten for clarity. The one 

substantive addition the Department 

proposes is to specify that the 

determination of whether an adult child 

has a disability should be made at the 

time leave is to commence. In Bryant v. 

Delbar, 18 F.Supp.2d 799 (M.D. Tenn. 

1998), the court conducted an analysis 

of whether an adult child had a 

disability for purposes of FMLA 

coverage based on facts and 

circumstances that occurred well after 

the leave commenced. In the 

Department’s view, employers should 

decide FMLA eligibility based on 

information at the time the leave begins. 

A rule that takes into account 

information acquired after-the-fact 

causes confusion about coverage for 

both employees and employers. The 

Department aims to eliminate such 

confusion by adding the proposed 

language. 

Proposed § 825.122(c)(1), (2) and (3) 

remain unchanged from current 

§ 825.113(c)(1), (2) and (3). 

A new § 825.122(d) has been added 

that defines ‘‘adoption.’’ The current 

regulations do not define the term, and 

the Department believes that providing 

such guidance will benefit both 

employees and employers. Language 

from current § 825.112(d) has been 

retained to clarify that the adoption 

source is not relevant to FMLA leave 

eligibility. 

Proposed § 825.122(e), titled ‘‘[f]oster 

care,’’ incorporates the definition of 

foster care from the current § 825.112(e) 

without change. 

Proposed § 825.122(f) addresses the 

documentation of relationships and 

incorporates the current language from 

§ 825.113(d) with two clarifications. 

First, the current regulation states that 

in addition to a child’s birth certificate 

or a court document, a simple statement 

from an employee is sufficient to 

establish a family relationship. The 

Department adds language in proposed 

paragraph (f) to clarify that the example 

of a statement by the employee as 

documentation should be a sworn, 

notarized statement. This provides 

consistency with the other examples 

used in the current regulations. Second, 

the Department proposes to add the 

example of a submitted and signed tax 

return as evidence of a qualified family 

relationship because in the case of an in 

loco parentis relationship, it may be 

difficult to determine what kind of proof 

may be reasonable to establish such a 

relationship. 

Section 825.123 (Unable to Perform the 

Functions of the Position) 

The Department proposes to 

renumber current § 825.115 as § 825.123 

in the proposed regulation due to other 

organizational changes made. Proposed 

paragraph (a), titled ‘‘[d]efinition,’’

defines the statutory requirement that 

an individual be unable to perform the 

functions of a job in order to qualify for 

FMLA leave. The current regulatory 

definition states that the employee must 

be ‘‘unable to work at all’’ or be unable 

to perform ‘‘one or more of the essential 

functions of the job.’’ The Department 

proposes no substantive changes to this 

definition. 

The Department proposes no 

substantive changes to current 

paragraph (b), now titled ‘‘[s]tatement of 

functions,’’ except to include language 

from current § 825.115 to clarify that the 

employer may provide a statement of 

the employee’s essential functions to the 

employee’s health care provider, and to 

clarify that the employer may require 

that the health care provider’s medical 

certification specify what functions the 

employee cannot perform. This 

information is part of the ‘‘medical 

facts’’ the statute states an employer 

may obtain as part of the medical 

certification. See 29 U.S.C. 

2613(b)(4)(B). 

Section 825.124 (Needed to Care for a 

Family Member) 

The current regulations define the 

phrase ‘‘needed to care for’’ a family 

member in § 825.116. The Department 

proposes to move this section to 

proposed § 825.124 and clarify that the 

employee need not be the only 

individual or family member available 

to care for the qualified family member. 

A number of comments received in 

response to the RFI recommended that 

the Department impose some sort of 

limitation on what it means for an 

employee to be ‘‘needed to care for’’ a 

family member. A number of 

commenters, including the National 

Council of Chain Restaurants suggested 

that ‘‘care’’ be limited to actual physical 

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care only. The National Council of 

Chain Restaurants also recommended 

that the employee be required to 

provide a written certification ‘‘that 

explains why the employee cannot rely 

upon other family members to care for’’

the qualifying family member. 

Similarly, the law firm of Blank Rome 

suggested that the regulations ‘‘be 

modified to allow for leave under these 

circumstances only when there is no 

other alternative care giver or provider.’’

The Pepsi Bottling Group recommended 

that employers be ‘‘able to deny or delay 

leave if an employee has a family 

member at home who is available to 

provide necessary medical care.’’ The 

United Parcel Service suggested 

‘‘add[ing] language requiring that 

requests for intermittent leave to care for 

a family member be supported by a 

representation that the employee is the 

only family member available to provide 

such care.’’ Finally, Manufacturers 

Alliance recommended the Department 

clarify that the term ‘‘needed to care’’

for a family member means ‘‘that it [is] 

necessary for the employee to actually 

be providing care during * * * work 

time.’’

After review of these comments, the 

Department has declined to adopt any of 

these proposals. The statute provides 

leave ‘‘[i]n order to care for the spouse, 

or a son, daughter, or parent, of the 

employee, if such spouse, son, daughter, 

or parent has a serious health 

condition.’’ 29 U.S.C. 2612(a)(1)(C). 

There is no additional limitation that 

the employee be the only available care 

giver in order to take FMLA leave. 

Indeed, it will often be the case that 

there are multiple potential care 

givers—none of whom is the only care 

giver without alternative—but all of 

whom would need to take FMLA leave 

in order to provide care. Moreover the 

legislative history to the Act indicates 

that the ‘‘phrase ‘to care for’ * * * be 

read broadly to include both physical 

and psychological care.’’ H.R. Rep. No. 

103–8, at 36 (1993); S. Rep. No. 103–3, 

at 24 (1993). The Department intends to 

retain the psychological care language 

and to make clear that employers cannot 

impose an additional requirement upon 

employees for FMLA leave purposes 

that the employee needs to be the only 

individual, or even family member, 

available to provide care to the qualified 

family member with a serious health 

condition. 

Section 825.125 (Definition of Health 

Care Provider) 

Current § 825.118 is renumbered as 

§ 825.125 in the proposed rule to reflect 

organizational changes. In its comments 

to the RFI, the American Academy of 

Physician Assistants noted that 

physician assistants (PAs) are usually 

recognized as authorized health care 

providers for FMLA purposes under the 

existing provision that recognizes ‘‘[a]ny 

health care provider from whom an 

employer or the employer’s group 

health plan’s benefits manager will 

accept certification of the existence of a 

serious health condition to substantiate 

a claim for benefits’’ (current 

§ 825.118(b)(4)). Other language in 

§ 825.118(c) of the current rule has 

created confusion over the status of PAs, 

however, where the phrase ‘‘authorized 

to practice in the State’’ is defined to 

mean that ‘‘the provider must be 

authorized to diagnose and treat 

physical or mental health conditions 

without supervision by a doctor or other 

health care provider.’’ The Department 

proposes to clarify the status of PAs as 

health care providers under proposed 

§ 825.125(b)(2) (formerly § 825.118(b)(2) 

in the current rule) by adding 

‘‘physician assistants’’ to the list of 

recognized health care providers and by 

deleting the requirement that PAs 

operate ‘‘without supervision by a 

doctor or other health care provider.’’

The Department has made 

corresponding changes to proposed 

§ 825.115 (Continuing treatment) and 

§ 825.800 (Definitions) to reflect this 

change that PAs would now generally 

be considered health care providers. 

Section 825.200 (Amount of Leave) 

This section explains the basic leave 

entitlement provided under the Act, as 

well as how to determine the 12-month 

period during which the FMLA leave 

entitlement may be used. The 

Department asked in its December 2006 

RFI whether ‘‘scheduled holidays 

[should] count against an employee’s 12 

weeks of FMLA leave when the 

employee is out for a full week as they 

do now?’’ (71 FR at 69509) The 

Department heard from all sides on this 

issue. The Unum Group stated, 

‘‘Changing this process could add 

difficulty to the already complex 

method of calculating FMLA leave 

entitlements.’’ The Pennsylvania 

Turnpike Commission agreed: ‘‘We feel 

that scheduled holidays should 

continue to count against the 12 weeks 

of FMLA. That block of time is covered 

in the employee request—it is incidental 

that they would not have had to work 

due to a holiday. Because of differing 

holiday eligibility for different 

employee groups (i.e. mgmt/union), it 

would greatly complicate the 

calculation of eligible days if holidays 

were excluded. It would be more time 

consuming for an FMLA administrator 

to calculate the amount of time/days an 

employee [would] be off under FMLA if 

they had to make sure to subtract any 

holidays that the employee is eligible 

for during the time period they need to 

be off.’’ The State of Ohio said it 

‘‘supports the current regulations in this 

area, and believes that scheduled 

holidays should continue to be counted 

against an employee’s 12 weeks of 

FMLA leave when the employee is out 

a full week. This provision would allow 

employee’s 12 weeks of FMLA leave to 

be treated consistently with employees 

participating in other Ohio benefit 

programs.’’ The National Partnership for 

Women & Families disagreed: ‘‘Under 

the current regulations, such holidays 

are counted as part of an employee’s 

FMLA leave. We believe such a policy 

is inconsistent with how holidays are 

typically treated in other leave contexts. 

If an employee is out on FMLA leave 

and a scheduled holiday occurs, we 

believe the employee should be able to 

use holiday leave just like other 

employees rather than losing a day of 

FMLA leave. Thus, we would urge DOL 

to modify the regulations accordingly.’’

A number of commenters noted a 

serious problem that would occur if 

holidays were not counted toward 

FMLA leave when an employee is out 

on a weekly block of leave; that is, such 

a rule could result in the employee 

obtaining greater than 12 weeks of 

FMLA leave per year. One commenter 

stated: ‘‘For some employees counting 

holidays or days not worked during a 

full week of absence, may mean 

employees could be gone beyond the 12 

weeks/60 days if it is determined that 

non-work days or holidays are not 

counted as part of the work week thus 

pro-longing an FMLA beyond the 60 

days/12 weeks[.]’’ The United Parcel 

Service concurred: ‘‘DOL should 

maintain its current position that 

holidays occurring during an 

employee’s scheduled work-week count 

against the 12 weeks of leave. That 

position is supported by the plain 

language of the FMLA, which provides 

for 12 weeks of unpaid leave, not 12 

weeks of leave plus all holidays falling 

therein.’’ The Commonwealth of 

Pennsylvania noted, ‘‘Because the law 

references the absence period in terms 

of weeks, rather than days, and 

considers calendar days rather than 

work days, the practice of counting 

holidays seems to be within the spirit of 

the Act and regulations.’’

Upon review of the comments 

received to the record, the Department 

believes it may lack the authority to 

change this regulation to not count 

against the FMLA entitlement holidays 

that fall within weeks-long blocks of 

FMLA leave. The statute grants 

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employees ‘‘12 workweeks of leave’’

which the Department has interpreted to 

mean 12 weeks of the employee’s 

normal work schedule. See 60 FR at 

2203. (‘‘The statute uses the ‘workweek’

as the basis for the leave entitlement, 

and an employee’s normal ‘workweek’

prior to the start of the FMLA leave is 

the controlling factor for determining 

how much leave an employee uses 

when switching to a reduced leave 

schedule.’’) Holidays regularly occur 

during normal workweeks. Discounting 

the holidays that regularly fall within 

those weekly blocks of leave could well 

impermissibly extend an employee’s 

leave period beyond the statutory 12 

normal workweeks of leave that the Act 

permits. Moreover, the current rule is 

clear and apparently working well. See, 

e.g., Mellen v. Trustees of Boston 

University, 504 F.3d 21, 25 (1st Cir. 

2007) (‘‘[The Department’s regulations 

governing] [w]hether holidays are to be 

counted against intermittent leave taken 

in an interval of a week or more * * * 

fit together naturally.’’). 

However, consistent with the 

discussion regarding § 825.205 below, 

when an employee is taking leave in 

increments of less than one week, the 

pertinent question for both overtime and 

holidays is whether the employee is 

required to be at work. If an employee 

is not required to be at work because of 

a holiday on the day he or she requested 

leave, then no leave would be charged 

to the employee’s FMLA entitlement. 

Thus, the Department proposes 

language in § 825.200(f) to clarify that, 

if an employee needs less than a full 

week of FMLA leave, and a holiday falls 

within the partial week of leave, the 

hours that the employee does not work 

on the holiday cannot be counted 

against the employee’s FMLA leave 

entitlement if the employee would not 

otherwise have been required to report 

for work on that day. If an employee 

needs a full week of leave in a week 

with a holiday, however, the hours the 

employee does not work on the holiday 

will count against the employee’s FMLA 

entitlement. Accordingly, for an 

employee with a Monday through 

Friday work week schedule, in a week 

with a Friday holiday on which the 

employee would not normally be 

required to report, if the employee 

needs FMLA leave only for Wednesday 

through Friday, the employee would use 

only 2/5 of a week of FMLA leave 

because the employee is not required to 

report for work on the holiday. 

However, if the same employee needed 

FMLA leave for Monday through Friday 

of that week, the employee would use 

a full week of FMLA leave despite not 

being required to report to work on the 

Friday holiday. 

Section 825.201 (Leave To Care for a 

Parent) 

Current § 825.201 on leave for the 

birth or placement for adoption or foster 

care of a child has been incorporated 

into proposed §§ 825.120 and 825.121 

discussed above. The current § 825.202 

addresses how much leave a husband 

and wife may take if they are employed 

by the same employer, in situations 

where an employee wants to be with a 

healthy child following a birth or 

placement for adoption or foster care, or 

to care for a parent with a serious health 

condition. The portions of current 

§ 825.202 pertaining to leave for birth or 

placement of a child have been moved 

to proposed §§ 825.120 and 825.121, 

respectively. The remainder of the 

section has been renumbered as 

§ 825.201. Consistent with the current 

regulatory provisions, proposed 

§ 825.201 now highlights when leave 

can be taken to care for a parent, as well 

as the statutory limitations on taking 

such leave when a husband and wife 

work for the same employer. 

Section 825.202 (Intermittent Leave or 

Reduced Leave Schedule) 

Current § 825.203 explains that FMLA 

leave can be taken in blocks or on an 

intermittent or reduced leave schedule 

basis. Current paragraph (a) of this 

section explains that FMLA leave can be 

taken intermittently or on a reduced 

leave schedule due to a qualifying 

reason, and defines what constitutes 

intermittent and reduced schedule 

leave. Current paragraph (b) explains 

that leave taken after the birth or 

placement for adoption or foster care of 

a healthy child may only be used 

intermittently or on a reduced leave 

schedule with the employer’s 

agreement. Current paragraph (c) 

explains that leave may be taken on an 

intermittent or reduced leave schedule 

when medically necessary for planned 

and/or unanticipated medical treatment 

of a related serious health condition or 

for recovery therefrom, and to provide 

care or psychological comfort to an 

immediate family member with a 

serious health condition. Current 

paragraph (d) explains what limitations 

exist with regard to tracking increments 

of intermittent leave and states that 

employers 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. 

This section has been renumbered as 

proposed § 825.202 for purposes of 

organization. Current paragraph (a) from 

§ 825.203 is proposed to be titled 

‘‘[d]efinition,’’ but no other changes are 

proposed. 

Language from current paragraph (b) 

of § 825.203 governing the use of 

intermittent or reduced schedule leave 

after the birth, adoption, or foster care 

placement of a child has been moved to 

proposed paragraph (c), titled ‘‘[b]irth or 

placement,’’ in proposed § 825.202, 

which also cross-references the birth 

and adoption/foster care placement 

sections in proposed §§ 825.120 and 

825.121. 

Proposed paragraph (b) now defines 

‘‘medical necessity’’ and is so titled. It 

combines existing language from current 

§ 825.117 and illustrations from current 

§ 825.203(c). A cross-reference to 

proposed § 825.306 also is proposed in 

paragraph (b), which explains what 

constitutes sufficient information on the 

medical certification form. 

Current paragraph (d), which explains 

how to count increments of leave taken, 

has been moved to proposed § 825.205, 

to be explained below. 

Section 825.203 (Scheduling of 

Intermittent or Reduced Schedule 

Leave) 

Current § 825.117 discusses an 

employee’s statutory obligation to 

schedule foreseeable intermittent or 

reduced schedule leave for planned 

medical treatment so as to not unduly 

disrupt an employer’s operations. See 

29 U.S.C. 2612(e)(2). The Department 

proposes to move this discussion to 

proposed § 825.203 for organizational 

purposes. The statute does not limit this 

obligation to intermittent or reduced 

schedule leave, but rather applies it to 

all foreseeable leave for planned 

medical treatment. Proposed 

§ 825.302(e) (addressing employee 

notice requirements for foreseeable 

leave) sets forth the requirement as to 

any foreseeable leave for planned 

medical treatment. 

Proposed § 825.203 clarifies that an 

employee who takes intermittent leave 

when medically necessary has a 

statutory obligation to make a 

‘‘reasonable effort’’ as opposed to an 

‘‘attempt’’ to schedule leave so as not to 

disrupt unduly the employer’s 

operations. 

The preamble accompanying current 

§ 825.203 also discussed whether 

overtime hours not worked may be 

counted against an employee’s FMLA 

entitlement. See 60 FR at 2202. This 

issue is discussed in the preamble 

below concerning proposed changes to 

§ 825.205, which addresses how to 

determine the amount of leave used. 

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Section 825.204 (Transfer of an 

Employee to an Alternative Position 

During Intermittent Leave or Reduced 

Schedule Leave) 

Current § 825.204 explains when an 

employer may transfer an employee to 

an alternative position in order to 

accommodate intermittent leave or a 

reduced leave schedule. The 

Department proposes no substantive 

changes to this section, but proposes to 

add subheadings for clarity. 

Specifically, proposed paragraph (a) is 

titled ‘‘transfer or reassignment,’’

proposed paragraph (b) is titled 

‘‘compliance,’’ proposed paragraph (c) is 

titled ‘‘equivalent pay and benefits,’’

proposed paragraph (d) is titled 

‘‘employer limitations,’’ and proposed 

paragraph (e) is titled ‘‘reinstatement of 

employee.’’ Other than editorial 

changes, the Department proposes no 

other changes to this section. The 

Department asked no questions about 

transfer in its RFI but received a number 

of comments criticizing the current 

regulations particularly as regards 

employees who have a recurring need 

for unscheduled intermittent leave. The 

full range of comments is discussed in 

Chapter VIII of the Report on the RFI 

comments (see 72 FR at 35608). Some 

commenters saw no basis to 

differentiate between foreseeable and 

unforeseeable need for leave in the 

context of this provision. ‘‘We do not 

see any basis for distinguishing between 

foreseeable vs. unforeseeable leaves for 

purposes of such temporary transfers.’’

See comments by United Parcel Service, 

Inc. Similarly, The Southern Company 

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 Edison Electric Institute 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.’’ The 

Department requests further comments 

on whether this regulatory provision 

should be changed and if so how. 

Section 825.205 (Increments of Leave for 

Intermittent or Reduced Schedule 

Leave) 

Current § 825.205 explains how to 

determine the amount of leave used 

when an employee takes intermittent or 

reduced schedule leave. Current 

paragraph (a) makes clear that ‘‘only the 

amount of leave actually taken may be 

counted toward the 12 weeks of leave’’

to which an employee is entitled. 

Current paragraph (b) explains how to 

calculate the use of intermittent or 

reduced schedule leave when an 

employee works part-time or variable 

hours. Current paragraph (c) explains 

how to calculate leave when an 

employee’s permanent schedule 

changes and current paragraph (d) 

explains how to calculate leave when an 

employee’s schedule varies from week 

to week. 

The Department proposes to add 

language from current § 825.203(d), 

which explains how to count 

increments of intermittent FMLA leave, 

to paragraph (a) of this section, titled 

‘‘Minimum increment.’’ Current 

paragraphs (b) through (d) of § 825.205 

have been renumbered as 

§ 825.205(b)(1), (2), and (3) for purposes 

of clarity, but no changes have been 

made to the text of those sections. 

Paragraph (b) is proposed to be titled 

‘‘[c]alculation of leave.’’

The Department received comments 

expressing concerns about the size of 

increments of intermittent leave that 

may be taken. No issue received more 

substantive commentary to the RFI than 

employee use of unscheduled 

intermittent leave. Employers identified 

a number of problems with current 

§ 825.203(d), which permits FMLA 

leave to be taken in increments as small 

as the employer’s payroll system will 

capture. These difficulties include basic 

administrative problems. Several 

commenters, including a supervisor at 

International Auto Processing, noted 

that their payroll systems capture time 

down to one minute, ‘‘Since our clocks 

track time to the minute, I find myself 

spending an unusual amount of time 

determining how many hours and 

minutes the employee has used by using 

his weekly time sheet. * * * This is a 

nightmare and I sometimes feel like the 

only thing I accomplish during the day 

is tracking intermittent leave.’’ Second, 

employers also stated that the current 

rule does not allow them to adequately 

staff their businesses, as it is very 

difficult to find replacement employees 

to cover absences that are less than one 

half-day. The Detroit Medical Center 

commented that, ‘‘Scheduling of 

sufficient staff is regularly 

compromised, negatively affecting the 

quality of service or, in hospital settings, 

actual patient care because of 

unscheduled intermittent leave.’’ Third, 

as documented in the Department’s 

2007 Report on the RFI comments, 

‘‘intermittent FMLA leave can have 

significant impacts on time-sensitive 

business models. In many situations, the 

absence of just a few employees can 

have a significant impact.’’ 72 FR at 

35632; see generally 72 FR 35632–35638 

(discussing impacts of unscheduled 

intermittent leave on certain timesensitive industries). For example, the 

City of New York stated that when its 

911 operators do not show up for work 

due to a chronic FMLA condition, the 

remaining employees must work longer 

to maintain appropriate staffing and 

response levels: ‘‘The number of 

overtime hours being worked leads to 

overtired people making critical life and 

death decisions in an emergency driven 

environment.’’ As a result of all these 

factors, many employers suggested the 

Department allow employers to require 

that intermittent leave be taken in 

greater increments (e.g., two or four 

hour blocks or one day or one week 

blocks). 

Conversely, a number of commenters 

defended the current rule on minimum 

increments of leave. The Legal Aid 

Society’s Employment Law Center asked 

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.’’ The 

National Partnership for Women & 

Families noted its strong support for the 

current regulations and specifically 

urged the Department to resist making 

any changes in the minimum increment 

of leave that an employee could take: 

‘‘Intermittent leave was designed to help 

employers by ensuring that workers are 

not absent any longer than necessary. 

While some employers now argue for 

half-day increments of intermittent 

leave, enforcing a four-hour leave 

requirement would mean forcing 

employees to miss more work than 

necessary, which is contrary to the 

statute and harmful to both employees 

and employers.’’ The organization 9to5, 

National Association of Working 

Women also stated it ‘‘opposes any 

regulatory change that would impose 

additional obstacles or requirements on 

workers seeking to utilize intermittent 

FMLA leave. Currently, workers may 

take just the time needed for treatments, 

minimizing their own loss of pay and 

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the strain on employers and coworkers.’’

The Department understands the 

burdens imposed on employers by 

employees using unscheduled 

intermittent leave as demonstrated by 

the comments received in response to 

the RFI. At the same time, the 

Department is aware of the importance 

of such leave to employees with serious 

health conditions. The Department is 

not proposing to increase the minimum 

increment of intermittent leave at this 

time. 

The Department also seeks comment 

as to whether, in situations in which 

physical impossibility prevents an 

employee using intermittent leave or 

working a reduced leave schedule from 

commencing work mid-way through a 

shift, an exception should be made to 

allow the entire shift to be designated as 

FMLA leave and counted against the 

employee’s FMLA entitlement. For 

example, if a railroad conductor is 

required to conduct a train from one 

point to another, the employee cannot 

begin or stop work in the middle of the 

trip. Similarly, an employee who works 

in a lab sealed at the start of the day 

cannot enter the lab later or the work 

performed would be lost. The 

Department has addressed this scenario 

in prior guidance. See Wage and Hour 

Opinion Letter FMLA–42 (Aug. 23, 

1994). In that 1994 Opinion Letter, the 

Department stated that when a flight 

attendant needed only three hours of 

intermittent leave to care for her sick 

mother every Friday, preventing her 

from working a Friday flight assignment 

during a two month period, only the 

three hours of leave needed each week 

could be charged to FMLA, and the 

remainder of the time may be charged 

to some other form of paid or unpaid 

leave. Upon further review, the 

Department questions whether such an 

interpretation is appropriate. While the 

Department’s interpretation allows 

employees to preserve their FMLA 

entitlement, it may expose them to 

disciplinary action based on the 

additional hours of unprotected leave 

that they must take. The Department 

seeks comment on whether it is more 

appropriate to extend FMLA protection 

to the entire period of leave taken from 

the employee’s assigned schedule in 

this situation. 

A number of commenters to the 

record addressed this phenomenon. 

Southwest Airlines stated, ‘‘When 

* * * employees are absent, flights do 

not take off without another employee 

taking their place.’’ Therefore, even a 

few minutes of FMLA leave can result 

in the employee missing an entire flight. 

Similarly, the Air Transport Association 

of America, Inc. and the Airline 

Industrial Relations Conference 

commented, 

In this industry, a six-minute absence can 

result in a flight attendant avoiding a threeday trip to which she or he was assigned. 

Most airlines ‘‘bank’’ flights or schedule 

multiple flights to arrive and depart in a 

concentrated time frame, followed by a 

relative lull in activity. An employee could 

use intermittent FMLA leave to miss the 

heavy flight bank, causing the carrier to 

either operate short-handed or to call in a 

replacement worker who likely must be paid 

a shift premium, then come in to work the 

rest of the shift during which no flights may 

arrive or depart, leaving the carrier now overstaffed. 

The Regional Transportation District 

in Denver, Colorado commented that 

‘‘due to the particular needs of the 

industry, [there is] difficulty scheduling 

intermittent leave for bus and light rail 

operators, particularly if the operator 

must be relieved in the middle of the 

run. [We] would like clear guidance on 

the limitations it can place on an 

operator to avoid scheduling 

intermittent leave during a run.’’ This 

situation is also prevalent in the rail 

industry. The Association of American 

Railroads commented, 

Railroads typically establish ‘‘pools’’ (and 

‘‘extra boards’’) comprised of train service 

employees who report to duty when called 

by the employer, based on train operations. 

When called in, the worker leaves on the 

train and must be gone for the entire trip; 

given the nature of the work, the worker 

cannot work a ‘‘reduced schedule leave’’ or 

intermittently for less than the entire trip. If 

the employee cannot work the entire trip, he 

or she must miss the entire trip no matter 

how much FMLA leave the worker needs. 

Instead of proposing specific 

language, the Department seeks 

comment from the public on this issue 

and what if any language should be 

included in the final rule to address 

these situations within the statutory 

requirements. 

The Department also wishes to clarify 

the application of FMLA leave to 

overtime hours. An employee may be 

limited to working eight hours per day 

or 40 hours per week due to a serious 

health condition and, under FMLA, has 

the right not to work overtime hours 

without being subject to any discipline. 

It is a reduced leave schedule. 

Employers continue to have questions, 

however, as to whether and how the 

overtime hours not worked due to the 

serious health condition may be 

counted against the employee’s FMLA 

entitlement. The preamble 

accompanying current § 825.203 stated 

that whether overtime hours not worked 

can be counted against the employee’s 

FMLA entitlement is determined by 

whether the employee would be 

required to use some form of leave to 

cover those hours in a non-FMLA 

situation. (60 FR at 2202) The preamble 

also distinguished between mandatory 

overtime, voluntary overtime, and 

overtime on an ‘‘as needed’’ basis. The 

Department’s enforcement experience 

and responses to the RFI lead us to 

believe that the distinction between 

these three types of overtime, and the 

focus on whether leave would normally 

need to be used to cover the hours not 

worked, has caused confusion. See 

Wage and Hour Opinion Letter FMLA–

107 (July 19, 1999) (‘‘If overtime hours 

are on an ‘as needed’ basis and are not 

part of the employee’s usual or normal 

workweek, or is voluntary, such hours 

would neither be counted to calculate 

the amount of the employee’s FMLA 

leave entitlement nor charged to the 

employee’s FMLA leave entitlement.’’) 

(emphasis in original). The confusion 

has been compounded by language in 

the preamble discussing § 825.205 of the 

current rule, which states ‘‘[a]n 

employee’s FMLA leave entitlement 

may only be reduced for time which the 

employee would otherwise be required 

to report for duty, but for the taking of 

the leave.’’ (60 FR at 2203) 

The Department recognizes that 

overtime by its nature is generally 

assigned on an as needed basis, and the 

fact that it is assigned as needed has no 

bearing on whether the employee has 

volunteered to work or is being required 

to work the additional hours. The 

Department believes the correct focus 

should be not on whether the employee 

would normally be required to use leave 

to cover the overtime hours, but on 

whether the employee would otherwise 

be required to report for duty but for the 

taking of FMLA leave. If the employee 

would be required to work the overtime 

hours were it not for being entitled to 

FMLA leave, then the hours the 

employee would have been required to 

(but did not) work may be counted 

against the employee’s FMLA 

entitlement. Where, in such a case, the 

employee works a part-time or reduced 

leave schedule, the employee’s leave 

usage in any given week is 

proportionate to the employee’s 

scheduled hours in the week in which 

the leave is used. For example, if an 

employee has a certified serious health 

condition limiting the employee’s work 

hours to 40 per week and that employee 

is scheduled for 48 hours in a week, the 

employee would take 8 hours of FMLA 

protected leave that week. This 

translates into 8/48ths or 1/6th of a 

week of FMLA leave. For ease of 

tracking, an employer may convert these 

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fractions to their hourly equivalent so 

long as the conversion equitably reflects 

the employee’s total normally scheduled 

hours. 

Where the employee’s schedule so 

varies from week to week such that no 

‘‘normal’’ schedule or pattern can be 

discerned, a weekly average of the hours 

worked for the 12 weeks prior to the 

start of the FMLA leave is used to 

calculate the employee’s normal 

workweek as in proposed 

§ 825.205(b)(3) (current § 825.205(d)). In 

all instances, the employer must select 

employees for mandatory overtime in a 

manner that does not discriminate 

against workers who need to use FMLA 

leave (see § 825.220). The Department is 

not proposing any regulatory changes 

related to the overtime issue, which is 

not addressed in the text of the current 

regulations and is discussed only in the 

1995 preamble to the current rule (see 

60 FR at 2202). 

Section 825.207 (Substitution of Paid 

Leave) 

Current § 825.207 addresses the 

interaction between unpaid FMLA leave 

and employer provided paid leave. 

Current paragraph (a) repeats the 

statutory language that paid leave may 

be substituted for unpaid FMLA leave. 

Current paragraph (b) addresses 

substitution of accrued paid vacation, 

personal, or family leave for unpaid 

FMLA family leave for the birth or 

placement of a child for adoption or 

foster care or to care for a spouse, child 

or parent with a serious health 

condition. Current paragraph (c) 

addresses when accrued paid vacation, 

personal, or medical/sick leave can run 

concurrently with the employee’s 

unpaid FMLA leave for the employee’s 

own serious health condition or when 

the employee is needed to care for a 

spouse, child or parent with a serious 

health condition. Current paragraph (d) 

addresses the interaction between a 

disability plan and unpaid FMLA leave, 

as well as the interaction of unpaid 

FMLA leave with a workers’

compensation absence. Current 

paragraph (e) addresses the use of paid 

vacation or personal leave when taking 

FMLA leave. Current paragraph (f) 

confirms that if paid leave is not 

substituted at the option of the 

employer or the employee, the 

employee remains entitled to all 

accrued paid leave. Current paragraph 

(g) explains that paid leave used for 

purposes not covered by the FMLA 

cannot count against the employee’s 

FMLA entitlement. Current paragraph 

(h) states that an employer cannot apply 

the FMLA requirements if paid leave is 

substituted and the employer’s paid 

leave program applies less stringent 

procedural standards for taking leave 

than the FMLA. Current paragraph (i) 

addresses the interaction between the 

use of compensatory time off in the 

public sector and the use of FMLA 

leave. 

The Department’s enforcement 

experience and responses to the RFI 

lead us to believe that current § 825.207 

may be confusing to employees and 

employers. For example, the differing 

treatment of ‘‘medical leave,’’ ‘‘family 

leave,’’ ‘‘sick leave,’’ and ‘‘vacation 

leave’’ makes it difficult both for 

employers to administer these 

provisions and for employees to know 

what their rights and obligations are in 

substituting paid leave for unpaid 

FMLA leave. Additionally, both 

employees and employers have 

expressed confusion as to the 

application of the employer’s normal 

leave rules when paid leave is 

substituted for unpaid FMLA leave. 

In response to the RFI, many 

employees and employee advocacy 

groups commented that the ability to 

substitute paid leave for any portion of 

an otherwise unpaid FMLA leave in 

many cases was essential to the 

employee’s ability to take leave at all. 

Several employers and employer 

groups, however, commented that the 

substitution provisions of the 

regulations require that employees 

seeking to use accrued paid leave 

concurrently with FMLA leave be 

treated more favorably than those who 

use paid leave for other reasons. Still 

other employers stated that the various 

rules for substituting different types of 

paid leave have added to the costs of 

administering FMLA leave and 

discouraged the employers from 

adopting or retaining leave policies that 

are more generous than required by the 

FMLA. 

Section 102(d)(2) of the FMLA 

governs the substitution of paid leave 

for unpaid FMLA leave. 29 U.S.C. 

2612(d)(2). Paragraph (A) of that section 

of the statute addresses substitution of 

‘‘accrued paid vacation leave, personal 

leave, or family leave’’ for unpaid FMLA 

leave for the birth or placement of a 

child, or to care for a covered family 

member. Paragraph (B) of that section 

addresses substitution of ‘‘accrued paid 

vacation leave, personal leave, or 

medical or sick leave’’ for unpaid FMLA 

leave to care for a covered family 

member or for the employee’s own 

serious health condition. Language in 

paragraph (B) clarifies that the FMLA 

does not require employers to provide 

paid sick or medical leave in any 

situation in which they would not 

normally do so. 

In the current regulations, the 

Department interpreted the clarifying 

clause regarding paid sick and medical 

leave in section 102(d)(2)(B) of the Act 

as indicating congressional intent to 

allow employers to enforce their normal 

rules regarding the use of paid medical 

and sick leave when such leave was 

substituted for unpaid FMLA leave. The 

Department further interpreted the lack 

of a similar clarifying clause in 

paragraph (A) of that section of the 

statute to indicate that employers were 

not permitted to enforce normal rules 

regarding the use of paid vacation leave 

or personal leave when such leave was 

substituted for unpaid FMLA leave. See 

preamble to current FMLA rule, 60 FR 

at 2205 (‘‘There are no limitations, 

however, on the employee’s right to 

elect to substitute accrued paid vacation 

or personal leave for qualifying FMLA 

leave, and the employer may not limit 

the timing during the year in which 

paid vacation may be substituted for 

FMLA-qualifying absences or impose 

other limitations.’’). 

The Department’s interpretation of the 

substitution of paid leave provision has 

evolved over time, as has been reflected 

in the Department’s opinion letters on 

the subject. For example, while the 

preamble to the current regulations 

specifically stated that employers could 

not restrict the time during the year in 

which an employee could substitute 

paid vacation leave for unpaid FMLA 

leave, the Department has clarified in 

Opinion Letter FMLA–75 that where 

vacation leave was accrued pursuant to 

a generally applied restriction on when 

it could be used, an employee did not 

have the right to substitute vacation 

leave for unpaid FMLA leave at any 

other time. Wage and Hour Opinion 

Letter FMLA–75 (Nov. 14, 1995) 

(‘‘[W]here an employee may only use 

leave under the employer’s plan during 

a specified period when the plant is 

shut down, the employee has not fully 

vested in the right to substitute that 

leave for purposes of FMLA.’’). In two 

other opinion letters on the substitution 

of paid vacation leave, the Department 

has recognized that both an employee’s 

right to use paid leave and an 

employer’s right to require substitution 

are subject to the policies pursuant to 

which the leave was accrued. See Wage 

and Hour Opinion Letter FMLA–81 

(June 18, 1996) (‘‘[T]he Department 

interprets these provisions to mean that 

the employee has both earned the 

[vacation] leave and is able to use that 

leave during the FMLA leave period.’’); 

Wage and Hour Opinion Letter FMLA–

61 (May 12, 1995) (‘‘The Department 

interprets these provisions to mean that 

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the employee has both earned the leave 

and is able to use that leave during the 

FMLA period. * * * [I]n the particular 

situation that you describe, the 

employer could not require the 

employee to substitute [vacation] leave 

that is not yet available to the employee 

to use under the terms of the employer’s 

leave plan.’’). 

On further consideration, the 

Department now believes that the better 

interpretation of paragraph (B) of 

section 102(d)(2) of the Act is that it 

simply clarifies the limits on the 

employer’s obligation to allow the 

substitution of paid sick or medical 

leave. For example, it clarifies that an 

employer is not obligated to allow an 

employee to substitute paid sick leave 

for unpaid FMLA leave when the 

employee is caring for a child with a 

serious health condition if the 

employer’s normal sick leave rules 

allow such paid leave to be used only 

for the employee’s own illness. 

However, as the language in both 

sections of the statute makes clear, in all 

cases the substitution of paid leave 

pursuant to section 102(d)(2) of the Act 

is limited to the substitution of accrued 

paid leave. See FMLA’s legislative 

history: ‘‘Section 102(d) assures that an 

employee is entitled to the benefits of 

applicable paid leave, plus any 

remaining leave time made available by 

the act on an unpaid basis.’’ H.R. Rep. 

No. 103–8, Pt. 1, at 38 (1993); see also 

S. Rep. No. 103–3, at 27–28 (1993). 

Additionally, as several commenters 

to the RFI noted, by prohibiting 

employers from applying their normal 

leave policies to employees substituting 

paid vacation and personal leave for 

unpaid FMLA leave, the current 

regulations may have provided an 

incentive to employers to scale back on 

their provision of vacation and personal 

leave because they are unable to control 

its usage. Moreover, as other 

commenters pointed out, by allowing 

employees to substitute such paid leave 

for unpaid FMLA leave without meeting 

their employer’s normal leave rules, the 

regulations have placed employees 

using FMLA leave in a more favored 

position regarding the use of employer 

provided paid leave than their 

coworkers taking vacation or personal 

leave for non-FMLA reasons. 

The Department agrees that an 

unintended consequence of the current 

regulations on substitution has been to 

create tension with the plain language of 

the FMLA, which states that nothing in 

the Act or any other amendments made 

by it shall be construed to discourage 

employers from adopting or retaining 

leave policies more generous than any 

policies that comply with the 

requirements under the Act or any 

amendment made by it. See 29 U.S.C. 

2653. Additionally, while the FMLA 

prohibits discrimination against FMLA 

leave users, there is nothing in the Act 

that requires employers to treat FMLA 

users more favorably than other 

employees with regard to the provision 

of paid leave. Furthermore, while the 

Act’s protections prohibit an employee 

from losing any accrued benefits as a 

result of taking FMLA leave, nothing in 

that section entitles an FMLA leavetaker to any right or benefit other than 

that to which the employee would have 

been entitled had the employee not 

taken the leave. See 29 U.S.C. 2614(a)(2) 

and (3). 

To more consistently apply these 

principles, the Department proposes to 

combine current paragraphs (a), (b), and 

(c) of § 825.207 into one paragraph (a), 

which now clearly states that the terms 

and conditions of an employer’s paid 

leave policies apply and must be 

followed by the employee in order to 

substitute any form of accrued paid 

leave—including, for example, paid 

vacation, personal leave, family leave, 

‘‘paid time off’’ (PTO), or sick leave. 

Additionally, the Department proposes 

to clarify what is meant in § 825.207 by 

the term ‘‘substitution,’’ which normally 

means replacing one thing with another, 

but does not comfortably bear that 

meaning in the context of the FMLA. 

Thus, the Department proposes to add 

language clarifying that for FMLA 

purposes ‘‘substitution’’ means that the 

unpaid FMLA leave and the paid leave 

provided by an employer run 

concurrently. This is standard practice 

under the current regulations and is not 

a change in enforcement policy. 

Just as employees do not have the 

right to use leave which has not yet 

accrued, an employee’s ability to use 

accrued leave is also limited by the 

leave policies pursuant to which the 

‘‘applicable’’ leave is accrued (i.e., 

available for use pursuant to the nondiscriminatory terms and conditions of 

the employer’s policy). Therefore, for 

example, if an employer’s paid vacation 

leave policy prohibits the use of 

vacation leave in less than full day 

increments, employees would have no 

right to use less than a full day of 

vacation leave regardless of whether the 

vacation leave was being substituted for 

unpaid FMLA leave. Similarly, if an 

employer’s paid personal leave policy 

requires two days notice for the use of 

personal leave, an employee seeking to 

substitute personal leave for unpaid 

FMLA leave would need to meet the 

two-day notice requirement prior to 

receiving the paid personal leave. 

Employers, of course, have the right to 

voluntarily waive the application of 

such restrictions on an employee’s use 

of paid leave, but they are not required 

by the FMLA to do so. 

The Department believes the 

proposed language on the substitution 

of paid leave for unpaid FMLA leave 

also is more consistent with the trend 

toward employers providing employees 

with ‘‘paid time off’’ (PTO) policies that 

do not distinguish the right to leave 

based on the reason (vacation versus 

illness) but instead give employees a 

pool of leave to use for whatever reason 

they choose. PTO plans generally allow 

employees to take paid leave for any 

reason as long as the employer’s 

procedures are satisfied. Under the 

current FMLA regulations, such PTO 

policies were treated the same as paid 

vacation or personal leave and 

employers were therefore not allowed to 

apply their normal leave rules to the 

substitution of such leave for unpaid 

FMLA leave. As several commenters to 

the RFI noted, this interpretation 

prohibited an employer who chose to 

use a PTO leave plan from applying its 

existing policies for taking leave when 

the leave was being used for sick or 

family leave purposes. 

In addition to the language proposed 

in this section as described above, the 

Department also believes certain 

safeguards for employees are necessary. 

Therefore, the Department also proposes 

to add language clarifying that, when 

providing notice of eligibility for FMLA 

leave to an employee pursuant to 

proposed § 825.300, an employer must 

make the employee aware of any 

additional requirements for the use of 

paid leave and must inform the 

employee that he/she remains entitled 

to unpaid FMLA leave even if he/she 

chooses not to meet the terms and 

conditions of the employer’s paid leave 

policies (such as using leave only in full 

day increments or completing a specific 

leave request form). The Department 

invites comment as to whether this 

proposal appropriately implements 

Congressional intent regarding 

substitution of paid leave. See 29 U.S.C. 

2612(d)(2). 

Language from current 

§ 825.207(d)(1), explaining that 

employers may apply more stringent 

requirements for receipt of disability 

payments, has been moved to new 

proposed § 825.306(c). The remaining 

language from current § 825.207(d)(1), 

making clear that substitution of paid 

leave does not apply where the 

employee is receiving paid disability 

leave, is retained in the proposed 

section. However, the Department also 

wishes to clarify that while the 

substitution provisions are not 

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applicable when an employee receives 

disability benefits while taking FMLA 

leave, if the employer and employee 

agree to have paid leave also run 

concurrently with FMLA leave to 

supplement disability benefits, such as 

in the case where an employee only 

receives two-thirds of his or her salary 

from the disability plan, such an 

agreement is permitted under FMLA to 

the degree that it is allowable under 

applicable State law. This is in keeping 

with the statutory mandate not to 

discourage more generous leave policies 

voluntarily provided by employers. 

The language from current 

§ 825.207(d)(2), addressing the 

interaction between workers’

compensation, light duty and the 

FMLA, has been moved to proposed 

§ 825.207(e). Additional discussion of 

light duty also can be found in 

§ 825.220(c) of the proposed rule as 

discussed below. Current § 825.207(e), 

which states that no limitations may be 

placed by the employer on substitution 

of paid vacation or personal leave, 

including leave earned or accrued under 

PTO plans, has been deleted in light of 

the discussion of paragraph (a) above. 

Current § 825.207(h), which states that 

when an employer’s procedural 

requirements for taking paid leave are 

less stringent than the requirements of 

the FMLA, employees cannot be 

required to comply with higher FMLA 

standards, has been deleted because it 

does not properly implement section 

103 of the FMLA, which states that 

employers may require sufficient FMLA 

certification in support of any request 

for FMLA leave for either the 

employee’s own serious health 

condition or a covered family member’s 

serious health condition. It also is in 

conflict with section 102(e) of the 

FMLA, which requires employees to 

provide 30 days notice for foreseeable 

leave whenever possible for the birth or 

placement of a child or for planned 

medical treatment. Current § 825.207(f) 

and (g) remain unchanged but have been 

redesignated as paragraphs (b) and (c) of 

this section. 

Finally, the Department proposes to 

revise current § 825.207(i) to allow the 

use of compensatory time accrued by 

public agency employees under the Fair 

Labor Standards Act (FLSA) to run 

concurrently with unpaid FMLA leave 

when leave is taken for an FMLAqualifying reason. Although the 

Department did not receive many 

comments dealing specifically with the 

issue of compensatory time in response 

to the RFI, those received indicate a 

general agreement that the substitution 

of compensatory time for otherwise 

unpaid FMLA would be beneficial both 

to the employee, by minimizing the 

financial impact of unpaid leave, and to 

the employer, by allowing the two 

benefits to run concurrently. 

Furthermore, the Department believes 

the proposed revision is consistent with 

the U.S. Supreme Court’s decision in 

Christensen v. Harris County, 529 U.S. 

576 (2000), in which the Court found 

that public employers always have the 

right to cash out a public sector 

employee’s compensatory time or 

require the employee to use the time. 

Section 825.208 (Reserved) 

Current § 825.208 has been 

renumbered as proposed § 825.301, to 

be discussed below. The section is 

therefore reserved to avoid extensive 

renumbering of other sections. 

Section 825.210 (Employee Payment of 

Group Health Benefit Premiums) 

This section addresses an employee’s 

obligation to pay his or her share of 

group health plan premiums while on 

FMLA leave. The Department received 

few comments regarding this specific 

section in response to the RFI. Some 

commenters stated that it was difficult 

to obtain payment for an employee’s 

share of health benefit premiums during 

the period the employee is on FMLA 

leave. Employer representatives also 

expressed concern about their ability to 

recoup their portion of health insurance 

premiums when an employee decides 

not to return from FMLA leave. Other 

commenters requested that the 

Department clarify an employer’s 

responsibility to maintain health 

insurance coverage when an employee 

on FMLA leave fails to pay his or her 

portion of the premiums. 

The Department is proposing to revise 

paragraph (f) of this section by deleting 

the word ‘‘unpaid.’’ As noted in 

§ 825.207(e), an individual who is 

simultaneously taking FMLA leave and 

receiving payments as a result of a 

workers’ compensation injury is not on 

unpaid leave. No further changes are 

proposed for this section. For further 

discussion of an employer’s 

responsibility to maintain the health 

insurance coverage of an employee on 

FMLA leave, see proposed § 825.212 as 

discussed below. 

Section 825.212 (Employee Failure To 

Make Health Premium Payments) 

Current § 825.212 explains that an 

employer may terminate an employee’s 

health insurance coverage while the 

employee is on FMLA leave if the 

employee fails to pay the employee’s 

share of the premiums, the grace period 

has expired, and the employer provides 

sufficient notification to the employee. 

The Department received a number of 

comments regarding this section. For 

example, the Disability Management 

Employer Coalition requested that the 

Department better explain how 

employers should respond to an 

employee’s failure to pay his or her 

share of health insurance premiums 

while on FMLA leave. In particular, the 

Coalition stated that while many 

employers pay the employee’s share of 

health insurance premiums because of 

concerns regarding continuation of 

coverage, employers have concerns 

about the cost of doing so. Other 

commenters raised similar concerns, 

especially when individuals do not 

return to work after their FMLA leave 

has expired, and requested clarification 

regarding the timing of termination of 

an individual’s coverage for failure to 

make payment. 

The Department proposes to add 

language to current paragraph (c) of this 

section to make clear that if an employer 

allows an employee’s health insurance 

to lapse due to the employee’s failure to 

pay his or her share of the premium as 

set forth in the regulations, the 

employer still has a duty to reinstate the 

employee’s health insurance when the 

employee returns to work and can be 

liable for harm suffered by the employee 

if it fails to do so. Alternatives exist in 

most cases to terminating an employee’s 

health insurance when premium 

payments are not made. For instance, an 

employer could make payroll 

deductions to recoup such payments 

when an employee returns to work 

without violating the FMLA. To the 

extent recovery is allowed, the employer 

may recover the costs through 

deduction from any sums due to the 

employee (e.g., unpaid wages, vacation 

pay, profit sharing, etc.), provided such 

deductions do not otherwise violate 

applicable Federal or State wage 

payment or other laws. See § 825.213 of 

the current and proposed regulations. 

Section 825.213 (Employer Recovery of 

Benefit Costs) 

This section explains what process an 

employer must follow to recoup 

insurance premiums from an employee 

when the employee does not return 

from leave in certain circumstances. A 

few employer representatives responded 

to the Department’s RFI with concerns 

about this process, with some suggesting 

that employees on FMLA leave be 

provided coverage under the 

continuation coverage requirements of 

Title X of the Consolidated Omnibus 

Budget Reconciliation Act of 1986, as 

amended, 29 U.S.C. 1161–1168 

(COBRA). These commenters were 

particularly concerned that the current 

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system requires that employers provide 

health insurance, and pay the majority 

of the premium, for individuals on 

FMLA leave who have no intention of 

returning to work once their leave 

entitlement expires. The Department 

understands these concerns, but cannot 

adopt the suggested change under 

current law. 

The Department proposes to move 

language from existing § 825.310(h), 

which deals with certification 

requirements when an employee fails to 

return to work due to the continuation, 

recurrence, or onset of a serious health 

condition, to this section, as it believes 

it is more appropriately placed here 

with other issues involving repayment 

of health premiums. This language 

states that the cost of the certification an 

employee must obtain to avoid the 

repayment of health insurance 

premiums when the employee does not 

return from leave must be borne by the 

employee, as well as any travel costs. 

Section 825.214 (Employee Right to 

Reinstatement) 

Current § 825.214 addresses an 

employee’s reinstatement rights upon 

returning to work. This section also 

makes clear that even if an employee is 

unable to return to work as a result of 

the serious health condition and would 

not have FMLA reinstatement rights, the 

employee may have rights under the 

ADA. 

In response to the Department’s RFI, 

employers expressed concern about the 

impact on their business operations of 

reinstating an individual to his or her 

same position. Many of these 

commenters were particularly 

concerned about the interplay between 

the use of intermittent leave by an 

employee and that employee’s right to 

reinstatement. These commenters 

argued that, in many cases, such 

individuals should not be entitled to job 

restoration under current § 825.214(b) 

because they are unable to perform an 

essential function of their position, such 

as to work overtime or meet regular and 

reliable attendance requirements. 

Commenters in certain industries, such 

as those where individuals are trained 

to work with particular consumers, and 

smaller employers stated that returning 

an individual to his or her same 

position can be difficult, even when the 

individual takes block leave. These 

employers often have to hire an 

individual to replace the employee 

taking FMLA leave, and are uncertain 

how to manage the employee’s return to 

work and their obligation to provide 

reinstatement. On the other hand, 

numerous employees stated that the 

ability to take FMLA leave, without 

having to worry whether their job was 

secure, was critical to their being able to 

manage their own serious health 

condition or caregiving responsibilities. 

The National Partnership for Women & 

Families stated that the job restoration 

provisions of FMLA ‘‘promote[ ] greater 

workforce continuity and stability by 

helping employees retain their jobs 

when an emergency strikes.’’

The Department believes that this 

regulatory provision meets the intent of 

Congress in this area, by providing 

employees with job protection while 

allowing employers some flexibility to 

return the employee to the same or an 

equivalent position, and that no changes 

are appropriate under current law. 

The Department proposes minor 

clarifications along with organizational 

changes to this section. First, the 

Department proposes to add a heading 

titled ‘‘[g]eneral rule,’’ emphasizing that 

the section sets forth the general rule on 

reinstatement obligations under the 

FMLA. Proposed § 825.214 retains the 

language from current § 825.214(a) 

without change. Language from current 

paragraph (b) on limitations on 

reinstatement has been moved to 

proposed § 825.216(c) and combined 

with language from current § 825.216(d) 

on concurrent workers’ compensation 

absences during FMLA leave, for 

organizational and clarification 

purposes. 

Section 825.215 (Equivalent Position) 

Current § 825.215 defines what 

constitutes an ‘‘equivalent position’’ for 

purposes of reinstatement. Current 

paragraph (a) explains that an 

equivalent position is one ‘‘virtually 

identical’’ to the employee’s former 

position. Current paragraph (b) instructs 

employers to give an employee a 

‘‘reasonable opportunity’’ to fulfill any 

conditions the employee needs to fulfill, 

such as attending a course, if the 

employee is no longer qualified for his 

or her position as a result of an FMLA 

absence. Current paragraph (c) defines 

equivalent pay, including when an 

employee is entitled to pay increases 

and certain types of bonuses when 

taking FMLA leave. Current paragraph 

(d) defines what constitutes ‘‘equivalent 

benefits.’’ Current paragraph (e) defines 

what constitutes ‘‘equivalent terms and 

conditions’’ of employment, and current 

paragraph (f) confirms that the 

definition of ‘‘equivalency’’ does not 

extend to de minimis or intangible, 

unmeasurable aspects of the job. 

The Department received extensive 

feedback regarding the impact of the 

requirements of this regulatory section 

on employer incentive programs, 

especially perfect attendance awards. 

This issue has also been the subject of 

many requests for clarification to the 

Department over the years. Employers, 

and their representatives, almost 

uniformly stated that the current 

regulatory distinction between an 

attendance bonus and a production 

bonus has a ‘‘chilling effect on employer 

incentive plans.’’ These commenters 

argued that the current regulatory 

requirements are illogical and unfair, 

and have caused many companies to 

modify, or eliminate altogether, perfect 

attendance reward programs. Other 

employers stated that they would not 

consider implementing a perfect 

attendance program because, by 

requiring that employers provide 

awards to individuals with less than 

perfect attendance, these commenters 

believe that the Department has placed 

employees taking FMLA leave in a 

better position than those who take no 

leave. Many employees also commented 

on the perceived unfairness of providing 

a ‘‘perfect attendance’’ award to 

individuals who had been absent from 

work for up to 12 weeks of the eligible 

time period. Several employer 

representatives suggested that the 

Department permit employers to 

administer attendance incentives and 

reward perfect attendance without 

regard to the reason for an absence, thus 

allowing employers to treat all 

individuals absent for work in the same 

manner. 

Several employee organizations stated 

that the current regulatory scheme 

appropriately recognizes that employees 

should not be penalized for exercising 

their FMLA rights. These commenters 

believed that permitting employers to 

exclude employees on FMLA leave from 

award programs would discourage 

employees from taking FMLA leave. 

The Department proposes several 

changes to this section. No substantive 

changes have been made to proposed 

paragraph (a), titled ‘‘[e]quivalent 

position,’’ proposed paragraph (b), titled 

‘‘[c]onditions to qualify,’’ or current 

paragraph (c)(1). The Department 

proposes changes to current paragraph 

(c)(2) regarding bonuses to allow an 

employer to disqualify an employee 

from a bonus or award predicated on the 

achievement of a goal where the 

employee fails to achieve that goal as a 

result of an FMLA absence. Of course, 

an employer could not disqualify only 

those individuals on FMLA-qualified 

leave and allow other employees on 

other forms of non-FMLA leave to 

receive such an award without violating 

the FMLA’s non-discrimination 

requirement. 

The Department proposes this change 

because the wording of current 

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§ 825.215(c)(2) on bonuses is confusing 

and because of the unfairness perceived 

by both employees and employers as a 

result of allowing an employee to obtain 

a perfect attendance award when the 

employee has been absent on FMLA 

leave. The confusion stems from 

language in the current section, which 

distinguishes between bonuses for job 

performance, such as those based on 

production goals, versus bonuses based 

on the absence of certain events 

occurring, and includes as examples 

both bonuses for perfect attendance and 

for working safely with no accidents. 

Moreover, the language of the current 

regulation incorrectly groups together 

bonuses for perfect attendance and 

safety as not requiring performance by 

the employee but rather the absence of 

occurrences. This defies the plain 

meaning of attendance. Employers are 

uncertain whether their employee 

incentive plans will be in violation of 

the current regulation. See Wage and 

Hour Opinion Letter FMLA–110 (Sept. 

11, 2000) (Employer inquiry regarding a 

plan the employer believed to be a 

‘‘production incentive’’ plan, which the 

Department found analogous to a perfect 

attendance program). 

Section 825.215(c)(2), containing this 

confusing distinction between a bonus 

for perfect attendance or safety versus 

meeting or exceeding production goals, 

also seems to conflict with the language 

in current § 825.215(d)(5), which states 

that an employee is ‘‘entitled to changes 

in benefits plans, except those which 

may be dependent upon seniority or 

accrual during the leave period, 

immediately upon return from leave or 

to the same extent they would have 

qualified if no leave had been taken. For 

example, if the benefit plan is 

predicated on a pre-established number 

of hours worked each year and the 

employee does not have sufficient hours 

as a result of taking unpaid FMLA leave, 

the benefit is lost.’’ Current 

§ 825.215(d)(5) is more consistent with 

29 U.S.C. 2614(a)(3), which provides 

that nothing in that section shall be 

construed to entitle any restored 

employee to—(A) the accrual of any 

seniority or employment benefits during 

any period of leave; or (B) any right, 

benefit, or position of employment other 

than any right, benefit, or position to 

which the employee would have been 

entitled had the employee not taken the 

leave. 

The Department also is concerned 

that the regulatory language in current 

§ 825.215(c)(2) provides the wrong 

incentive to employers to eliminate 

perfect attendance awards because of 

the inequity perceived by coworkers of 

allowing employees who have taken 

FMLA leave to receive these awards. 

The Department did not intend, nor 

does the Act itself intend, that the 

FMLA regulations result in a reduction 

of benefits to all employees. 

Therefore, the Department proposes to 

eliminate the existing language of 

current § 825.215(c)(2) and replace it 

with the following: 

Equivalent pay includes any bonus or 

payment, whether it is discretionary or nondiscretionary, made to employees consistent 

with the provisions of paragraph (c)(1) of this 

section. However, if a bonus or other 

payment is based on the achievement of a 

specified goal such as hours worked, 

products sold or perfect attendance, and the 

employee has not met the goal due to FMLA 

leave, then the payment may be denied, 

unless otherwise paid to employees on an 

equivalent non-FMLA leave status. For 

example, if an employee who used paid 

vacation leave for a non-FMLA purpose 

would receive the payment, then the 

employee who used vacation leave for an 

FMLA-protected purpose also must receive 

the payment. 

The Department believes this proposed 

language better reflects the requirements 

of the statutory scheme. 

The Department has re-titled 

paragraphs (e) and (f) in the proposed 

rule. The final sentence of the current 

section, which reminds employers that 

putting an employee in a job slated for 

lay-off when the employee’s original 

position would not be eliminated would 

not meet the definition of an equivalent 

position, has been moved to proposed 

§ 825.216(a)(1) where related issues are 

discussed, for organizational and 

clarification purposes. 

Section 825.216 (Limitations on an 

employee’s right to reinstatement) 

Current § 825.216 addresses the 

limitations on an employee’s right to 

reinstatement. Specifically, current 

paragraph (a)(1) addresses what 

happens when an employee is laid off 

or the employee’s shift is eliminated 

while the employee is on FMLA leave. 

Current paragraph (b) addresses what 

happens when an employee taking 

FMLA leave was only hired for a 

specific term or project. Current 

paragraph (c) addresses limitations on 

reinstatement with regard to ‘‘key 

employees.’’ Current paragraph (d) 

addresses rules governing the 

interaction between FMLA leave and a 

workers’ compensation absence when 

the employee is unable to return to work 

at the end of the 12-week FMLA leave 

period. 

The Department’s RFI generated a 

handful of comments regarding this 

section. Several of the comments 

focused on the difficulty in providing 

job restoration rights to individuals who 

take intermittent leave for chronic 

serious health conditions. For example, 

FNG Human Resources argued that an 

employer should have the right to 

replace employees who ‘‘consistently 

use up to 11+ weeks of FMLA for year 

after year.’’ One commenter requested 

that the Department more clearly define 

the employer’s obligations should a 

layoff occur. A law firm asked that the 

Department clarify the interaction 

between § 825.216(a), which ‘‘suggests 

that a seniority provision in a [collective 

bargaining agreement] would not yield 

to the FMLA’’, and § 825.700, which, 

the commenter indicated, suggests the 

opposite result. 

The Department is not proposing any 

changes to this section to address the 

use of intermittent leave for chronic 

serious health conditions. Likewise, the 

Department believes the current 

regulatory language in this section and 

current § 825.700 adequately explains 

the interaction between the job 

restoration provisions of FMLA and 

collectively-bargained seniority 

provisions. 

Minor changes have been made to this 

section for purposes of greater clarity. 

The only change the Department 

proposes to current paragraph (a)(1) is to 

incorporate the last sentence of 

§ 825.215(f) which, as discussed above, 

states that restoration to a job slated for 

lay-off would not meet the requirements 

of an equivalent position. This is 

proposed for organizational and 

clarification purposes, but no 

substantive change is intended. 

Similarly, the Department proposes to 

re-order current paragraph (b) as 

paragraph (a)(3) for purposes of 

organizational structure and clarity. The 

Department proposes a new paragraph 

(c) to address an employer’s obligations 

when an employee cannot return to 

work after FMLA leave is exhausted 

because the serious health condition 

continues. This section combines 

language from current §§ 825.214(b) and 

825.216(d), because both sections 

address limitations on reinstatement 

when an employee has exhausted his or 

her FMLA leave entitlement and is 

unable to perform the essential 

functions of his or her job, but no 

substantive changes are intended. The 

Department has not made any changes 

to current paragraph (c) except to redesignate it as paragraph (b). Current 

§ 825.312 (g) and (h), which address the 

fraudulent use of FMLA leave and 

outside employment during FMLA 

leave, respectively, and therefore also 

address limitations on reinstatement, 

have been renumbered as proposed 

§ 825.216 (d) and (e) for organizational 

purposes. 

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Sections 825.217 through 825.219 

(Explanation of key employees and their 

rights) 

Taken together, current §§ 825.217, 

825.218 and 825.219 define the term 

‘‘key employee’’; explain the meaning of 

the phrase ‘‘substantial and grievous 

economic injury’’ to the employer’s 

operations; and provide an explanation 

of the rights of a key employee. A 

handful of comments received in 

response to the Department’s RFI 

requested that the Department allow 

employers greater flexibility to 

designate ‘‘key employees’’, particularly 

in the safety industry. A law firm 

representing employers also requested 

that the Department provide guidance 

regarding the responsibility of a 

placement agency to provide job 

restoration rights when the secondary 

employer refuses to reinstate the 

individual because the position was 

‘‘mission-critical.’’

The exemption for highly 

compensated employees is defined by 

statute as applying only to a salaried 

eligible employee who is among the 

highest paid 10 percent of the 

employees employed by the employer 

within 75 miles of the facility at which 

the employee is employed. See 29 

U.S.C. 2614(b)(2). While the Department 

understands that requiring job 

restoration for some lower-paid 

positions in public safety and other 

industries may cause ‘‘substantial and 

grievous economic injury’’ in particular 

situations or may cause hardship to the 

employer, the Department believes that 

any revisions to address such situations 

would require a change in the statute. 

Minor changes to § 825.217(b) have 

been made to update the reference to the 

definition of ‘‘salary basis’’ as now 

contained in 29 CFR 541.602 

(previously codified in 29 CFR 541.118) 

and to add ‘‘computer employees’’ to 

the list of employees who may qualify 

for exemption from the minimum wage 

and overtime requirements of the FLSA 

under those regulations if they meet 

certain duties and salary tests. The 

Department did not receive any 

comments specific to §§ 825.218 and 

825.219 in response to the RFI and is 

not proposing any changes to these 

provisions. 

Section 825.220 (Protection for 

Employees Who Request Leave or 

Otherwise Assert FMLA Rights) 

Current § 825.220 explains what 

actions taken by employers constitute 

an interference with an employee’s 

rights under the FMLA. The Department 

proposes to change two provisions in 

this section, and to clarify two other 

provisions. 

First, the Department proposes new 

language to current paragraph (b) that 

sets forth the remedy for interfering 

with an employee’s rights under the 

FMLA. While this language also has 

been included in proposed § 825.300, 

which deals specifically with employer 

notice obligations, and proposed 

§ 825.301, which addresses what 

triggers an employer’s designation 

obligations, the Department believes it 

is important that the general rule 

governing an employer’s obligations 

under the Act also provide guidance on 

the remedy for such violations. First, 

numerous commenters to the RFI asked 

the Department to strengthen or clarify 

the regulatory provisions implementing 

the Act’s prohibitions on interference 

and discrimination. 29 U.S.C. 2615(a)(1) 

and (2). For example, the University of 

California, Hastings College of Law, 

Center for Worklife Law requested that 

the Department ‘‘clarify that 

interference with an employee’s right to 

take FMLA leave includes not only 

withholding information but also 

deterring employees from exercising 

their rights. * * *’’ The Center for 

Worklife Law asserted that ‘‘employees 

returning from [FMLA] leave have been 

given poorer quality assignments, been 

subjected to heightened scrutiny of their 

work and received undeservedly 

negative evaluations.’’ Similarly, the 

law firm of Kennedy, Reeve & Knoll and 

several individual workers asserted that 

some employers actively discourage the 

taking of FMLA leave, especially 

intermittent leave, or penalize those 

employees who take such leave. 

Second, the Department also received 

comments about the language contained 

in current § 825.220(d) stating that 

where an employee has voluntarily 

accepted a light duty position in lieu of 

taking FMLA leave, the employee’s right 

to restoration to the same or an 

equivalent position is available until 12 

weeks have passed within the 12-month 

period, including all FMLA leave taken 

and the period of ‘‘light duty.’’ The 

Department is aware that at least two 

courts have interpreted this language to 

mean that an employee uses up his or 

her twelve week FMLA leave 

entitlement while performing work in a 

light duty assignment. See Roberts v. 

Owens-Illinois, Inc., 2004 WL 1087355 

(S.D. Ind. 2004); Artis v. Palos 

Community Hospital, 2004 WL 2125414 

(N.D. Ill. 2004). These holdings differ 

from the Department’s interpretation of 

the current regulation, as further 

expressed in a 1995 DOL opinion letter 

which states that an employee who 

voluntarily accepts a light duty position: 

retains rights under FMLA to job restoration 

to the same or an equivalent position held 

prior to the start of the leave for a cumulative 

period of up to 12 workweeks. This 

‘‘cumulative period’’ would be measured by 

the time designated as FMLA leave for the 

workers’ compensation leave of absence and 

the time employed in a light duty 

assignment. The period of time employed in 

a light duty assignment cannot count, 

however, against the 12 weeks of FMLA 

leave. 

Wage and Hour Opinion Letter FMLA–

55 (Mar. 10, 1995). 

Numerous employers, and their 

representatives, urged the Department to 

apply the current regulatory language to 

both voluntary and mandatory light 

duty assignments. The National 

Association of Convenience Stores, the 

U.S. Chamber of Commerce, the Society 

for Human Resource Management, and 

others asked the Department to require 

that employees accept light duty 

assignments, consistent with their 

medical restrictions, in lieu of taking 

FMLA leave. The College and 

University Professional Association for 

Human Resources stated 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’’ while the Society for Human 

Resource Management noted that 

‘‘[e]xperience has shown that employees 

with minor injuries generally recover 

more quickly if they are working, 

gradually returning to their former 

capabilities.’’ As an alternative, many 

employers suggested that the 

Department revise the regulation to 

make clear that light duty work counts 

against an employee’s 12-week FMLA 

entitlement. The American Bakers 

Association, the National Coalition to 

Protect Family Leave, the National 

Business Group on Health, the Retail 

Industry Leaders Association, the 

National Restaurant Association, several 

management-side law firms, and 

individual employers and human 

resource professionals urged the 

Department to rescind Opinion Letter 

FMLA–55 and explicitly provide ‘‘that 

time spent in light duty away from the 

employee’s usual job counts against the 

12 weeks of FMLA entitlement for all 

purposes.’’

Other commenters, including the 

AFL-CIO, the Coalition of Labor Union 

Women, Families USA, the Maine 

Department of Labor, and the University 

of Michigan Center for the Education of 

Women, argued that counting light duty 

work as FMLA leave is not appropriate. 

Some employers, and organizations 

representing human resource 

professionals, also shared this view. For 

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example, MedStar Health, Inc. stated 

that ‘‘[w]hen an employee works, even 

in an alternate light duty capacity, 

he/she is not absent under the meaning 

of the FMLA.’’

Some commenters, such as the 

National Partnership for Women & 

Families, argued that the Department’s 

current position, which counts the time 

spent in a light duty position for 

purposes of job restoration rights but not 

FMLA leave entitlement, struck the 

appropriate balance. Still others, such as 

the University of California, Hastings 

College of Law, Center for Worklife Law, 

expressed concern that counting light 

duty work against an employee’s FMLA 

leave entitlement or reinstatement rights 

could negatively impact pregnant 

women. The National Retail Federation 

suggested that light duty not count 

against FMLA leave, unless the 

individual’s medical restrictions 

required reduced hours, in which case 

any reduction in normal work hours 

would count against the individual’s 

FMLA leave entitlement. 

Upon further review, the Department 

believes that the current regulatory 

language does not serve the Act’s 

purpose to provide job protection when 

FMLA leave is taken. Accordingly, the 

Department proposes deleting the final 

sentence of current § 825.220(d), which 

states that job restoration rights are 

available until 12 weeks have passed 

within the 12-month period including 

all FMLA leave taken and the period of 

light duty. This change will ensure that 

employees retain their right to 

reinstatement for a full 12 weeks of 

leave instead of having the right 

diminished by the amount of time spent 

in a light duty position. The Department 

also is not proposing to require 

employees to accept light duty work in 

lieu of taking FMLA leave. If an 

employee is voluntarily performing a 

light duty assignment and performing 

work, the employee is not on FMLA 

leave and the employee should not be 

deprived of future FMLA-qualifying 

leave when performing such work. By 

deleting this language, the Department 

in no way intends to discourage 

employees and employers from 

engaging in such light duty work 

arrangements. Rather, the Department 

simply wishes to make clear that when 

an employee is performing a light duty 

assignment, that employee’s rights to 

FMLA leave and to job restoration are 

not affected by such light duty 

assignment. The Department invites 

comment on whether the deletion of 

this language may negatively impact an 

employee’s ability to return to his or her 

original position from a voluntary light 

duty position. 

Many RFI commenters asked that the 

Department clarify the language in 

subsection (d) that states ‘‘[e]mployees 

cannot waive, nor may employers 

induce employees to waive, their rights 

under FMLA.’’ Some courts have 

disagreed as to whether this language 

prohibits only the prospective waiver of 

FMLA rights, such as the right to 12 

weeks of leave, or also prohibits the 

retrospective settlement of FMLA claims 

based on past employer conduct, such 

as through a settlement agreement. 

Compare Taylor v. Progress Energy, 493 

F.3d 454 (4th Cir. 2007), petition for 

cert. filed, 75 U.S.L.W. 3226 (Oct. 22, 

2007) (No. 07–539) (Department’s 

regulation prevents employees from 

independently settling past claims for 

FMLA violations with employers 

without the approval of the Department 

or a court) with Faris v. Williams WPC–

I, Inc., 332 F.3d 316 (5th Cir. 2003) 

(plain reading of the Department’s 

regulation is that it prohibits 

prospective waiver of rights only and 

not retroactive settlement of claims). 

A majority of commenters to the RFI, 

including the Connecticut Department 

of Labor, the Ohio Department of 

Administration, the National Coalition 

to Protect Family Leave, the National 

Retail Federation, the Association of 

Corporate Counsel, the United Parcel 

Service, American Electric Power, and 

the University of California, argued that 

§ 825.220(d) should be amended to 

explicitly allow waivers and releases in 

connection with the settlement of FMLA 

claims, that is, claims for past 

violations. Commenters supporting this 

view stated that any interpretation 

preventing the waiver or release of past 

claims unnecessarily encourages 

litigation and interferes with the public 

policy favoring private resolution of 

disputes, is neither practical nor 

efficient (particularly in a reduction-inforce), may discourage companies from 

providing severance or separation 

packages, and is not required by the 

statutory language, which contains no 

indication that Congress intended to 

prevent such waivers. Many of these 

commenters, such as the Connecticut 

Department of Labor, the Indiana 

Chamber of Commerce, the Detroit 

Medical Center, Clark Hill PLC, and the 

Human Resource Management 

Association of Southeastern Wisconsin, 

suggested that the Department adopt 

minimum standards for knowing and 

voluntary waivers, similar to those 

provided for under the Age 

Discrimination in Employment Act of 

1967, 29 U.S.C. 621, 626(f). Other RFI 

commenters, such as the National 

Employment Lawyers Association, 

urged the Department to prohibit both 

prospective and retrospective waivers, 

stating that requiring Departmental or 

court approval of voluntary settlements 

in no way jeopardizes the public policy 

in favor of settlement and protects 

vulnerable workers who might be 

induced to waive their FMLA rights 

rather than forfeit income. 

The Department proposes to clarify 

the language in paragraph (d) in light of 

the Fourth Circuit’s decision in Taylor 

which held that employees cannot 

voluntarily settle their past FMLA 

claims. The Department disagrees with 

that reading of the regulations. As the 

example in the current regulations 

reveals, this provision was intended to 

apply only to the waiver of prospective 

rights. In the interest of clarity, 

however, the Department proposes to 

make explicit in paragraph (d) that 

employees and employers should be 

permitted to voluntarily agree to the 

settlement of past claims without having 

to first obtain the permission or 

approval of the Department or a court. 

The Department does not believe this is 

a change in the law as it has never been 

the Department’s practice, since the 

enactment of the FMLA, to supervise 

such voluntary settlements. 

Section 825.300 (Employer Notice 

Requirements) 

The Act imposes notice obligations on 

both employers and employees. Current 

§§ 825.300 and 825.301 outline 

employers’ responsibilities to notify 

employees of their FMLA rights. Several 

additional notice requirements, such as 

notifying employees of their FMLA 

eligibility and designation of their 

FMLA leave, also appear elsewhere in 

current §§ 825.110 and 825.208. 

Current § 825.300(a) addresses the 

statutory posting requirement (see 29 

U.S.C. 2619(a)). Under current 

§ 825.300(b), an employer that willfully 

violates the posting requirement may be 

assessed a civil money penalty not to 

exceed $100 for each separate offense 

(see 29 U.S.C. 2619(b)). Where an 

employer’s workforce is comprised of a 

significant portion of workers who are 

not literate in English, the employer is 

responsible for providing notice in a 

language in which the employees are 

literate. See § 825.300(c). 

Current § 825.301(b) requires the 

employer to 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: 

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(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 § 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 (§ 825.301(b)(2)). The 

notice must be given within a 

reasonable time after notice of the need 

for leave is given by the employeewithin one or two business days if 

feasible (§ 825.301(c)). The written 

notification to the employee that the 

leave has been designated as FMLA 

leave may be in any form, including a 

notation on the employee’s pay stub 

(§ 825.208(b)(2)). 

The Department noted in its RFI 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. The RFI 

solicited public input on the 

effectiveness of these various regulatory 

notice provisions in promoting 

communications between employees 

and employers and on what more could 

be done to improve the general state of 

awareness of FMLA rights and 

responsibilities by both employees and 

employers. 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. 

Increasing employee and employer 

awareness of FMLA rights and 

responsibilities continues to be a 

challenge based on comments submitted 

to the RFI. International Auto 

Processing, Inc., 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.’’

Some comments addressed the 

sufficiency of the information provided. 

The United Transportation 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.’’ The 

International Association of Machinists 

and Aerospace Workers recommended 

that ‘‘employees should be expressly 

notified of their right to take 

intermittent leave. * * * 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 [and] 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.’’

The AFL–CIO urged the Department 

to consider ‘‘requiring employers to 

provide an individualized notice 

provision to employees on an annual 

basis,’’ and referred to another 

commenter who suggested requiring 

notice to employees at the point of 

hiring and annually thereafter. The 

Communications Workers of America 

reiterated that employees need to 

receive guidelines that ‘‘explain their 

annual leave entitlement and the 

process for making application for 

FMLA leave.’’

Proposed Revisions 

The Department believes that a key 

component of making the FMLA a 

success is effective communication 

between employees and employers. To 

improve the process, the Department 

proposes to collect the notice 

requirements into one comprehensive 

section that better captures the 

appropriate communications that need 

to occur between an employer and 

employee in the FMLA process. 

Specifically, the Department proposes to 

combine components of current 

§§ 825.300, 825.301, 825.208, and 

825.110 into one comprehensive section 

addressing an employer’s notice 

obligations. 

Proposed § 825.300 is divided into 

separate paragraphs that address the 

major topics of ‘‘(a): [g]eneral notice’’; 

‘‘(b): [e]ligibility notice’’; ‘‘(c): 

[d]esignation notice’’; and ‘‘(d): 

[c]onsequences of failing to provide 

notice’’. The ‘‘general notice’’

requirement requires an employer to 

post a notice explaining the Act’s 

provisions and complaint filing 

procedures, and to provide this same 

notice in employee handbooks or by 

distributing a copy annually. The 

‘‘eligibility notice’’ provides notice to 

the employee that he or she is an 

eligible employee under FMLA (as 

defined in § 825.110), has FMLA leave 

available, and has certain rights and 

responsibilities. Within five business 

days of having obtained sufficient 

information to determine whether the 

requested leave is being taken for a 

qualifying reason, the employer must 

provide the employee with a notice 

regarding designation of FMLA leave—

referred to as the ‘‘designation notice.’’

The designation notice informs the 

employee whether the particular leave 

requested will be designated as FMLA 

leave. 

While the current regulations contain 

the ‘‘provisional designation’’ concept, 

the Department believes that this 

process may cause confusion over 

whether leave is protected prior to the 

actual designation. In some cases, the 

leave may not eventually qualify for the 

Act’s protections. Thus, the 

Department’s proposal restructures the 

regulations to recognize that employers 

may not be able to designate leave as 

FMLA covered until the employee 

provides additional information. The 

Department specifically invites 

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comment on whether this proposal will 

effectively communicate the required 

information to employees about their 

FMLA rights while relieving some of the 

administrative burdens for employers 

under the current process. 

General Notice Requirements 

Proposed § 825.300(a) is a ‘‘general 

notice requirement’’ that merges the 

poster/notice requirement contained in 

current § 825.300 with the written 

guidance required in current 

§ 825.301(a). Proposed § 825.300(a)(1) 

maintains the statutory requirement that 

every covered employer post and keep 

posted in conspicuous places on its 

premises a notice providing information 

about the FMLA. Given the growth of 

the Internet since the Department issued 

the 1995 regulations, however, as well 

as the practical realities that more and 

more employees do not physically 

report to a central location, the 

Department proposes that this posting 

requirement may be satisfied through an 

electronic posting of the notice as long 

as it otherwise meets the requirements 

of this section. To provide sufficient 

notice required by the statute (see 29 

U.S.C. 2619), the employer must make 

sure that the information is accessible to 

applicants as well as employees, so 

simply posting such information on an 

intranet that is not accessible to 

applicants will not meet the 

requirements. Electronic posting could 

be accomplished, for example, by 

posting the notice in a conspicuous 

manner on the employer’s Internet webpage inviting applicants to apply if the 

employer accepts applications only 

through the Internet. If the employer 

also accepts applications on-site, 

however, the notice would have to be 

physically posted for applicants to view 

on-site unless the employer had a 

computer kiosk available for applicants 

to view the poster on-line. Similarly, in 

order for electronic-only posting to 

provide sufficient notice to employees, 

all employees must have access to 

company computers that post the 

information in a conspicuous manner. 

For example, the company may make 

computer kiosks available for use in 

employee lunch rooms. The Department 

specifically seeks comment on whether 

this ‘‘posting’’ alternative is considered 

workable and will ensure that 

employees and applicants obtain the 

required FMLA information. 

Poster Civil Money Penalty 

Section 109(b) of the FMLA (29 U.S.C. 

2619(b)) provides that any employer 

who willfully violates the Act’s 

requirement to post the FMLA notice as 

required by section 109(a) may be 

assessed a civil money penalty (CMP) 

not to exceed $100 for each separate 

offense. This CMP amount was set by 

the Congress as part of the original 

FMLA of 1993. The regulations, at 

§ 825.300(b), currently provide for 

assessment of a $100 penalty for willful 

violations of the posting requirement. 

The Department proposes to increase 

the civil money penalty for violation of 

this posting to $110.00 to meet 

requirements of the Debt Collection 

Improvement Act of 1996 (Pub. L. 104–

134, Title III, § 31001(s)(1), Apr. 26, 

1996, 110 Stat. 1321–373). The Debt 

Collection Improvement Act amended 

the Federal Civil Penalties Inflation 

Adjustment Act of 1990 (Public Law 

101–410, Oct. 5, 1990, 104 Stat. 890) to 

require that Federal agencies issue 

regulations to adjust certain CMPs for 

inflation. As amended, the law requires 

each agency to initially adjust for 

inflation all covered CMPs, and to 

periodically make further inflationary 

adjustments thereafter. The adjustment 

prescribed in the amended Act is based 

on a cost-of-living formula according to 

the percentage determined by the 

Department of Labor’s Consumer Price 

Index (CPI). The statute provides for 

rounding the penalty increases. Once 

the percentage change in the CPI is 

calculated, the amount of the 

adjustment is rounded according to a 

table in the Federal Civil Penalties 

Inflation Adjustment Act, which is 

scaled based on the dollar amount of the 

current penalty. For penalties less than 

or equal to $100, the increase is rounded 

to the nearest multiple of $10. The 

statute applies a cap, for the initial 

adjustment only, which limits the 

amount of the first penalty increase to 

10 percent of the current penalty 

amount. Any increase under the Act 

applies prospectively to violations that 

occur after the date the increase takes 

effect in amendments to the regulations. 

The amount by which the current 

CPI–U exceeds the CPI–U for June of 

1993 is more than the statutory cap of 

10 percent. Consequently, due to 

inflation since this CMP amount was 

first established in 1993, the adjustment 

permitted by law is limited to the 

maximum 10 percent initial cap. It is 

proposed, therefore, to amend 

§ 825.300(a) to provide for assessment of 

a penalty of $110 for willful violations 

of the posting requirement. 

Clarification of Covered Employer 

Responsibilities 

For purposes of clarity, the 

Department proposes to separate out 

into a new paragraph the language from 

existing § 825.300(a) that requires a 

covered employer to post the general 

notice to individual employees even if 

no employees are eligible for FMLA 

leave. For example, an employer may 

employ 60 employees located in all 50 

states, and no employee meets the 

eligibility requirement of working at a 

site to which 50 or more employees 

report within 75 miles. See 29 U.S.C. 

2611(2)(B)(ii) and 29 CFR 825.110. In 

such a case, an employer still would 

have to comply with the posting 

requirement. This is a statutory posting 

requirement, see 29 U.S.C. 2611(4) and 

2619(a), although some confusion exists 

on this point since it is not obvious that 

such a notice is required when an 

employer does not have any eligible 

employees. The Department aims to 

minimize such confusion by 

highlighting this requirement in a 

separate section. 

Proposed § 825.300(a)(3) states that 

covered employers with eligible 

employees also must distribute the 

general notice described in proposed 

§ 825.300(a) either by including it in an 

employee handbook or by distributing a 

copy to each employee at least once a 

year, either in paper or electronic form. 

This provision incorporates the existing 

notice distribution requirement found in 

current § 825.301(a)(1), which requires 

an employer to place in an employee 

handbook, if one exists, a notice of 

FMLA rights and responsibilities and 

the employer’s policies on the FMLA. 

Current § 825.301(a)(2) states that if an 

employer does not have a handbook, 

when an employee gives specific notice 

of the need for leave, the employer must 

provide written guidance to an 

employee concerning all the employee’s 

rights and obligations under the FMLA, 

and the DOL Fact Sheet can meet this 

requirement. The information found in 

the DOL Fact Sheet mirrors, in part, 

information contained in the poster. 

To streamline the notice requirement 

currently found in § 825.301(a)(1) and 

the posting requirement, the Department 

proposes that one document containing 

identical information be both posted 

and distributed, thereby satisfying the 

posting and distribution requirement. 

The Department intends that this 

proposed change will more effectively 

convey consistent, relevant information 

to employees. Moreover, the 

Department’s proposed prototype notice 

is revised to provide employees more 

useful information on their FMLA rights 

and responsibilities. 

To further address the concern that 

employees are unaware of their rights as 

explained above, the Department 

proposes that if the proposed notice is 

not contained in an employee 

handbook, it must be distributed 

annually, regardless of specific 

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employee requests for leave. This new 

frequency requirement exceeds that of 

the current regulations, but the 

Department is responding to the 

concern that employees may not be 

aware of their FMLA rights in many 

cases, and the Department believes that 

this requirement will promote increased 

awareness. In addition, the 

communication will be more effective if 

the notice is provided routinely and 

annually rather than only when an 

employee is facing a significant family 

event like the birth or adoption of a 

child or a serious medical emergency 

affecting the employee or a family 

member. 

The Department’s proposal does not 

require that a covered employer with no 

eligible employees distribute the general 

notice, although the employer would 

have to comply with this requirement 

even if it only has one eligible 

employee. The Department specifically 

seeks comments on all aspects of these 

proposed notice provisions. 

Prototype General Notice 

Proposed § 825.300(a)(4) explains that 

the Department has included a 

prototype notice in Appendix C for 

employers to use and that copies will be 

available from Wage and Hour offices 

and from the Department’s Internet 

website. Consistent with current 

§§ 825.300(c) and 825.301(b)(1), 

proposed § 825.300(a)(4) requires that 

an employer provide the poster and 

general notice to employees in a 

language in which they are literate 

when the employer employs a 

significant portion of employees who 

are not literate in English. The 

Department intends to make such 

notices available in alternative 

languages in accordance with the 

requirements of this section on the 

Internet and through local Wage and 

Hour district offices. This section also 

includes language from current 

§ 825.301(e) requiring notice to sensoryimpaired individuals as required under 

applicable Federal and State law. 

Eligibility Notice 

Proposed § 825.300(b) consolidates 

the notice provisions contained in 

existing §§ 825.110(d) and 825.301(b) 

into a paragraph entitled ‘‘eligibility 

notice.’’ Consistent with current 

§ 825.110, the employer continues to be 

responsible under proposed paragraph 

(b)(1) of this section for communicating 

eligibility status. As under the current 

regulations, the employer’s obligation to 

notify the employee of his or her 

eligibility to take FMLA leave (i.e., 

whether the employee has been 

employed for 12 months and has 

worked for 1,250 hours of service in the 

preceding 12 months) is not triggered 

until the employee has provided the 

employer with at least verbal notice 

sufficient to indicate that the employee 

needs FMLA-qualifying leave. See 

§§ 825.302 and 825.303. The proposed 

regulations require that the eligibility 

notice be conveyed within five business 

days after the employee either requests 

leave or the employer acquires 

knowledge that the employee’s leave 

may be for an FMLA-qualifying reason. 

While this proposal is a change from the 

current timeframe of two business days, 

the Department is responding to 

significant comments noting that the 

two-day turnaround time is in practice 

very difficult to meet, and the 

Department does not believe that 

extending this time frame to five 

business days will compromise an 

employee’s FMLA rights. The 

Department specifically seeks comment 

on whether this timeframe will both 

impart sufficient information to 

employees in a timely manner and 

whether it is workable for employers. 

Proposed paragraph (b)(2) of this 

section specifies what information an 

employer must convey when 

communicating with the employee as to 

eligibility status. While not required 

under the current regulations, the 

proposal requires the employer to notify 

the employee whether leave is still 

available in the applicable 12-month 

period. If the employee is not eligible or 

has no FMLA leave available, then, 

pursuant to proposed paragraph (b)(2), 

the notice must indicate the reasons 

why the employee is not eligible or that 

the employee has no FMLA leave 

available. For example, an employer 

might need to indicate that an employee 

has not worked long enough to meet the 

12-month eligibility requirement. 

The Department proposes these new 

notification requirements to address the 

concern that employees are not aware of 

their rights. The Department believes 

that a better understanding on the part 

of both employees and employers as to 

their respective FMLA rights and 

obligations will better ensure that 

employees who qualify for FMLA leave 

obtain such leave. In proposing these 

new notice requirements, the 

Department believes that the additional 

burden will be minimal, since the 

employer is already required to 

calculate such information in any case 

to determine eligibility in order to meet 

the requirements of the statute. 

If the employee is eligible for FMLA 

leave, then proposed paragraph (b)(3) 

also requires, consistent with current 

§ 825.301(b), that the employer inform 

the employee of the employee’s rights 

and responsibilities, such as any 

requirement to provide sufficient 

medical certification, pay premiums for 

continuing benefits, and job restoration 

rights upon expiration of FMLA leave. 

The Department proposes to add 

language to clarify in § 825.300(b)(3)(iii) 

when an employer notifies an eligible 

employee of the right to substitute 

employer-provided paid leave and the 

conditions related to any such 

substitution that the employer also 

inform the employee that he/she may 

take unpaid FMLA leave if the 

employee does not comply with the 

terms and conditions of the employer’s 

paid leave policies (see discussion 

supra at § 825.207). The Department 

also proposes to add language to 

§ 825.300(b)(3)(v) indicating that 

employers should include a statement of 

the employee’s essential job functions 

with the eligibility notice if they will 

require that those functions be 

addressed in a fitness-for-duty 

certification. 

The remainder of proposed 

§ 825.300(b) relies upon existing 

language in current § 825.301 with 

limited modifications. Specifically, 

proposed § 825.300(b)(4) adopts 

language from current § 825.301(b)(2), 

which provides that the eligibility 

notice may include other information on 

an employee’s rights and 

responsibilities such as providing 

periodic reports of the employee’s status 

and intent to return to work. Consistent 

with language from current § 825.301(c), 

proposed § 825.300(b)(6) states that the 

eligibility notice need not be provided 

more frequently than once every six 

months unless the specific information 

in the notice changes. If leave has 

already begun, the notice should be 

mailed to the employee’s address of 

record. Proposed § 825.300(b)(7) states 

that if information changes, the 

employer should provide notice to the 

employee of any information that has 

changed within five business days, a 

change from the current two-day 

requirement. The proposal also contains 

new language stating that the employer 

should include the medical certification 

form, if the employer requires such 

information, along with the eligibility 

notice. 

Consistent with the current 

regulations, proposed § 825.300(b)(8) 

provides that if an employer requires 

medical certification or a fitness-forduty report, written notice of the 

requirement shall be given with respect 

to each employee notice of a need for 

leave, unless the employer 

communicates in writing to employees 

that such information will always be 

required in connection with certain 

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absences and then oral notice must still 

be given. 

Proposed paragraph (b)(9) is 

unchanged from current § 825.301(d) 

and provides that employers will 

responsively answer employees’

questions on their rights and 

responsibilities under FMLA. 

Proposed paragraph (b)(10) provides 

that an optional prototype eligibility 

notice is included in Appendix D. This 

proposed prototype reflects changes in 

the proposed regulation. The 

Department also has attempted to 

simplify the form for easier use and 

adaptability. 

Designation Notice 

Proposed § 825.300(c) outlines the 

proposed requirements of the 

designation notice an employer must 

provide to an employee, currently 

located in § 825.208(b). This proposed 

designation notice requires that an 

employer notify the employee within 

five business days (a change from the 

current requirement of two business 

days) that leave is designated as FMLA 

leave once the employer has sufficient 

information to make such a 

determination. 

The RFI sought comments on whether 

the current two business day time frame 

was adequate for employers to notify 

employees that their request for FMLA 

leave has been approved or denied. The 

majority of comments on this topic 

indicated that the current two-day time 

frame was too restrictive. United Parcel 

Service commented, ‘‘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 

noted similarly, ‘‘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 agreed: ‘‘For most 

employers, this is virtually impossible. 

Although most employers designate 

leave within a reasonable time frame, it 

is usually well outside the two-day 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., comments by Fisher & Phillips 

LLP (fifteen days from receipt of a 

certification form); National Coalition to 

Protect Family Leave (ten business 

days); Association of Corporate Counsel 

(five working days); Courier Corporation 

(five days); United States Postal Service 

(same); Northrop Grumman Newport 

News Shipbuilding and Dry Dock 

Company (same). 

International Auto Processing, Inc., 

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. Hinshaw 

& Culbertson LLP commented similarly 

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.’’

In light of the comments received, the 

proposed rule requires the employer to 

provide the employee notice of the 

designation of FMLA leave within five 

business days of receiving sufficient 

information from the employee to 

designate the leave as FMLA leave. The 

proposed designation notice also 

contains an additional provision that 

expressly requires the employer to 

inform the employee of the number of 

hours, days or weeks, if possible, that 

will be designated as FMLA leave. 

Although current § 825.208(b)(1) 

requires employers to inform employees 

that leave ‘‘is designated and will be 

counted as FMLA leave,’’ it does not 

specifically require employers to 

provide employees with information 

detailing the amount of leave so 

designated. When an employee requests 

a block of foreseeable leave and 

provides appropriate notice to the 

employer, it should be relatively 

straightforward for the employer to 

provide the employee with the amount 

of leave that will be designated as 

FMLA. However, to the extent that 

future leave will be needed by the 

employee for a condition but the exact 

amount of leave is unknown (as is often 

the case with unforeseeable intermittent 

leave for a chronic serious health 

condition), the employer must inform 

the employee every 30 days that leave 

has been designated and protected 

under the FMLA and advise the 

employee as to the amount so 

designated if the employee took leave 

during the 30-day period. Currently, the 

regulations do not specifically address 

designation of unforeseen, intermittent 

leave, and the Department believes that 

it is important for employees to be 

aware when such leave is designated as 

FMLA leave in a timely fashion. 

Further, the proposed section contains a 

new requirement that an employer 

notify the employee if the leave is not 

designated as FMLA leave due to 

insufficient information or a nonqualifying reason. 

As noted above, the Department 

proposes to change the timeframe in 

which an employer must designate 

leave as FMLA leave from two business 

days to five business days. As discussed 

above with respect to the change in 

timeframe for providing the eligibility 

notice, the Department believes this will 

result in more accurate notice given to 

employees. Moreover, this change is 

proposed in concert with new notice 

requirements that would require 

employers to provide employees with 

more substantive information than that 

required under the current regulations. 

The Department does not believe that 

these new information requirements 

should be burdensome for employers 

since the employer will already need to 

determine in any event whether or not 

the leave should be designated and 

counted against the employee’s 12-week 

FMLA leave entitlement. The proposed 

requirement merely requires the 

employer to expressly communicate this 

information to the employee. The 

Department specifically seeks comment 

on whether these proposed revisions 

both adequately protect employee rights 

and are workable for employers. Neither 

the proposed nor current regulations 

mandate a specific format for the 

written notice. The proposed paragraph 

(c)(2), consistent with current 

§ 825.208(b)(2), indicates that this 

information may be communicated on a 

pay stub. 

Proposed § 825.300(c)(3) improves the 

notices employers must provide to 

employees. It explicitly permits an 

employer to provide an employee with 

both the eligibility and designation 

notice at the same time in cases where 

the employer has adequate information 

to designate leave as FMLA leave when 

an employee requests the leave. This is 

an acknowledgement that in some cases 

there will be no question that a leave 

request qualifies as FMLA leave and the 

proposal encourages an employer to 

designate the leave as soon as possible. 

Section 825.300(c)(4) states that a 

prototype designation notice is 

contained in Appendix E. This form is 

a new optional ‘‘designation notice’’

that an employer can use to satisfy its 

obligation to notify an employee that 

leave is being designated as FMLA leave 

because it is being taken for a qualifying 

reason, as required by proposed 

§ 825.300(c)(1). 

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Remedy Provision 

Proposed paragraph (d) has been 

added in light of Ragsdale, and expands 

on current § 825.301(f). Consistent with 

the Department’s discussion of 

proposed § 825.301, the Department 

believes that the U.S. Supreme Court’s 

Ragsdale decision requires a remedy 

provision for a notice violation that is 

tailored to individualized harm. 

Therefore, as noted in the discussion of 

§§ 825.110, 825.301, and 825.220, the 

Department has added a provision 

explaining that failure to comply with 

the notice requirements set forth in this 

section could result in the interference 

with, restraint of, or denial of the use of 

FMLA leave. If the employee is able to 

demonstrate harm as a result of the 

employer’s failure to provide notice of 

eligibility or designation of FMLA leave 

as required, an employer may be liable 

for the harm suffered as a result of the 

violation, such as lost compensation 

and benefits, other monetary losses, and 

appropriate equitable or other relief, 

including employment, reinstatement, 

or promotion. 

Section 825.301 (Employer Designation 

of FMLA Leave) 

The Department proposes to delete 

current § 825.301, which addresses 

employer notices to employees, because 

its requirements have been incorporated 

into proposed § 825.300 as discussed 

above. Current § 825.208 addressing 

designation of FMLA leave has been 

moved to proposed § 825.301. Current 

§ 825.208 explains under what 

circumstances an employer can 

designate leave as FMLA leave. 

Paragraph (a) of that section explains 

that it is the employer’s obligation to 

designate leave as FMLA leave. 

Paragraph (a)(1) of that section explains 

that the employee has an obligation to 

provide the employer with enough 

information to determine if the leave is 

potentially FMLA-qualifying. Paragraph 

(a)(2) explains that the employee need 

not specifically request FMLA leave, 

although if an employee requests paid 

leave for an FMLA reason and the 

employer denies the request, the 

employee must provide the employer 

with sufficient information to make the 

determination that the leave is for an 

FMLA-qualifying reason. Paragraph (a) 

also explains that if the employer does 

not have sufficient information to 

designate paid leave as FMLA-covered, 

the employer has an obligation to 

inquire further in order to ascertain 

whether the paid leave is potentially 

covered by the FMLA. Current 

paragraph (b)(1) of that section states 

that once an employer has enough 

information that leave is taken for an 

FMLA-qualifying reason, the employer 

must designate the leave as FMLA leave. 

Paragraph (b)(2) explains that the 

designation may be oral or in writing 

and must be confirmed in writing no 

later than the following payday. Current 

paragraph (c) of that section provides 

that paid leave must be designated as 

FMLA-covered leave within two 

business days of when the employee 

gives notice of leave, or when the 

employer has sufficient information to 

make such a determination if not 

available until later. It also requires the 

employer to advise the employee if 

substitution of paid leave will be 

required. The section also explains that 

if the employer knows that paid leave is 

for an FMLA reason when the employee 

advises of the need for leave or when 

the leave commences and does not at 

that time designate (and notify the 

employee) that the leave is being 

charged to the employee’s FMLA leave 

entitlement, the leave may not be 

designated as FMLA leave retroactively 

and may only be designated as FMLA 

leave prospectively. In such case, 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, but ‘‘the 

employee is subject to the full 

protections of the Act’’ during that 

period of absence. 

Current paragraph (d) of that section 

explains the rules for designating leave 

after leave has begun. Current paragraph 

(e) explains that leave may not be 

retroactively designated except in 

limited circumstances such as when a 

non-FMLA leave turns into an FMLAqualifying leave or when an employee 

has taken leave for a short duration and 

only notifies the employer when the 

employee returns from leave. 

The proposed revisions maintain the 

basic requirement from current 

§ 825.208 that employers designate 

qualifying leave as FMLA promptly and 

notify employees of that designation. 

See the Department’s 2007 Report on 

the RFI comments, Chapter V, Section D 

(72 FR at 35585). The revisions, 

however, account for the Supreme 

Court’s ruling in Ragsdale prohibiting 

categorical penalties based on an 

employer’s failure to appropriately 

designate FMLA leave. 

The Department also proposes a new 

paragraph (b) in this section that 

specifically addresses employee 

responsibilities. The substance of the 

language contained in current paragraph 

(a) of § 825.208 that addresses such 

responsibilities has been retained and 

moved to this new section, but the 

proposal simplifies the language and 

mirrors changes made to §§ 825.302 and 

825.303. The proposed paragraph crossreferences §§ 825.302 and 825.303 that 

address what constitutes sufficient 

information an employee must 

communicate to an employer when 

needing FMLA leave, as further 

explained below. Proposed § 825.301(b) 

also incorporates the substance of the 

provision in current § 825.208(a)(2) that 

an employee need not invoke the FMLA 

when asserting rights under the Act. As 

a matter of clarification, the word 

‘‘unpaid’’ is deleted, as these employee 

responsibilities apply whether the leave 

is paid or unpaid. The proposed section 

also explains that the consequences for 

an employee’s failure to satisfy these 

responsibilities may include delay as 

well as denial of FMLA leave. 

The substance of current § 825.208(b) 

has been moved to proposed 

§ 825.300(c) that addresses the other 

notice obligations of employers. As 

noted above, current § 825.208(c) 

explains an employer’s designation 

obligations with regard to paid leave 

and the consequences that apply when 

an employer fails to properly and timely 

designate leave. In light of Ragsdale, the 

Department cannot prohibit the 

retroactive designation of FMLA leave 

absent a showing of individual harm. By 

the same token, the Department believes 

that it is important that employers 

timely designate FMLA leave so that 

both employees and employers are 

aware as to what employee rights attach 

when a specific FMLA leave period is 

at issue. Indeed, in the preamble 

accompanying the current regulations, 

the Department explained that this 

section was intended to resolve the 

question of FMLA designation as early 

as possible in the leave request process, 

to eliminate protracted ‘‘after the fact’’

disputes. (60 FR at 2207) The 

Department has received comments, 

however, that in certain cases, the 

prohibition on retroactive designation 

actually may harm the employee. 

The Department has reevaluated the 

original rationale for this rule and still 

believes it is beneficial to both 

employees and employers to know in 

advance, or at least as soon as possible, 

when leave is considered FMLAprotected leave. Therefore, the 

Department proposes to make clear that 

an employer has an obligation to timely 

designate leave (within five business 

days, absent extenuating circumstances) 

as proposed in § 825.301(a). However, in 

light of Ragsdale and the comments the 

Department has received, proposed 

paragraph (d) of this section 

acknowledges that retroactive 

designation may occur, but that if an 

employer fails to timely designate leave 

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as specified in § 825.300 and paragraph 

(a) of this section, and if an employee 

establishes that he or she has suffered 

harm as a result of the employer’s 

actions, a remedy may be available. The 

Department provides examples in 

paragraph (e) to illustrate the type of 

circumstance where an employee may 

or may not be able to show that harm 

has occurred as a result of the 

employer’s actions. In many cases 

where an employee’s own serious health 

condition is involved, the Department 

believes it will be difficult to show harm 

as a result of the employer’s failure to 

timely designate FMLA leave, as the 

employee will frequently be unable to 

delay or forgo the leave. Cf. Downey v. 

Strain,—F.3d—, 2007 WL 4328487 (5th 

Cir. 2007) (finding employee was 

harmed by employer’s failure to 

designate leave as FMLA leave). On the 

other hand, if an employee knows he or 

she would need the FMLA leave later in 

the year for planned medical treatment, 

he or she may choose to have another 

family member provide care for a child 

with a serious health condition instead 

of taking leave at a certain point if the 

employee knew that the time off would 

count against the employee’s FMLA 

entitlement. In addition, this proposal 

can benefit employees who did not 

fulfill their FMLA notice obligations at 

the time of taking leave, by allowing 

employers to retroactively designate 

leave to prevent disciplinary action. 

The last sentence in proposed 

paragraph (d) states that in all cases 

where a leave is FMLA-qualifying, an 

employer and an employee can 

mutually agree that leave be 

retroactively designated as FMLA leave. 

Proposed paragraph (e), titled 

‘‘[r]emedies,’’ mirrors the statutory 

scheme and provides that failure to 

timely designate could constitute an 

interference with, restraint of, or denial 

of, the exercise of an employee’s FMLA 

rights. Specifically, if the employee is 

able to establish prejudice as a result of 

the employer’s failure to designate leave 

properly, an employer may be liable for 

compensation and benefits lost by 

reason of the violation, for other 

monetary losses sustained as a direct 

result of the violation, and for 

appropriate equitable relief, including 

employment, reinstatement, promotion, 

or any other relief tailored to the harm 

suffered. This language mirrors the 

statutory remedies set forth in 29 U.S.C. 

2617, as well as language in the 

Ragsdale decision. 

In light of proposed paragraphs (d) 

and (e) discussed above, current 

paragraphs (d) and (e) of § 825.208 

discussing when leave can be 

retroactively designated under the 

current regulations have been deleted. 

Section 825.302 (Employee Notice 

Requirements for Foreseeable FMLA 

Leave) 

Current § 825.302(a) explains what 

notice an employee must give an 

employer when the need for FMLA 

leave is foreseeable. The requirement, as 

set forth in the statute, 29 U.S.C. 

2612(e), is that an employee must give 

at least 30 days’ notice if the need for 

FMLA leave is foreseeable. If 30 days’

notice is not possible, the employee 

must give notice ‘‘as soon as 

practicable.’’ The current regulations 

define ‘‘as soon as practicable’’ in 

§ 825.302(b) to mean ‘‘as soon as both 

possible and practical, taking into 

account all of the facts and 

circumstances in the individual case.’’ It 

further states that ‘‘ordinarily’’ as soon 

as practicable 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.’’ Current paragraph (c) 

explains the form and content of notice 

an employee must provide when taking 

leave and the obligations of employers 

to obtain follow-up information when 

needed. Current paragraph (d) explains 

that an employer can require an 

employee to comply with its usual and 

customary notice procedures, but that 

an employer cannot disallow or delay 

leave if such procedures are not 

followed if timely notice is given. 

Current paragraph (e) explains that an 

employee has a duty to plan medical 

treatment so as to not unduly disrupt an 

employer’s operations; current 

paragraph (f) explains an employee’s 

notification obligations with regard to 

intermittent leave; and current 

paragraph (g) explains that while an 

employer can waive an employee’s 

FMLA notice requirements, an employer 

cannot require an employee to comply 

with stricter FMLA requirements if a 

collective bargaining agreement, State 

law, or the employer’s leave policies 

allow less notice. 

Timing of Notice 

Proposed § 825.302(a) retains both the 

current requirement that an employee 

must give at least 30 days’ notice when 

the need for FMLA leave is foreseeable 

at least 30 days in advance, and the 

requirement that notice be provided ‘‘as 

soon as practicable’’ if leave is 

foreseeable but 30 days’ notice is not 

practicable. The Department further 

proposes to add that when an employee 

gives less than 30 days’ advance notice, 

the employee must respond to a request 

from the employer and explain why it 

was not practicable to give 30 days’

notice. 

The Department proposes to delete 

the second sentence of current 

paragraph (b) of this section, which 

defines ‘‘as soon as practicable’’ as 

‘‘ordinarily * * * within one or two 

business days of when the need for 

leave becomes known to the employee.’’

While the ‘‘one to two business days’ ’’

timeframe was intended as an 

illustrative outer limit, Wage and Hour 

Opinion Letter FMLA–101 (Jan. 15, 

1999), in effect, mistakenly read the 

regulation as allowing employees two 

business days from learning of their 

need for leave to provide notice to their 

employers, regardless of whether it 

would have been practicable to provide 

notice more quickly. In that letter, the 

Department found that an absence 

policy that required employees to report 

their absences within one hour after the 

start of their shift, unless they were 

unable to do so due to circumstances 

beyond their control, was contrary to 

the FMLA’s notice procedures. The 

Department provided the following 

example of the employee’s notice 

obligation: 

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 

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 policy. 

Comments received in response to the 

RFI indicated that the ‘‘two-day rule’’

has created significant problems for 

employers in maintaining appropriate 

staffing levels. See, e.g., Southwest 

Airlines Co. (‘‘[T]he 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.’’); 

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 

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provided sooner under the particular 

facts and circumstances.’’). 

The Department is aware that timely 

notice of an employee’s need for FMLA 

leave is critical to the balance struck in 

the Act between the employee’s ability 

‘‘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’’ and ‘‘the legitimate 

interests of employers.’’ 29 U.S.C. 

2601(b). Absent emergency situations, 

where an employee becomes aware of a 

need for FMLA leave less than 30 days 

in advance, the Department expects that 

it will be practicable for the employee 

to provide notice of the need for leave 

either the same day (if the employee 

becomes aware of the need for leave 

during work hours) or the next business 

day (if the employee becomes aware of 

the need for leave after work hours). 

Accordingly, the Department proposes 

to add examples to proposed paragraph 

(b) clarifying the employee’s obligation 

to provide notice ‘‘as soon as 

practicable.’’

Content of Notice 

Many commenters responding to the 

RFI identified issues relating to the 

sufficiency of the information provided 

by employees when notifying their 

employers of the need for FMLA leave, 

which is addressed in current 

§ 825.302(c). For example, the National 

Coalition To Protect Family Leave stated 

that ‘‘employees who call in because of 

their own or a family member’s medical 

condition do not necessarily provide 

sufficient information for an employer 

to [determine whether the leave 

qualifies for FMLA protection]. 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.’’ Jackson Lewis LLP 

similarly noted that employers 

sometimes have difficulty in identifying 

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 is also 

na ̈ive 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.’’

A number of commenters offered 

suggestions for how the Department 

could clarify what information 

constitutes sufficient notice. Some 

commenters suggested that an 

employee’s leave request should have to 

be in writing, or that the request should 

have to specifically mention the FMLA. 

See, e.g., Edison Electric Institute, Miles 

& Stockbridge, P.C., Pierce County, 

Washington, Spencer Fane Britt & 

Browne LLP, and DST Systems, Inc. The 

South Central Human Resource 

Management Association suggested: 

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 the 

employee were required to mention the 

FMLA when making such a request. 

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. The 

Williams Mullen law firm suggested 

that the Department should implement 

detailed regulations that provide 

necessary language or actions that must 

be taken by employees to put their 

employers on notice of their intent to 

take FMLA leave. The U.S. Chamber of 

Commerce suggested that employees 

should be required to specify the 

purpose of any instance of FMLA leave, 

such as a doctor’s appointment, 

physical treatment, etc., so that 

employers can assess veracity when 

employees appear to be abusing the 

leave policy. The Association of 

Corporate Counsel proposed that the 

DOL should revise the regulations to 

make 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. 

One reason employees may provide 

less notice than employers want may be 

employees’ lack of awareness of their 

rights and obligations. As noted above, 

numerous commenters to the RFI 

emphasized that employees remain 

unaware of their rights under the FMLA. 

See comments by National Partnership 

for Women & Families, Madison Gas 

and Electric Company, Legal Aid 

Society-Employer Law Center. As the 

AARP commented, even employees who 

have some general awareness of the law 

do not know the details of the law or 

whether it applies to them. These 

commenters also noted that employers 

fail to provide employees with effective 

information about their rights. 

In light of these comments, the 

Department proposes to retain in 

§ 825.302(c) the standard that an 

employee need not assert his or her 

rights under the FMLA or even mention 

the FMLA to put the employer on notice 

of the need for FMLA leave, but at the 

same time employees must provide 

sufficient information to make an 

employer aware that FMLA rights may 

be at issue. The Department proposes to 

clarify that sufficient information must 

indicate that the employee is unable to 

perform the functions of the job (or that 

a covered family member is unable to 

participate in regular daily activities), 

the anticipated duration of the absence, 

and whether the employee (or family 

member) intends to visit a health care 

provider or is receiving continuing 

treatment. 

The Department believes that this 

proposal will provide employers with 

the information necessary to determine 

whether absences may be covered by the 

FMLA, without being overly 

prescriptive in the wording that an 

employee must use to request leave. The 

proposal will also facilitate the early 

identification of potentially FMLAprotected absences. Finally, the 

increased specificity in the proposed 

rule will protect employees from losing 

FMLA rights by inadvertently failing to 

put the employer on notice of the need 

for FMLA leave. The Department also 

proposes to include such information in 

the general notice that employers are 

required to post and either to provide in 

an employee handbook or distribute at 

least annually, as specified in proposed 

§ 825.300(a), to ensure that employees 

are aware of the information they must 

provide. 

This proposed section continues to 

require employers to inquire further if 

they need additional information in 

order to obtain the necessary details 

about the leave. The proposed rule also 

states that employees must respond to 

employers’ inquiries designed to 

determine whether leave is FMLAqualifying or risk losing FMLA 

protection if the employer is unable to 

determine whether the leave qualifies. 

The Department seeks comment as to 

whether a different notice standard 

requiring employees to expressly assert 

their FMLA rights should apply in 

situations in which an employee has 

previously provided sufficient notice of 

a serious health condition necessitating 

leave and is subsequently providing 

notice of dates of leave due to the 

condition that were either previously 

unknown or changed. For example, 

where an employee has taken two weeks 

of FMLA leave for surgery and recovery, 

and then learns that he or she will need 

to undergo physical therapy once a 

week for four to six weeks upon 

returning to work, should the employee 

be required to specifically notify the 

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employer that the additional leave is 

due to the FMLA-covered condition? 

Usual and Customary Employer 

Procedures 

A number of commenters responding 

to the RFI also addressed the provisions 

in § 825.302(d) regarding compliance 

with employers’ usual and customary 

notice procedures for requesting leave. 

Many employers specifically asserted 

that call-in procedures, which are 

enforced routinely outside the FMLA 

context, can serve as a crucial element 

of an attendance program and are often 

critical to an employer’s ability to 

ensure appropriate staffing levels. In 

discussing the effect call-in 

requirements have on State agencies in 

particular, the Ohio Department of 

Administrative Services commented 

that such procedures are especially 

critical in institutional agencies that 

provide direct care and supervision of 

inmates or patients. A number of 

commenters urged reforming the 

regulations to allow employers to 

enforce attendance policies that require 

employees to observe reasonable call-in 

procedures, including policies that 

require employees to call in to their 

direct supervisors or to a designated 

person in human resources, and to 

allow a penalty for noncompliance. See, 

e.g., comments by American Electric 

Power, Ohio Public Employer Relations 

Association, and National Association 

of Convenience Stores. The University 

of Wisconsin-Milwaukee stated that 

requiring employees to comply with 

regular attendance policies unless there 

is a medical emergency would be 

helpful, because the simple need for 

FMLA leave does not mean that regular 

notification is impossible. 

In response to these comments, the 

proposed revision of § 825.302(d) 

retains the current rule providing that 

an employer may require an employee 

to comply with the employer’s usual 

notice and procedural requirements for 

calling in absences and requesting leave. 

However, the Department proposes to 

eliminate the current language stating 

that an employer cannot delay or deny 

FMLA leave if an employee fails to 

follow such procedures. The 

combination of requiring employees to 

comply with employer absence policies, 

yet prohibiting employers from delaying 

or denying leave if such procedures are 

not met in the current regulation, has 

proved confusing. This confusion has 

been exacerbated by language in the 

preamble accompanying the current rule 

stating that while employers may not 

delay or deny FMLA leave for failure to 

follow absence policies, they may ‘‘take 

appropriate disciplinary action.’’ 60 FR 

at 2221. Cases addressing various types 

of employee call-in procedures, 

including employer requirements that 

employees report absences to specific 

individuals or offices and that they keep 

employers updated regarding their need 

for leave, have analyzed the issue 

differently. Compare, e.g., Bones v. 

Honeywell Int’l Inc., 366 F.3d 869, 878 

(10th Cir. 2004) (‘‘[Employee’s] request 

for an FMLA leave does not shelter her 

from the obligation, which is the same 

as that of any other Honeywell 

employee, to comply with Honeywell’s 

employment policies, including its 

absence policy.’’); Cavin v. Honda of 

America Mfg., Inc., 346 F.3d 713, 723 

(6th Cir. 2003) (‘‘[E]mployers cannot 

deny FMLA relief for failure to comply 

with their internal notice requirements 

[to call a specified department].’’); Lewis 

v. Holsum of Fort Wayne, Inc., 278 F.3d 

706, 710 (7th Cir. 2002) (failure to 

follow three-day no-call rule legitimate 

basis for termination and did not violate 

FMLA); Gilliam v. UPS, 233 F.3d 969 

(7th Cir. 2000) (upholding application of 

three-day no-call rule). 

Accordingly, the Department 

proposes that, absent unusual 

circumstances, employees may be 

required to follow established call-in 

procedures (except one that imposes a 

more stringent timing requirement than 

the regulations provide), and failure to 

properly notify employers of absences 

may cause a delay or denial of FMLA 

protections (as explained in § 825.304). 

Unusual circumstances would include 

situations such as when an employee is 

hospitalized and his/her spouse calls 

the supervisor to report the absence, 

unaware that the attendance policy 

requires that the human resources 

department be called instead of the 

supervisor. However, FMLA-protected 

leave cannot be delayed or denied for 

failure to meet the employer’s timing 

standard where the standard is more 

stringent than those established in 

§ 825.302(a). This proposed revision of 

§ 825.302(d) recognizes that call-in 

procedures are necessary for employers 

to provide proper coverage to run their 

businesses. The proposal also benefits 

employees by ensuring early 

identification and protection of 

absences covered by the FMLA. 

Where FMLA protection is 

appropriately delayed because the 

employee did not provide timely notice 

of the need for leave, and the employee 

has an absence during the period in 

which he/she accordingly is not entitled 

to FMLA protection, that absence is 

unprotected and can be treated in the 

same manner the employer would treat 

any other unexcused absence. This is a 

clarification of the ramifications of 

failing to provide timely notice, and not 

a change in current law. For example, if 

an employee could have provided two 

weeks notice of a doctor’s appointment 

for treatment of a serious health 

condition, but instead provides only one 

week’s notice of the appointment, the 

employer may delay FMLA-protected 

leave for one week (i.e., if the employee 

could have provided notice on the 7th 

day of the month of an appointment on 

the 21st day, but instead only provides 

notice on the 14th day, the employer 

may delay FMLA leave until the 28th 

day (two weeks after the notice was 

provided)). If the employee does not 

delay the taking of the leave, the 

absence will be unprotected and the 

employer can treat the absence in the 

same manner as any unexcused absence 

(i.e., if the employee in the example 

above is absent on the 21st day, instead 

of delaying the absence until the notice 

period is met, the employer may treat 

the absence as an unexcused absence 

under its normal leave policies). 

Alternatively, the employer would have 

the option of accepting the employee’s 

late notice and counting the leave 

against the employee’s FMLA 

entitlement. See § 825.302(g). 

Proposed § 825.302(g) retains 

language stating that employers may 

waive employees’ FMLA notice 

requirements. The Department proposes 

to delete language, however, stating that 

employers cannot enforce FMLA notice 

requirements if those requirements are 

stricter than the terms of a collective 

bargaining agreement, State law or 

employer leave policy. The example 

provided in current § 825.302(g) of an 

employee substituting paid vacation 

leave and the employer not being able 

to require notice from the employee 

under the FMLA because the vacation 

leave policy does not require advance 

notice has proved confusing because it 

is inconsistent with the employer’s right 

to require notice under the FMLA. 

Accordingly, this language has been 

deleted. Sections 825.700 and 825.701 

address in more detail the interaction 

between the FMLA and the provisions 

of collective bargaining agreements, 

State law, and employer policies. 

Section 825.303 (Employee notice 

requirements for unforeseeable FMLA 

leave) 

Current § 825.303 explains what 

notice an employee must give in the 

case of unforeseeable leave. Specifically, 

current paragraph (a) explains the ‘‘as 

soon as practicable’’ required timing of 

the notice, and current paragraph (b) 

sets forth the method by which notice 

can be given. The Department has heard 

from numerous employers that the 

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taking of unforeseeable leave is central 

to the administrative problems they 

experience with the FMLA, and the 

SHRM FMLA Survey revealed that in its 

members’ experiences, 60 percent of all 

FMLA leave is unforeseeable leave. 

Indeed, the significant number of cases 

that have been litigated as to what 

constitutes sufficient notice from an 

employee in the case of unforeseeable 

leave confirms the difficulties both 

employers and employees experience 

under the current regulation. See 

Spangler v. Federal Home Loan Bank, 

278 F.3d 847, 852 (8th Cir. 2002) 

(employee, who had made employer 

aware that she had problems with 

depression, gave sufficient notice when 

she called in and indicated she was out 

because of ‘‘depression again’’); Gay v. 

Gilman Paper Co., 125 F.3d 1432, 1434–

35 (11th Cir. 1997) (husband calling for 

employee and indicating wife in the 

hospital having some tests run was not 

sufficient notice); Carter v. Ford Motor 

Co., 121 F.3d 1146, 1148–49 (8th Cir. 

1997) (employee’s wife calling and 

indicating he would be out because of 

family problems did not provide 

sufficient notice); Barr v. New York City 

Transit Auth., 2002 WL 257823, at *7–

8 (E.D.N.Y. 2002) (employee calling in 

sick reporting ‘‘swelling and tightness’’

in legs and follow-up doctor’s note 

indicating swelling in legs and rapid 

heart beat provided sufficient notice); 

Mora v. Chem-Tronics, Inc., 16 F. Supp. 

2d 1192, 1216–17 (S.D. Cal. 1998) 

(invalidating call-in rule requiring 

employees to call in 30 minutes prior to 

shift in all circumstances); Hendry v. 

GTE North, Inc., 896 F. Supp. 816, 828 

(N.D. Ind. 1995) (employee calling in ill 

with a migraine headache provided 

sufficient notice). 

Employers and their representatives 

also mentioned the timing of employee 

notification of the need for 

unforeseeable intermittent leave as a 

particular problem in their 

administration of the FMLA. For 

example, Spokane County commented 

that it is often not notified that an 

employee is out for a serious health 

condition until after the employee 

returns to work. The Pennsylvania 

Turnpike Commission stated: 

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. 

Numerous other employer 

commenters asserted that the ‘‘two day 

rule’’ interpreted in Wage and Hour 

Opinion Letter FMLA–101 (see 

discussion in § 825.302) is even more 

unworkable in the context of unforeseen 

FMLA leave because the employee is 

not required to report the absence prior 

to the start of his/her shift even where 

it is practicable to do so. See, e.g., 

Southwest Airlines Co. (the two-day 

rule allows employees to remain silent 

when they have the knowledge and 

ability to give timely notice, and it ‘‘fails 

to recognize an employer’s legitimate 

operational need for timely notice’’); 

National Association of Manufacturers 

(employees taking ‘‘unscheduled 

intermittent leave routinely ignore 

mandatory shift call-in procedures (even 

if they are fully able to comply), wait 

two working days * * * and then report 

their absence as FMLA-qualifying’’). 

The National Partnership for Women 

& Families and other employee 

advocates agreed that employees should 

notify their employers about their need 

for leave as quickly as is reasonably 

possible, but asserted that it also is 

important to ensure that employees are 

not penalized unfairly when confronted 

with unexpected emergencies. The 

Center for WorkLife Law similarly noted 

that for ‘‘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.’’

The Legal Aid Society’s Employment 

Law Center noted that chronic illnesses 

are devastating and wreak havoc on 

employees’ lives also, and that the 

FMLA was specifically designed to 

cover such episodic absences. The AFLCIO and the Association of Professional 

Flight Attendants emphasized that 

employees who experience 

unforeseeable absences due to chronic 

conditions are precisely those most in 

need of the FMLA’s protections, because 

their jobs are more in jeopardy than 

those of employees who suffer from a 

longer illness only once every two or 

three years. In explaining the difficulties 

for employees who live with 

unforeseeable health conditions, an 

employee 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. * * * 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. 

In light of the apparent confusion 

with regard to timing and sufficiency of 

the required notice, and the critically 

important nature of this topic, the 

Department proposes to further clarify 

what constitutes timely and sufficient 

notice when the need for leave is not 

foreseeable. 

Timing of Notice When ‘‘Not 

Foreseeable’’

In the case of unforeseeable leave, the 

Department proposes to maintain the 

requirement that an employee provide 

notice as soon as practicable under the 

facts and circumstances of the particular 

case. While this is the same standard as 

notice for FMLA leave that is 

foreseeable less than 30 days in 

advance, the Department is aware that 

the employer’s need for prompt notice 

of the need for leave is heightened in 

situations in which the need for leave is 

not foreseeable. It is critical in such 

situations that the employer be notified 

of the employee’s absence promptly so 

that the employer can assure 

appropriate staffing. Accordingly, the 

Department expects that in all but the 

most extraordinary circumstances, 

employees will be able to provide notice 

to their employers of the need for leave 

at least prior to the start of their shift. 

To emphasize the importance of 

notice when the need for FMLA leave 

was unforeseen, the Department 

proposes to add language to § 825.302(a) 

to clarify that it is expected employees 

will provide notice to their employers 

promptly. For example, if an employee’s 

child has a severe asthma attack and the 

employee takes the child to the 

emergency room, the employee would 

not be required to leave his/her child in 

order to report the absence while the 

child is receiving emergency treatment; 

once the child’s medical situation has 

stabilized, the employee can be 

expected to report the absence. 

However, if the child’s asthma attack is 

resolved by the use of an inhaler at 

home followed by a period of rest, the 

employee would be expected to call the 

employer promptly after ensuring the 

child has used the inhaler. The 

Department believes that this proposal 

better balances the needs of employees 

to take unforeseeable FMLA leave with 

the interests of employers and other 

employees. 

Content of Notice When ‘‘Not 

Foreseeable’’

In proposed paragraph (b), the 

Department retains the standard that an 

employee need not assert his or her 

rights under the FMLA or even mention 

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the FMLA to put the employer on notice 

of the need for FMLA leave. However, 

consistent with the proposed changes 

discussed above with respect to 

§ 825.302, the Department proposes to 

require that the employee provide the 

employer with sufficient information to 

put the employer on notice that the 

absence may be FMLA-protected. See 

Sarnowski v. Air Brook Limousine, Inc., 

F.3d—, 2007 WL 4323259, at *3 (3rd 

Cir. 2007) (‘‘In providing notice, the 

employee need not use any magic 

words. The critical question is how the 

information conveyed to the employer is 

reasonably interpreted.’’). Sufficient 

information is defined in the same 

manner as proposed § 825.302(c), which 

is information that indicates that the 

employee is unable to perform the 

functions of the job, the anticipated 

duration of the absence, and whether 

the employee intends to visit a health 

care provider. In addition, because 

issues are frequently raised with 

employees giving notice of unforeseen 

absences by simply calling in ‘‘sick,’’

proposed § 825.303(b) clarifies that 

calling in with the simple statement that 

the employee or the employee’s family 

member is ‘‘sick’’ without providing 

more information will not be considered 

sufficient notice to trigger an employer’s 

obligations under the Act in the case of 

unforeseeable leave. Of course, many 

unforeseeable conditions do develop 

and deteriorate over a period of a few 

days, and a condition that did not 

initially appear to be a serious health 

condition may develop into one. The 

employee would be expected to provide 

the employer the additional information 

needed to determine if the serious 

health condition standard is met as it 

became available. 

The Department seeks comment as to 

whether a different notice standard 

requiring employees to expressly assert 

their FMLA rights should apply in 

situations in which an employee has 

previously provided sufficient notice of 

a serious health condition necessitating 

leave and is subsequently providing 

notice of dates of leave due to the 

condition that were either previously 

unknown or changed. 

Complying With Employer Policy When 

‘‘Not Foreseeable’’

Proposed § 825.303(c) clarifies that an 

employee must comply with the 

employer’s usual procedures for calling 

in and requesting unforeseeable leave, 

except when extraordinary 

circumstances exist (or the procedure 

imposes a more stringent timing 

requirement than the regulations 

provide), such as when the employee or 

a family member needs emergency 

medical treatment. For example, an 

employee who seeks emergency 

treatment at a hospital may not be able 

to comply with the employer’s absence 

reporting procedures if the employee 

does not have the telephone number for 

reporting absences with him or her and 

therefore leaves a message on the 

supervisor’s voicemail (the employee 

may also be unable to comply with the 

employer’s timing requirements due to 

the emergency treatment). In contrast, 

an employee who suffers a flare-up of a 

chronic condition for which rest and 

self-medication are the appropriate 

treatment should be able to comply with 

the employer’s normal absence 

reporting procedure. 

If an employee fails to follow the 

employer’s call-in procedures (assuming 

any required timing is not more 

stringent than required by § 825.303(a)), 

except under extraordinary 

circumstances, then the employee is 

subject to whatever discipline the 

employer’s rules provide for such a 

failure and the employer may delay 

FMLA coverage until the employee 

complies with the rules. For example, 

an employer requires that workers 

needing unscheduled leave call a 

designated call-in number instead of 

leaving a message on the supervisor’s 

voicemail. An employee with a medical 

certification under FMLA for migraines 

leaves a message on the supervisor’s 

voicemail indicating that the employee 

will be absent due to a migraine. Unless 

some extraordinary circumstance 

prevented the employee from complying 

with the employer’s requirement that 

the employee call the designated call-in 

number, the employer may treat the 

employee’s failure to comply with the 

call-in rule in the same manner it would 

normally handle such an infraction. The 

employer may also delay FMLA 

protected leave until the employee 

complies with the call-in procedure. Of 

course, if the employer chooses to delay 

the employee’s FMLA leave until the 

employee complies with the call-in 

procedure, any leave that is not FMLA 

protected may not be counted against 

the employee’s FMLA entitlement. 

Proposed § 825.303(c) also contains 

language from current § 825.303(a) 

stating that employers may not enforce 

advance written notice requirements 

where the leave is due to a medical 

emergency. 

Section 825.304 (Employee failure to 

provide notice) 

Current § 825.304 addresses what 

employers may do if an employee fails 

to provide the required notice for FMLA 

leave. Specifically, current paragraph (a) 

states that an employer may waive 

FMLA notice obligations or its own 

internal rules. Current paragraph (b) 

explains that if 30 days notice is not 

provided to the employer for foreseeable 

leave, an employer may delay the taking 

of FMLA leave for 30 days after the date 

notice is given if no reasonable excuse 

is provided. Current paragraph (c) states 

that leave cannot be delayed if the 

employee was not aware of his or her 

notice requirements or the need for 

leave and its timing were not clearly 

foreseeable to the employee 30 days in 

advance. 

The proposal states the rules 

applicable to leave foreseeable at least 

30 days in advance, foreseeable less 

than 30 days in advance, and 

unforeseeable in different paragraphs for 

purposes of clarity. Specifically, the 

Department proposes language that 

provides practical examples of what it 

means to delay FMLA leave in cases of 

both foreseeable and unforeseeable 

leave, such as a case where an employee 

reasonably should have given the 

employer two weeks notice but instead 

only provided one week notice. The 

proposal provides that in such a case, 

the employer may delay FMLA 

protected leave for one week. The 

proposal also provides that an employer 

can take disciplinary action for the 

employee’s violation of the employer’s 

internal call-in procedures, as long as 

such procedures and discipline are 

applied equally to employees taking 

leave for non-FMLA reasons and the 

procedures do not require more advance 

notice than the standard in § 825.303. 

Finally, the Department proposes to 

retain language from current paragraph 

(c) stating that FMLA leave cannot be 

delayed due to lack of required notice 

if the employer has not complied with 

its notice requirements, which now will 

also include providing the general 

notice in an employee handbook or 

annual distribution, as set forth in 

proposed § 825.300. 

Section 825.305 (Medical certification, 

general rule) 

Current § 825.305(a) sets forth the 

general rule as to when an employer 

may request that an employee provide a 

medical certification form to 

substantiate the need for FMLA leave in 

connection with a serious health 

condition. 

Current § 825.305(b) states that when 

leave is foreseeable and at least 30 

(calendar) days notice has been given, 

‘‘the employee should provide the 

medical certification before the leave 

begins.’’ If that is not possible, then the 

employer must give the employee at 

least 15 calendar days to provide the 

certification, unless it is not practicable 

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to do so despite the employee’s diligent, 

good-faith efforts. 

To help ensure that both employees 

and employers better understand this 

requirement, the Department proposes 

that the time-frame in this section for 

submitting a medical certification be 

modified to clearly apply the 15-day 

standard for both foreseeable and 

unforeseeable leave, consistent with the 

language in current § 825.311(a) and (b). 

The Department solicits comments on 

whether language should be added to 

paragraph (b) of this section that would 

state that an employer must notify the 

employee if the certification has not 

been returned in the 15-day time period, 

and give the employee another seven 

calendar days to provide the 

certification unless it is not practicable 

under the particular circumstances to do 

so despite the employee’s diligent, good 

faith efforts. The Department believes 

that this proposed requirement may be 

necessary in light of Urban v. 

Dolgencorp of Texas, Inc., 393 F.3d 572 

(5th Cir. 2004), a decision which found 

an employee was not entitled to FMLA 

leave because a certification was not 

returned to the employer after a 15-day 

extension was granted to the employee 

to submit the certification. In Urban, the 

employee argued that she did not realize 

that her health care provider had not 

returned the certification to the 

employer. She argued that since it was 

not sent to her employer, she provided 

an ‘‘incomplete’’ certification, and 

therefore should have had an 

opportunity to ‘cure’ the deficiency 

under § 825.305(d). The court rejected 

this argument, finding that a 

certification that was never given to the 

employer was not ‘‘incomplete,’’ and 

therefore the employee could not avail 

herself of the provisions in § 825.305(d). 

The court also observed that, as a policy 

matter, the stated purpose of the FMLA 

was to ‘‘balance the demands of the 

workplace with the needs of families’’

and ‘‘to entitle employees to take 

reasonable leave for medical reasons’’ in 

a ‘‘manner that accommodates the 

legitimate interests of employers.’’ The 

court reasoned that ‘‘it would seem 

illogical to require an employer to 

continually notify an employee who 

failed to submit medical certification 

within a specified deadline,’’ observing 

that in the case of Urban, a 15-day 

extension had already been granted. Id. 

at 577. 

Current § 825.305(c) provides that an 

employer should request medical 

certification from the employee within 

two business days of receiving the 

employee notice. Consistent with the 

modifications made to proposed 

§ 825.300, the Department proposes a 

five-business day standard and the 

requirement has been incorporated into 

proposed paragraph (b). 

The Department proposes to create a 

new paragraph (c) entitled ‘‘complete 

and sufficient certification,’’

incorporated in part from paragraph (d) 

of the current regulation. The 

Department has retained the standard 

from the current regulations, which 

advises employers that in the case of an 

incomplete certification, they must give 

the employee a reasonable period of 

time to cure any deficiency. The 

Department proposes new language that 

states ‘‘a certification is considered 

incomplete if the employer receives a 

certification, but one or more of the 

applicable entries have not been 

completed.’’ In response to the RFI, 

many commenters, including 

employers, employees, and health care 

providers, expressed dissatisfaction 

with the current medical certification 

process. The Department held a 

stakeholder meeting with 

representatives of each of these groups 

in September 2007. Multiple employers 

commented to the RFI that a 

certification should require not just that 

the form is completed, but that 

meaningful responses are given to the 

questions. See, e.g., National Coalition 

To Protect Family Leave (‘‘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 (‘‘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.’’). The 

Department agrees that an adequate 

FMLA certification requires responsive 

answers and therefore also proposes to 

define an insufficient certification as 

one where the information provided is 

‘‘vague, ambiguous or non-responsive.’’

The Department proposes to define 

these terms because it is aware that 

employers are unsure in many 

circumstances what the distinction is 

between an incomplete versus an 

insufficient certification, and whether 

they must give an employee another 

opportunity to provide sufficient 

certification when the initial 

certification does not establish that the 

employee has a serious health condition 

or whether they can simply deny FMLA 

leave. The Department believes that by 

defining these terms, employers will 

better understand what triggers their 

obligations to give employees further 

opportunity to provide sufficient 

certification, which will in turn protect 

employees from having employers 

immediately deny them FMLA 

protections based on the initial 

certification provided or deny their 

certifications based on technicalities. 

For example, under the current 

regulation, an employer could interpret 

a ‘‘vague’’ answer to simply be 

insufficient and a basis to deny FMLA 

leave. Under the proposed regulation, 

an employer must allow an employee an 

opportunity to provide sufficient 

certification when the initial 

certification is either incomplete or 

insufficient. 

The Department also proposes to 

clarify the process for curing an 

incomplete or insufficient certification. 

The Department received many 

comments in response to the RFI 

indicating that employers were unsure 

how many opportunities an employee 

must be given to cure an insufficient 

certification. See, e.g., Waste 

Management, Inc. (‘‘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.’’); 

Federal Reserve Bank of Chicago 

(‘‘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 FMLA.’’); 

Society for Human Resource 

Management (‘‘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.’’). Employees and their 

representatives expressed a related 

concern that some employers repeatedly 

indicated that certifications were 

incomplete but failed to specify what 

additional information was necessary, 

oftentimes necessitating that the 

employee make repeated appointments 

with the health care provider in an 

effort to obtain a complete and sufficient 

certification. See, e.g., An Employee 

Comment (‘‘[I]nsurmountable hurdle 

which many employees encounter is, 

upon application for family leave, the 

Company returns the forms asking for 

‘more information’. Even though the 

employee’s Health Care Provider has 

filled out the application sections 

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15See 65 FR 82462 (Dec. 28, 2000). 

relevant to the illness/injury, the 

Company is able to delay, and many 

times deny, for many weeks and months 

the benefits and protections which the 

Act affords.’’); Association of 

Professional Flight Attendants (‘‘[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.’’); 

International Association of Machinists 

and Aerospace Workers (‘‘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.’’) (emphasis in original). To address 

these concerns, proposed § 825.305(c) 

requires that when an employer 

determines that a certification is 

incomplete or insufficient, the employer 

must state in writing what additional 

information is necessary and provide 

the employee with seven calendar days 

to cure the deficiency. Additional time 

must be allowed where the employee 

notifies the employer within the seven 

calendar day period that he or she is 

unable to obtain the additional 

information despite diligent good faith 

efforts. The current regulations provide 

an employee ‘‘a reasonable opportunity’’

but no timeframe for curing an 

insufficient certification and the 

Department believes that a clear 

timeframe will be helpful to employees 

and employers. If the deficiencies 

specified by the employer are not 

corrected in the resubmitted 

certification, the employer may deny the 

taking of FMLA leave. Finally, in light 

of the Urban decision discussed above 

and the confusion that exists on this 

issue, language also is proposed that 

specifies that a certification never 

submitted to the employer does not 

qualify as an incomplete or insufficient 

certification but constitutes a failure to 

provide certification. 

Proposed paragraph (d), titled 

‘‘[c]onsequences,’’ now sets forth the 

consequences if an employee fails to 

provide a complete and sufficient 

medical certification, and reiterates the 

standard under the existing regulations 

that an employer may deny leave. It 

clarifies that it is the employee’s 

responsibility either to provide such a 

complete and sufficient certification or 

to furnish the health care provider 

providing the certification with any 

necessary authorization from the 

employee or the employee’s family 

member—such as that required by the 

Health Insurance Portability and 

Accountability Act (HIPAA) Privacy 

Regulations, 45 CFR Part 160 and 164, 

or any other applicable law—in order 

for the health care provider to release a 

sufficient and complete certification to 

the employer to support the employee’s 

FMLA request. See Wage and Hour 

Opinion Letter FMLA2005–2–A (Sept. 

14, 2005) (‘‘When requested, medical 

certification is a basic qualification for 

FMLA-qualifying leave for a serious 

health condition, and the employee is 

responsible for providing such 

certification to his or her employer. If an 

employee fails to submit a requested 

certification, the leave is not FMLAprotected leave.’’). 

Finally, current § 825.305(e) explains 

the interaction between the employer’s 

sick or medical leave plan and the 

FMLA when paid leave (of any type) is 

substituted for unpaid FMLA leave. The 

current regulation explains that if less 

stringent medical certification standards 

apply to the sick leave plan, those 

standards must be followed when paid 

leave is substituted. The Department 

proposes to delete this section. The 

Department has heard feedback that it is 

unclear what constitutes less stringent 

information and how that information 

would allow an employer to determine 

if the leave should be designated as 

FMLA leave. For example, a plan that 

requires a doctor’s note may be 

considered less stringent or more 

stringent depending on what type of 

information is provided on the note, and 

that information may or may not 

indicate whether the leave is FMLAqualified. See Wage and Hour Opinion 

Letter FMLA–108 (Apr. 13, 2000) 

(finding that certification requirements 

the employer asserted were ‘‘less 

stringent’’ were, in fact, more stringent 

than FMLA requirements). Given this 

confusion, and the fact that Congress 

clearly provided in 29 U.S.C. 2613 that 

an employer could request a medical 

certification to substantiate a ‘‘serious 

health condition’’ as a prerequisite to 

being required to provide FMLA leave, 

the Department proposes to eliminate 

this language. Under the proposed rule, 

if an employee seeks the protections of 

FMLA leave for a serious health 

condition of the employee or qualifying 

family member, an employer has a right 

to have the medical information 

permitted by the statute. Such 

information will best enable an 

employer to determine if the leave is in 

fact FMLA-qualified. In place of the 

deleted text of current § 825.305(e), the 

Department proposes to add a provision 

allowing for annual medical 

certifications in those cases in which 

the serious health condition extends 

beyond a leave year. This proposal 

incorporates in the regulation the 

Department’s statement in Wage and 

Hour Opinion Letter FMLA2005–2–A 

(Sept. 14, 2005) that a new medical 

certification may be required once each 

leave year. 

Section 825.306 (Content of medical 

certification) 

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 or leave on a reduced leave 

schedule and expected duration of such 

leave. Id. 

Current § 825.306 addresses how 

much information an employer can 

obtain in the medical certification to 

substantiate the fact that a serious 

health condition exists. This section 

currently explains that DOL has 

developed an optional form (Form WH–

380) for employees or their family 

members to use in obtaining medical 

certifications and second and third 

opinions from a health care provider to 

substantiate the existence of a serious 

health condition for purposes of FMLA. 

Passage of HIPAA 

Since the current FMLA regulations 

were issued in 1995, Congress enacted 

the Health Insurance Portability and 

Accountability Act (HIPAA) in 1996. 

HIPAA addresses in part the privacy of 

individually identifiable health 

information. The Department of Health 

and Human Services (HHS) 

promulgated regulations in December 

2000 found at 45 CFR Parts 160 and 164 

that provide for the privacy of 

individually identifiable medical 

information.15 These regulations apply 

only to ‘‘covered entities,’’ defined as a 

health plan, a health care clearinghouse, 

or a health care provider who transmits 

any health information in electronic 

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form in connection with a transaction as 

defined in the privacy regulations. See 

45 CFR 160.102(a), 160.103. HHS has 

stated that the statute does not include 

‘‘employers per se as covered entities.’’

Therefore, the HHS regulations do not 

regulate an employer, ‘‘even when it is 

a covered entity acting as an employer.’’

See 67 FR 53192 (Aug. 14, 2002). 

The final regulations issued by HHS 

may have an impact, either directly or 

indirectly, on the medical certification 

process for FMLA purposes. Under the 

HIPAA Privacy Rule, the health care 

provider is permitted to disclose 

protected health information directly to 

the patient. Therefore, if the employee 

has the health care provider complete 

the medical certification form or a 

document containing the equivalent 

information and personally requests a 

copy of that form to take or send to the 

employer, the HIPAA Privacy Rule does 

not and should not impede the 

disclosure of the protected health 

information. If the employee asks the 

health care provider to send the 

completed certification form or medical 

information directly to the employer or 

the employer’s representative, however, 

the HIPAA Privacy Rule will require the 

health care provider to receive a valid 

authorization from the employee before 

the health care provider can share the 

protected medical information with the 

employer. As employers have a 

statutory right to require sufficient 

medical information to support an 

employee’s request for FMLA leave for 

a serious health condition, if an 

employee does not fulfill his or her 

obligation to provide such information 

upon request, the employee will not 

qualify for FMLA leave. See Wage and 

Hour Opinion Letter FMLA2005–2–A 

(Sept. 14, 2005). 

Current Certification Requirements 

With regard to what constitutes 

sufficient medical certification, current 

§ 825.306(b)(1) states that the health 

care provider must identify which part 

of the definition of ‘‘serious health 

condition,’’ if any, applies to the 

patient’s condition, and the medical 

facts which support the certification, 

including a brief statement as to how 

the medical facts meet the criteria of the 

definition. Current § 825.306(b)(2)(i) 

asks for the approximate date the 

serious health condition commenced, 

and its probable duration, including the 

probable duration of the patient’s 

present incapacity (defined to mean 

inability to work, attend school or 

perform other regular daily activities 

due to the serious health condition, 

treatment therefor, or recovery 

therefrom) if different. 

Paragraph (b)(2)(ii) of this section asks 

whether it will be necessary for the 

employee to take leave intermittently or 

to work on a reduced leave schedule 

basis (i.e., part-time) as a result of the 

serious health condition (see current 

§§ 825.117, 825.203), and if so, the 

probable duration of such schedule. 

Current paragraph (b)(2)(iii) asks if the 

condition is pregnancy or a chronic 

condition within the meaning of current 

§ 825.114(a)(2)(iii), whether the patient 

is presently incapacitated and the likely 

duration and frequency of episodes of 

incapacity. 

Current paragraph (b)(3)(i)(A) asks if 

additional treatments will be required 

for the condition, and an estimate of the 

probable number of such treatments. 

Paragraph (b)(3)(i)(B) asks if the 

patient’s incapacity will be intermittent, 

or will require a reduced leave 

schedule, an estimate of the probable 

number of and interval between such 

treatments, actual or estimated dates of 

treatment if known, and period required 

for recovery if any. Paragraph (b)(3)(ii) 

asks if any of the treatments will be 

provided by another provider of health 

services (e.g., physical therapist), and 

the nature of the treatments. Paragraph 

(b)(3)(iii) asks if a regimen of continuing 

treatment by the patient is required 

under the supervision of the health care 

provider, and if so, a general description 

of the regimen (see current 

§ 825.114(b)). 

Paragraph (b)(4) asks, if medical leave 

is required for the employee’s absence 

from work because of the employee’s 

own condition (including absences due 

to pregnancy or a chronic condition), 

whether the employee: (i) is unable to 

perform work of any kind; (ii) is unable 

to perform any one or more of the 

essential functions of the employee’s 

position, including a statement of the 

essential functions the employee is 

unable to perform (see current 

§ 825.115), based on either information 

provided on a statement from the 

employer of the essential functions of 

the position or, if not provided, 

discussion with the employee about the 

employee’s job functions; or (iii) must 

be absent from work for treatment. 

Paragraph (b)(5)(i) asks, if leave is 

required to care for the employee’s 

family member with a serious health 

condition, whether the patient requires 

assistance for basic medical or personal 

needs or safety, or for transportation; or 

if not, whether the employee’s presence 

to provide psychological comfort would 

be beneficial to the patient or assist in 

the patient’s recovery. The employee is 

required to indicate on the form the care 

he or she will provide and an estimate 

of the time period. Paragraph (b)(5)(ii) 

asks if the employee’s family member 

will need care only intermittently or on 

a reduced leave schedule basis (i.e., 

part-time), and the probable duration of 

the need. 

The RFI sought comments on how the 

current form WH–380 is working and 

what improvements could be made to it 

to facilitate the certification process. 

The Department received significant 

feedback from the stakeholder 

community, including health care 

providers, that the existing form is 

confusing. See, e.g., American Academy 

of Family Physicians (‘‘The form WH–

380 is overly complicated and confusing 

in its format.’’); United Parcel Service, 

Inc. (‘‘The current WH–380 form is 

poorly drafted and confusing.’’); 

Association of Corporate Counsel (‘‘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.’’). Indeed, stakeholders have 

shared with the Department that in a 

number of cases, health care providers 

have refused to complete the 

certification form. As the employee has 

the statutory burden of providing 

sufficient medical information to 

substantiate the need for FMLA leave, 

this confusion poses a serious hardship 

to the employee. Several stakeholders 

also have criticized the form for asking 

health care providers to render legal 

conclusions by certifying whether a 

serious health condition exists as 

defined by the FMLA. 

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 (suggesting separate forms for 

block and intermittent leave); National 

Council of Chain Restaurants 

(suggesting separate forms for employee 

and family members); Spencer Fane 

suggesting forms 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.’’). 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; see also 

Kennedy Reeve & Knoll (‘‘The model 

certification form must be simplified, 

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and then it must be the required form 

for employers to use.’’). 

In reviewing the criticisms of the 

medical certification form, the 

Department notes that employers have a 

statutory right to obtain sufficient 

medical certification from an employee 

to substantiate the existence of a serious 

health condition. See 29 U.S.C. 2613(a), 

(b). However, the Department believes 

that the form can be simplified to make 

it easier for health care providers to 

understand and complete. The 

Department proposes the following 

revisions to the medical certification 

form, to implement the statutory 

requirements for ‘‘sufficiency’’ of the 

medical certification as set forth in 29 

U.S.C. 2613(b). The Department has 

declined at this time to create multiple 

forms. However, the Department seeks 

feedback as to whether multiple forms 

would be clearer than the revised Form 

WH–380 proposed in this rulemaking 

(see Appendix B to these proposed 

regulations). 

Proposed Certification Requirements 

Before detailing the proposed changes 

to this section, the Department notes 

that the medical certification process 

remains optional for the employer. That 

is, an employer is always free to 

designate qualifying leave as FMLA 

leave without requiring medical 

certification of the underlying 

condition. See 29 CFR § 825.305(a). 

Proposed § 825.306(a)(1) still requires 

that the name and address of the health 

care provider and type of medical 

practice be identified, but also requires 

that the pertinent specialization and fax 

number of the health care provider be 

provided. This addition allows the 

employer to more efficiently contact the 

health care provider for purposes of 

clarification and authentication as 

appropriate and in accordance with 

proposed § 825.307 (discussed below). 

The question of the approximate date on 

which the serious health condition 

commenced and the probable duration 

has been retained in proposed 

§ 825.306(a)(2). 

Consistent with the statute, the 

Department proposes to retain the 

requirement that a complete 

certification contain appropriate 

medical facts regarding the patient’s 

health condition for which FMLA leave 

is requested. See 29 U.S.C. 2613(b)(3). 

The Department also has added 

guidance in this regulatory section as to 

what constitutes sufficient medical facts 

for purposes of responding to this 

question. Specifically, the Department 

proposes that such medical facts may 

include information on symptoms, 

hospitalization, doctors visits, whether 

medication has been prescribed, 

referrals for evaluation or treatment 

(physical therapy, for example) or any 

other regimen of continuing treatment. 

These examples of what constitutes 

sufficient medical facts streamline the 

certification form by eliminating the 

need to ask several other questions that 

are contained in the current regulations, 

specifically those listed in 

§ 825.306(b)(2)(iii), (b)(3)(i)(A), (b)(3)(ii), 

and (b)(3)(iii), and are intended to 

simplify the certification process for 

health care providers. 

Proposed § 825.306(a)(3) also states 

that the health care provider may 

provide information on the diagnosis of 

the patient’s health condition. The term 

‘‘diagnosis’’ was specifically not 

included in the 1995 final regulations 

due to concerns expressed under the 

Americans with Disabilities Act. See 

Preamble to Final FMLA Regulations, 60 

FR at 2222. As noted, in response to the 

RFI, several commenters specifically 

requested that the Department require 

the employee’s health care provider to 

specify a diagnosis. See, e.g., South 

Central Human Resource Management 

Association (‘‘an employer should be 

permitted to obtain diagnosis and 

prognosis’’); Detroit Medical Center (‘‘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.’’); MedStar 

Health, Inc. (‘‘[T]he 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.’’). In 

practice, in many cases it may be 

difficult to provide sufficient medical 

facts without providing the actual 

diagnosis, and in some cases the 

employee may prefer that a diagnosis be 

provided as opposed to more detailed 

medical facts. The Department is also 

aware that the diagnosis may often be 

provided in practice under the current 

regulation. For example, many health 

care providers may currently write a 

diagnosis such as ‘‘asthma’’ on the 

certification form instead of describing 

symptoms such as ‘‘intermittent 

difficulty in breathing due to inflamed 

airways.’’ The Department proposes, 

therefore, that such information be 

allowed on the FMLA leave certification 

form. However, the Department does not 

intend to suggest, by including such 

language, that a diagnosis is a necessary 

component of a complete FMLA 

certification. If the medical facts set 

forth by the health care provider’s 

medical certification establish the 

necessity for leave due to a serious 

health condition without reference to 

the employee’s diagnosis, a diagnosis is 

not necessary and may not be required. 

The health care provider determines the 

appropriate relevant medical facts in 

any case and the employer determines 

if the certification is complete and 

sufficient to meet the regulatory 

definition of a serious health condition. 

Proposed § 825.306(a)(4) requires that 

the health care provider provide 

sufficient information to establish that 

the employee cannot perform the 

functions of the employee’s job and the 

likely duration of such inability, 

consistent with current § 825.306(b)(4). 

Proposed § 825.306(a)(5) retains the 

requirement currently found in 

§ 825.306(b)(5)(i) that information be 

provided sufficient to establish that the 

employee is needed to care for a family 

member, if applicable. 

Proposed § 825.306(a)(6), (7), and (8) 

address the need for certification in 

connection with the need for reduced 

schedule or intermittent leave for the 

employee’s own serious health 

condition or that of a family member. 

These paragraphs incorporate the 

requirements set forth in current 

§ 825.306(b)(2)(i) and (ii), (b)(3)(i)(B), 

and (b)(5)(ii). In response to the RFI, 

several commenters noted that current 

§ 825.306 and the WH–380 model 

certification form do 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 under section 

102(b) of the Act. See, e.g., National 

Coalition to Protect Family Leave (‘‘In 

the case of intermittent leave, the 

medical necessity for the intermittent or 

reduced schedule also should be 

specified in accordance with 29 C.F.R. 

§ 825.117 (not currently asked on the 

model form).’’); Society for Human 

Resource Management (same); American 

Electric Power (‘‘Unfortunately, the 

statutory requirement that ‘medical 

necessity’ be demonstrated by 

employees seeking intermittent leave 

has been effectively eliminated by the 

Department’s regulations.’’). Consistent 

with the statutory and the current 

regulatory requirements, the proposed 

section would now clarify that the 

health care provider must certify that 

intermittent or reduced schedule leave 

is medically necessary. 

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Interaction Between FMLA and 

Employer Policies 

Current paragraph (c) of this section 

provides that an employer cannot 

request all of the information set forth 

above to substantiate the existence of a 

serious health condition if an 

employer’s sick leave plan requires less 

information. Consistent with the change 

made to § 825.305(e), the Department 

proposes to eliminate this language. 

Instead, the proposal incorporates 

language from current § 825.307(a)(1), 

which explains the interaction between 

workers’ compensation and the FMLA 

with regard to the clarification of 

medical information. Specifically, the 

current regulation provides that if a 

workers’ compensation statute provides 

for an employer to have direct contact 

with the workers’ compensation health 

care provider, the employer may do so 

even if the leave also may be designated 

FMLA leave. The Department proposes 

to amend this language to state that if 

the employer is permitted ‘‘to request 

additional information’’ from the 

workers’ compensation health care 

provider, the FMLA does not prevent 

the employer from following the 

workers’ compensation provisions. The 

Department notes that for purposes of 

HIPAA, ‘‘individuals do not have a right 

under the Privacy Rule at 56 CFR 

164.522(a) to request that a covered 

entity restrict a disclosure of protected 

health information about them for 

workers’ compensation purposes when 

that disclosure is required by law or 

authorized by, and necessary to comply 

with, a workers’ compensation or 

similar law.’’ See Department of Health 

and Human Services, Office of Civil 

Rights Publication, ‘‘Disclosures For 

Workers’ Compensation Purposes: 

Frequently Asked Questions,’’

December 3, 2002. 

The Department also proposes to add 

language to this section that clarifies the 

interaction between paid leave or 

benefit plans and FMLA leave. 

Consistent with Wage and Hour 

Opinion Letter FMLA2004–3–A (Oct. 4, 

2004), the proposed language in this 

section clarifies that if an employee 

ordinarily is required to provide 

additional medical information to 

receive payments under a paid leave 

plan or benefit plan, an employer may 

require that the employee provide the 

additional information to receive those 

payments, as long as it is made clear to 

the employee that the additional 

information is requested only in 

connection with qualifying for the paid 

leave benefit and does not affect the 

employee’s unpaid FMLA leave 

entitlement. This language reiterates 

what is contained in existing 

§ 825.207(d)(1) with regard to temporary 

disability benefit plans and proposed 

§ 825.207(a), although the existing 

regulations do not define what 

constitutes a disability plan. For 

consistency and clarity, the Department 

proposes that all disability and paid 

leave plans be covered by this 

provision. 

Interaction Between FMLA Certification 

and ADA Medical Inquiries 

The Department received comments 

in response to the RFI indicating that 

employers were frustrated and confused 

by the differing processes for gathering 

medical information under the FMLA 

and the ADA. See generally RFI Report, 

Chapter VII, Interplay Between the 

Family and Medical Leave Act and the 

Americans With Disabilities Act, 72 FR 

at 35599. The United Parcel Service, 

Inc. explained the dilemma faced by 

employers: ‘‘When an FMLA-qualifying 

‘serious health condition’ is also a 

potential ‘disability’ under the ADA, 

[§ 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.’’ See also 

Temple University (‘‘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.’’). The Department 

recognizes that an employee’s request 

for leave due to a serious health 

condition may also trigger the 

interactive process under the ADA to 

determine whether the condition is also 

a disability. The Department therefore 

proposes to add a new § 825.306(d), 

which clarifies that where a serious 

health condition may also be a 

disability, employers are not prevented 

from following the procedures under the 

ADA for requesting medical 

information. 

Finally, the Department received 

comments from employees and their 

representatives indicating that 

employers are incorporating medical 

releases into their FMLA certification 

forms and requiring employees to sign 

the release as a condition of providing 

FMLA leave. See An Employee 

Comment (‘‘Also, my employer [has] 

requested me to sign a medical release 

form for my son’s medical records, or I 

wouldn’t be certified for FMLA.’’); Legal 

Aid Society—Employment Law Center 

(‘‘In some cases, a medical release is 

attached to the FMLA form requesting 

leave, with no explanation of its 

purpose. As a result, many employees 

unwittingly forego their right to medical 

privacy and agree to the unlimited 

disclosure of their entire medical 

history, believing that they must sign 

the release in order to qualify for the 

FMLA.’’); United Steel, Paper and 

Forestry, Rubber, Manufacturing, 

Energy, Allied Industrial and Service 

Workers International Union (‘‘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.’’). In the 

preamble to the current regulations, the 

Department specifically rejected 

suggestions that employees be required 

to sign a release or waiver as part of the 

medical certification process. See 60 FR 

2222 (‘‘The Department has not adopted 

the suggestion that a waiver by the 

employee is necessary for FMLA 

purposes.’’). The Department continues 

to believe that employees should not be 

required to sign a release as a condition 

of taking FMLA leave and has added a 

new § 825.306(e) to clarify this issue. Of 

course, when certification is requested, 

the employee is required to provide the 

employer with a complete and sufficient 

certification and failure to do so may 

result in the delay or denial of FMLA 

leave. 

Section 825.307 (Authentication and 

clarification of medical certification) 

Current § 825.307(a) explains that a 

health care provider working for an 

employer can contact the employee’s 

health care provider with the 

employee’s permission for purposes of 

clarification and authentication of the 

medical certification. Commenters 

raised two major areas of concern in 

their response to the RFI regarding the 

authentication and clarification process: 

(1) The requirement that employers 

obtain employee permission to contact 

the employee’s health care provider, 

and (2) the requirement that a health 

care provider working for the employer 

be utilized to contact the employee’s 

health care provider, rather than 

allowing direct employer contact. 

Several commenters asserted that the 

requirement that an employer obtain the 

employee’s permission prior to seeking 

authentication of the certification from 

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, HR—

Compliance Supervisor, Pemco 

Aeroplex, Inc. (noting difficulty in 

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investigating fraud when employee’s 

consent is necessary for the employer to 

authenticate form with employee’s 

health care provider); United States 

Postal Service (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 (‘‘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.’’). The Department 

notes that authentication involves only 

verifying that the certification was 

completed, or authorized, by the 

employee’s health care provider and 

does not involve disclosure of any 

additional medical information. 

Accordingly, proposed § 825.307(a) 

clarifies the limited nature of the 

authentication process and removes the 

requirement of employee consent to 

authenticate the certification. 

Unlike authentication, clarification 

does involve communication with the 

employee’s health care provider 

regarding the substance of the medical 

information contained in the 

certification. Several commenters noted 

that the passage of HIPAA (discussed 

above in § 825.306) has complicated the 

process of clarification of FMLA 

certifications. See, e.g., Methodist 

Hospital, Thomas Jefferson University 

Hospital (‘‘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 (‘‘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.’’); AIG 

Employee Benefit Solutions’ Disability 

Claims Center (‘‘More than one Provider 

has written ‘HIPAA’ across the Form 

and returned it.’’); Briggs & Stratton 

Corporation (‘‘[M]any physicians still 

insist that they are prohibited by 

[HIPAA] from responding to questions 

on the Certification.’’). 

The Department notes that the HIPAA 

Privacy Rule provides far more 

protection for employee medical 

information than current § 825.307(a). 

For example, a valid authorization 

under the HIPAA Privacy Rule requires, 

in part, a written document containing: 

(1) A description of the information that 

may be disclosed; (2) the name or 

specific identification of the person(s) to 

whom the requested disclosure may be 

made; (3) a description of the purpose 

of the requested disclosure; (4) an 

expiration date or event for the 

authorization; and (5) a signature of the 

individual and date. 45 CFR 

164.508(c)(1). In any instance in which 

the employee’s health care provider is 

disclosing medical information to the 

employer, the HIPAA Privacy Rule 

requires that the employee execute a 

valid authorization prior to the 

disclosure. The Department agrees with 

those commenters who suggested that 

the protections afforded to employee 

medical information by the HIPAA 

Privacy Rule have supplanted the 

requirement in current § 825.307(a) for 

employee permission to clarify the 

certification. See Ohio Public Employer 

Labor Relations Association (‘‘With 

HIPAA laws protecting confidential 

medical information, the excessive 

restrictions found in 29 C.F.R. § 825.307 

are unnecessary and should be 

removed.’’); Taft, Stettinius & Hollister 

LLP (‘‘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 LLC 

(‘‘[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.’’). 

Accordingly, in lieu of the requirement 

in current § 825.307(a) that the 

employee provide permission for the 

employer to clarify the medical 

certification, the Department proposes 

language highlighting that contact 

between the employer and the 

employee’s health care provider for the 

purpose of clarifying the medical 

certification must comply with the 

HIPAA Privacy Rule. Language has also 

been added to make clear that if such 

consent is not given, an employee may 

jeopardize his or her FMLA rights if the 

information provided is incomplete or 

insufficient. 

The second major area of concern 

raised in the comments to the RFI 

regarding § 825.307(a) was the 

requirement that the employer utilize a 

health care provider to contact the 

employee’s 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. (‘‘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 

(‘‘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.’’); 

Hewitt Associates LLC (‘‘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.’’). 

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 

(‘‘[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.’’). Commenters also noted 

that the ADA does not contain a similar 

restriction requiring employers to 

engage medical providers to contact 

employees’ doctors. See, e.g., 

Commonwealth of Pennsylvania; Clark 

Hill PLC; City of New York; Edison 

Electric Instituted. The AFL–CIO, 

however, commented that the use of a 

health care provider was necessary to 

preserve employee privacy. 

The Department has considered the 

comments on this issue particularly in 

light of the HIPAA Privacy Rule, and 

has determined that employers should 

be allowed to directly contact the 

employee’s health care provider for the 

purposes of authenticating and 

clarifying the medical certification. 

Accordingly, proposed § 825.307(a) 

eliminates the requirement that the 

employer’s health care provider, as 

opposed to the employer itself, make the 

contact to an employee’s health care 

provider. The Department believes that 

this change would significantly address 

the unnecessary administrative burdens 

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the current requirement creates and, in 

light of the protections provided by the 

HIPAA Privacy Rule, will not 

significantly impact employee privacy. 

The Department notes again, however, 

that such contact by the employer may 

only take place after the employee has 

been afforded the opportunity to cure 

any deficiencies with the certification. 

Current § 825.307(a)(1), which 

addresses rules governing access to 

medical information when a workers’

compensation absence also is at issue, 

has been moved to proposed § 825.306 

because that section also addresses what 

medical information an employer can 

obtain in connection with an FMLA 

absence. 

Current § 825.307(a)(2) and (b) cover 

the requirements an employer must 

meet when obtaining a second opinion. 

The existing language of current 

§ 825.307(a)(2) and (b) has been 

incorporated into proposed § 825.307(b), 

titled ‘‘[s]econd opinion’’. Employers 

expressed significant frustration with 

the second and third opinion process in 

responding to the RFI— and questioned 

its utility. Specifically, several 

employers commented on the expense 

involved in the second and third 

opinion process. See, e.g., Honda 

(‘‘Based upon Honda’s experience, 

second and third opinions average over 

$700 per second or third opinion, and 

cost the employees their time.’’); Yellow 

Book USA (asserting that second 

opinions are so expensive they are not 

used). Other commenters noted 

practical concerns regarding finding 

physicians to perform second opinions. 

See, e.g., United States Postal Service 

(‘‘We are experiencing increasing 

difficulty finding physicians who will 

perform a second opinion medical 

exam.’’); FNG Human Resources 

(‘‘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.’’). The Department notes that 

the statute itself mandates the second 

and third opinion process, including 

that the employer cannot use a health 

care provider it regularly employs to 

render the second opinion, and that the 

employer bears the costs of the second 

and third opinions. 29 U.S.C. 2613(c), 

(d). Thus, the Department has 

determined that it is not appropriate to 

change the current regulation. In order 

to increase the utility of the second and 

third opinion process, however, the 

Department proposes to add language to 

§ 825.307(b)(1) and (c) requiring the 

employee (or family member) to 

authorize the release of relevant medical 

information regarding the condition for 

which leave is sought from the 

employee’s (or family member’s) health 

care provider to the second or third 

opinion provider. 

The final issue in § 825.307 that 

garnered significant comments and an 

issue which the Department is hearing 

about more is the requirement in current 

§ 825.307(f) that under certain 

circumstances, the employer shall 

accept the medical certification and 

second and third opinions from a 

foreign health care provider. In response 

to the RFI, several commenters stated 

that this requirement has caused 

numerous problems. See, e.g., Spencer, 

Fane, Britt & Browne LLP (‘‘First, 

employers have no idea whether the 

health care provider has training and 

credentials equivalent to U.S.-licensed 

health care providers. Second, it is 

difficult to verify that the foreign health 

care provider even completed the form. 

* * * Third, obtaining a second and 

third opinion is next to impossible 

* * * .’’); U.S. Chamber of Commerce 

(‘‘These companies have had to obtain 

the services of translators and health 

care providers with foreign language 

skills to discuss the certification with 

foreign doctors.’’); Fairfax County Public 

Schools (‘‘Approximately 20% of the 

FCPS FMLA requests are for leave for 

immediate family members who live 

outside the U.S. and have received 

medical diagnoses from individuals of 

unclear medical qualifications.’’). 

Commenters suggested that there should 

be additional requirements for 

certifications for foreign health care 

providers. See, e.g., Spencer, Fane, Britt 

& Browne LLP; U.S. Chamber of 

Commerce; Fry’s Electronics, Inc. At the 

present time, the substance of 

§ 825.307(f) remains unchanged. 

Nevertheless, the Department seeks 

further public comment about what 

specific changes would allow for better 

authentication in this area. 

In order to assist individuals referring 

to the regulations on second and third 

opinions, proposed changes have been 

made to add titles to each paragraph in 

this section. Paragraph (c) is now titled, 

‘‘[t]hird opinion,’’ paragraph (d) is 

titled, ‘‘[c]opies of opinions,’’ paragraph 

(e) is titled ‘‘[t]ravel expenses,’’ and 

paragraph (f) is titled, ‘‘[m]edical 

certification abroad.’’ The timeframe for 

employers to provide employees with 

copies of second and third medical 

opinions upon the employees’ request 

under paragraph (d) is proposed to be 

extended from two to five business 

days, to be uniform with other similar 

timeframes. 

Section 825.308 (Recertifications) 

Current § 825.308 specifies when an 

employer may request subsequent 

recertifications of medical conditions. In 

cases of pregnancy, chronic, or 

permanent/long-term conditions, 

recertifications may be requested no 

more often than every 30 days (and only 

in connection with an absence) unless 

circumstances described in the initial 

certification have changed significantly, 

or the employer receives information to 

cast doubt on the employee’s stated 

reason for the absence. If the time 

period specified by the health care 

provider for the duration of the 

incapacity or its treatment is longer than 

30 days, an employer may not request 

recertification until the minimum 

duration has passed, unless the 

employee requests an extension of 

leave, circumstances have changed 

significantly, or an employer has 

received information that casts doubt on 

the validity of the certification. This 

same rule applies to intermittent leaves 

of absence. If no time period is specified 

and the condition is other than 

pregnancy, chronic, or long-term or 

permanent, an employer can request 

recertification every 30 days or more 

frequently if the employee requests an 

extension of leave, circumstances have 

changed significantly, or an employer 

has received information that casts 

doubt on the validity of the certification. 

The Department proposes to restructure § 825.308 for the sake of 

clarity. Proposed paragraphs (a), (b), and 

(c) now clearly apply to all medical 

conditions and work in conjunction 

with each other. Paragraph (a), titled 

‘‘30-day rule,’’ merely states a general 

rule that an employer may request 

recertification no more often than every 

30 days and only in connection with the 

absence of the employee. This rule is 

subject to the more specific occurrences 

described in paragraphs (b) and (c). 

Paragraph (b), titled ‘‘[m]ore than 30 

days,’’ explains, consistent with the 

existing regulation, that if a minimum 

duration for the period of incapacity is 

specified, the employer may not request 

recertification until that time period has 

expired, but adds that in all cases, 

recertifications may be requested every 

six months. An example has been 

provided to give further guidance on 

this issue. This proposal addresses 

situations where a certification is 

provided that states an employee may 

be incapacitated and in need of 

intermittent leave for an extended 

period. There is confusion under the 

existing requirements as to whether an 

employer would be able to obtain 

recertification in a given year absent a 

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significant change in circumstance or a 

reason that casts doubt on the validity 

of the absence where the certification 

indicates that the duration of the 

condition is ‘‘lifetime.’’ Conversely, 

under current law, where an employee 

has a chronic condition certified to last 

an ‘‘indefinite’’ period of time, that 

certification may be treated as having no 

durational timeframe and the employer 

may require a recertification every 30 

days in connection with an absence. See 

Wage and Hour Opinion Letter 

FMLA2004–2–A (May 25, 2004). 

In response to the RFI, some 

employers argued that recertification 

should be permitted every 30 days even 

where the certification indicates that the 

condition will last for an extended 

duration. See, e.g., University of 

Minnesota (‘‘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 (‘‘A remedy to this 

manipulation or gaming of the medical 

recertification restriction pertaining to 

intermittent/reduced work schedule 

leaves is to allow employers to request 

recertification every 30 days, regardless 

if the duration indicated in the initial 

medical certification is greater than 30 

days.’’) (emphasis in original); United 

Parcel Service, Inc. (‘‘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.’’). Employees and 

their representatives, however, 

commented that frequent recertifcations 

are burdensome for employees. See, e.g., 

International Association of Machinists 

and Aerospace Workers (‘‘[O]ur 

members find that the requirement to 

recertify every 30 days is incredibly 

burdensome. * * * [I]t is very 

expensive for employees to get recertifications. Some employees, 

particularly in rural areas, have to travel 

long distances to even see their doctor. 

It is ironic that often these employees 

actually have to miss more work time 

just to get the recertification.’’); An 

Employee Comment (‘‘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 (‘‘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.’’). The 

American Academy of Family 

Physicians also objected to allowing 

recertifications every 30 days for 

conditions that are medically stable: 

‘‘This is a burden to physicians who 

must 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.’’ See also Mark 

Blick DO, Rene Darveaux MD, Eric 

Reiner MD, Susan R. Manuel PA-C 

(‘‘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.’’); An Employee 

Comment (‘‘[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.’’). 

Taking all of the comments into 

consideration, the Department believes 

that it would be reasonable for 

employers to obtain recertifications 

every six months in circumstances in 

which the certification indicates that the 

condition will last for an extended 

period of time. An extended period of 

time includes not only specific months 

or years (e.g., one year) but certified 

durations of ‘‘indefinite,’’ ‘‘unknown,’’

or ‘‘lifetime.’’ This is a change in the 

law from the current construction as 

explained above and expounded in 

Wage and Hour Opinion Letter 

FMLA2004–2–A (May 25, 2004). The 

Department feels six months is a 

reasonable timeframe for permitting 

recertification of such conditions but 

requests comments on this proposal. 

This is also consistent with the 

Department’s proposal in § 825.115(c) 

that ‘‘periodic’’ visits to a health care 

provider for a chronic serious health 

condition is defined as at least twice per 

year. 

Proposed paragraph (c) of this section 

explains, with some modifications to 

the current rule, what circumstances 

must exist to request medical 

recertification in less than 30 days and 

is now titled ‘‘[l]ess than 30 days.’’ The 

proposed paragraph explains that 

recertification may be requested in less 

than 30 days if the employee requests an 

extension of leave, the circumstances 

have changed significantly based on the 

duration or frequency of the absence or 

the nature or severity of the illness, or 

if the employer receives information 

that casts doubt upon the employee’s 

stated reason for the absence or the 

continuing validity of the certification. 

The remaining provisions of the existing 

regulation have been incorporated 

without any substantive changes. 

However, examples have been added to 

illustrate what constitutes a change in 

circumstances or information that 

would ‘‘cast doubt.’’ See also Wage and 

Hour Opinion Letter FMLA2004–2–A 

(May 25, 2004) (noting that a pattern of 

Friday/Monday absences would permit 

an employer to request recertification in 

less than 30 days provided that there 

was no evidence of a medical basis for 

the timing of the absences). 

No changes have been proposed to 

paragraph (d) from the current 

regulations except it is titled, 

‘‘[t]iming.’’

A new paragraph (e) has been 

proposed, titled ‘‘[c]ontent,’’ that 

confirms an employer may ask for the 

same information when obtaining 

recertification as that permitted for the 

original certification as set forth in 

current § 825.306. In addition, 

consistent with Wage and Hour Opinion 

Letter FMLA2004–2–A (May 25, 2004), 

the proposed regulation states that as 

part of the information allowed to be 

obtained on recertification, the 

employer may provide the health care 

provider with a record of the employee’s 

absence pattern and ask the health care 

provider if the serious health condition 

and need for leave is consistent with 

such a pattern. 

Proposed paragraph (f) sets forth 

without change the requirements of 

current § 825.308(e) that the employee is 

responsible for the costs associated with 

the recertification and that no second or 

third opinion may be required. The 

Department notes that several 

employers responding to the RFI 

requested that the Department allow 

second and third opinions on 

recertifications. See, e.g., United States 

Postal Service (‘‘[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 Transport Association of America, 

Inc. and Airline Industrial Relations 

Conference (‘‘Second and third opinions 

should also be available to employers on 

a medical recertification.’’). The 

National Partnership for Women & 

Families, however, argued that the fact 

that the statute only refers to second and 

third opinions on initial certifications 

supports the current regulatory 

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prohibition on second and third 

opinions on recertification. However, 

both Honda and the AFL-CIO noted that 

employers are already permitted to 

reinitiate the certification process on an 

annual basis, which offers the employer 

the opportunity to seek a second 

opinion annually. See supra discussion 

of proposed § 825.305(e). The 

Department believes that allowing 

employers to request a new medical 

certification on an annual basis (and a 

second and third opinion, if 

appropriate) allows employers sufficient 

opportunity to verify the serious health 

condition. Accordingly, the Department 

has retained the regulatory prohibition 

on second and third opinions on 

recertification, but seeks comment about 

this in light of the restructuring of 

§ 825.308. 

Section 825.310 (Fitness-for-duty 

certification) 

Current § 825.310 explains when an 

employer may require an employee to 

provide a fitness-for-duty certification. 

Current paragraph (a) of this section 

explains that employers may have a 

uniformly applied policy or practice 

that requires similarly situated 

employees who take leave to provide a 

certification that they are able to resume 

work. The Department proposes to add 

a sentence to paragraph (a) clarifying 

that employees have the same obligation 

to provide a complete certification or 

provide sufficient authorization to the 

health care provider to provide the 

information directly to the employer at 

the fitness-for-duty stage as they do in 

the initial certification stage. 

No changes have been proposed to 

paragraph (b), which explains that if 

State or local law or the terms of a 

collective bargaining agreement govern 

an employee’s return to work, those 

provisions apply, and that the ADA 

requires that any return-to-work 

physical be job-related and consistent 

with business necessity. The court in 

Harrell v. USPS, 445 F.3d 913, 926–27 

(7th Cir.), cert. denied, 127 S. Ct. 845 

(2006), deferred to this regulation, 

holding that it reasonably implements 

the statute and is consistent with the 

legislative history by providing that a 

collective bargaining agreement ‘‘may 

impose more stringent return-to-work 

requirements on the employee than 

those set forth in the statute.’’

Current paragraph (c) of this section 

explains the procedures for obtaining a 

fitness-for-duty certification and states 

that an employer may seek certification 

only with regard to the condition that 

caused the employee’s need for leave. 

The existing regulation provides that the 

certification itself need only be a simple 

statement of ability to return to work. It 

also provides that a health care provider 

employed by the employer can contact 

the employee’s health care provider 

with the employee’s permission for 

purposes of clarifying the employee’s 

fitness to return to work, that no 

additional information may be acquired, 

and that the employee’s reinstatement 

may not be delayed while contact with 

the health provider is made. A number 

of commenters responding to the RFI 

addressed the ‘‘simple statement’’ rule. 

Some employers noted that particular 

safety concerns inherent in their 

workplaces necessitated that they obtain 

clear information regarding an 

employee’s ability to safely return from 

leave. For example, Union Pacific 

Railroad Company noted that clear 

information regarding its employees’

ability to work is critical as ‘‘those very 

employees are entrusted with jobs that 

affect the safety and security of the 

general public.’’ The Association of 

American Railroads also stated that 

‘‘returning an employee to work is not 

a ‘simple’ process in cases where the 

employee performs a safety sensitive 

job.’’ Therefore, it recommended that 

the Department should ‘‘define a return 

to work ‘certification’ in such a way as 

to allow employers to require a detailed 

certification similar to what is required 

when an employee first requests FMLA 

leave.’’ Similarly, the Maine Pulp & 

Paper Association stated: 

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. 

Jackson Lewis LLP stated that the 

‘‘simple statement’’ provision allows 

employees to present ‘‘cursory and 

conclusory notes asserting, without any 

factual explanation, that they are 

‘cleared to return to work without 

restrictions.’ Employers must ignore 

facts suggesting employees are not 

qualified to perform their jobs or might 

pose a direct threat of harm to 

themselves or others.’’ The National 

Coalition To Protect Family Leave also 

noted that ‘‘the inability of an employer 

to obtain more than a ‘statement’ that 

the employee can return to work, and 

lack of opportunity to challenge such a 

statement, creates risk for everyone 

involved.’’ The Coalition and a number 

of other commenters stated that the 

return to work process under the FMLA 

conflicts 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. 

In contrast, as explained in more 

detail with regard to paragraph (g) of 

this section, several commenters 

representing employees, including the 

National Partnership for Women & 

Families, cautioned that altering the 

fitness for duty certification procedures 

under the FMLA would place an 

‘‘unwarranted burden’’ on employees. 

The proposed regulation retains the 

basic fitness-for-duty certification 

procedures, but states that for purposes 

of authenticating and clarifying the 

fitness-for-duty statement, the employer 

may contact the employee’s health care 

provider consistent with the procedures 

set forth in § 825.307 above. The 

proposal also replaces the requirement 

that the certification must only be a 

‘‘simple statement’’ with the statutory 

language that the employee must obtain 

a certification from his or her health 

care provider that the employee is able 

to resume work. The employer may 

provide the employee with a list of the 

employee’s essential job duties together 

with the eligibility notice, in which (as 

provided for in proposed 

§ 825.300(b)(3)(v)) the employer advises 

the employee of the necessity for a 

fitness-for-duty certification. If the 

employer provides such a list of 

essential functions, it may require the 

employee’s health care provider to 

certify that the employee can perform 

them. When providing a fitness-for-duty 

certification, the health care provider 

therefore must assess the employee’s 

ability to return to work against these 

identified essential functions. However, 

if the employer wants the health care 

provider to consider a list of essential 

functions, it must provide them with the 

eligibility notice; providing the list at a 

later date could force the employee to 

make an extra visit to the health care 

provider or to incur extra expense or 

delay. The statement in the current 

regulations that no additional 

information may be acquired has been 

deleted, as the process of clarifying the 

fitness-for-duty certification may result 

in the employer obtaining additional 

information not initially provided on 

the fitness-for-duty certification. But the 

employer may not request or require 

additional information in a certification 

to establish fitness-for-duty than is 

specified under these regulations. 

The Department also requests further 

input concerning the appropriate level 

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of information that may be obtained and 

the process that employers may follow 

in connection with a fitness-for-duty 

certification. This includes, but is not 

limited to, whether additional 

information or procedures (such as a 

second and third opinion process) 

should be permitted where an employer 

has reason to doubt the validity of the 

fitness-for-duty certification. Although 

the Department did not ask specific 

questions regarding these topics in the 

RFI, some commenters did address 

them. For example, the Association of 

Corporate Counsel suggested that 

employers should be permitted to 

require an employee returning from 

FMLA leave to undergo a return to work 

physical conducted by the employer’s 

physician, so long as the employer 

regularly requires such a physical for all 

employees returning to work. The Ohio 

Department of Administrative Services 

and the National Council of Chain 

Restaurants stated that employers 

should be allowed to get a second 

opinion on a return to work certification 

when they have reason to doubt the 

validity of the release. Briggs & Stratton 

Corporation similarly suggested that an 

employer should be permitted, ‘‘at its 

expense, to require verification of the 

treating health care providers’ return to 

work certification,’’ arguing that the 

current prohibition impedes an 

employer’s ability to fulfill its OSHA 

obligation to provide a safe work place. 

The National Coalition To Protect 

Family Leave also stated that the 

prohibition on second and third 

opinions on fitness for duty 

certifications is ‘‘problematic from a 

safety perspective’’ and conflicts with 

the ADA process. Therefore, it suggested 

that employers should be able to 

challenge a certification obtained from 

an employee’s health care provider and 

‘‘to delay the employee’s return to work 

pending receipt of a second opinion if 

the employer has a reasonable basis to 

believe that the employee may not be 

able to safely return to work and 

perform all the essential functions of the 

job.’’ The Department is proposing no 

changes in this area, but requests further 

comments on these issues. 

The Department proposes no changes 

to current paragraph (d) of this section, 

which explains who bears the cost of 

the fitness-for-duty certification. Under 

both the current and proposed 

regulations, the employee is responsible 

for the cost of obtaining a fitness-forduty certification. 

Current paragraph (e) of this section 

explains that advance notice of the need 

to provide a fitness-for-duty certification 

must be given when an employee goes 

out on leave. It also requires that if an 

employer has a handbook, the employer 

should include its general policy with 

regard to fitness-for-duty certifications. 

The current regulations further provide 

that no second or third opinions on 

fitness-for-duty certifications may be 

required. The Department proposes to 

modify this section by specifying that 

the notice of the fitness-for-duty 

certification requirement is to be 

provided in the eligibility notice set 

forth in proposed § 825.300(b). 

Current paragraph (f) of this section 

provides that an employer may delay 

restoration to employment until an 

employee submits a required fitness-forduty certification unless the employer 

has failed to provide the notice required 

by paragraph (e). This language has been 

retained in the proposed regulations. 

The Department proposes, however, to 

add language, consistent with current 

§ 825.311(c), to make clear that the 

employee is not entitled to the 

reinstatement protections of the Act if 

he or she does not provide such a 

requested certification or request 

additional FMLA leave. 

Current § 825.310(g) provides that an 

employer cannot obtain a fitness-forduty certification when an employee 

returns from an intermittent leave 

absence. Numerous commenters 

responding to the request for 

information addressed this provision. 

The employer comments indicate that 

the primary purpose of requiring a 

fitness-for-duty certification is to make 

sure the employee is able to resume 

work safely without harming the 

employee, co-workers, or the public. 

When leave is taken intermittently, 

employers state that they may need to 

determine whether the employee is fit 

for duty when safety concerns are at 

issue, the same as when an employee 

returns from a block of leave. For 

example, the United States Postal 

Service stated: 

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. 

Honda similarly stated that, ‘‘[i]n 

manufacturing, many of the jobs include 

safety-sensitive duties. Therefore, the 

current regulation prohibiting a fitnessfor-duty form for intermittent leaves 

puts the employee and his/her coworkers at risk and requires the 

employer to assume a legal risk for 

liability, if there is an accident caused 

by the reinstated employee.’’ Therefore, 

Honda suggested that employers should 

be permitted to require a fitness-for-duty 

form for employees returning from 

intermittent leave, but only ‘‘when it is 

consistent with the employer’s 

‘uniformly-applied policy or practice’

applicable to all similarly-situated 

employees [the general standard for 

fitness-for-duty certifications in 

§ 825.310(a)].’’ The City of New York 

commented that ‘‘Fitness for Duty 

Certifications for employees in safetysensitive 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.’’ Dallas 

Area Rapid Transit similarly stated that 

allowing employers ‘‘to request a 

Fitness for Duty certification [for 

employees returning from intermittent 

leave] would protect the safety of both 

the employee and the public, and 

support the employer’s efforts and 

regulatory requirement to provide a safe 

workplace, while also providing a safe 

efficient service to its customers.’’ Such 

employers suggested that the FMLA 

return to work process undercuts 

legitimate employer safety programs. 

Therefore, numerous commenters, 

including Willcox & Savage, Foley & 

Lardner LLP, the National Retail 

Federation, the National Council of 

Chain Restaurants, and the National 

Coalition to Protect Family Leave, 

suggested that 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 as they do for block leave. 

Hinshaw & Culbertson LLP suggested 

that fitness-for-duty certifications 

‘‘could be regulated to prevent abuse by 

the employer by limiting such 

statements to certain time frames, such 

as once a quarter. It could also be based 

on the frequency of the intermittent 

leave; the more frequent the leave, the 

more frequent the statement.’’

However, numerous commenters 

representing employees vigorously 

supported the existing regulation. The 

National Partnership for Women & 

Families commented that requiring 

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employees returning from intermittent 

leave to provide fitness for duty 

certifications—which are at the 

employee’s expense—would 

significantly undermine the statutory 

purpose behind allowing employees to 

take intermittent leave. It stated that 

‘‘[a]ny benefit to the employer of 

obtaining fitness for duty statements 

from intermittent leave-takers 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 

earning a paycheck while addressing 

serious health or family needs, and 

allows employees to preserve as much 

of the twelve weeks of leave as 

possible.’’ The American Federation of 

Teachers, Local 2026, stated that 

‘‘[t]here is no reason to disturb the 

current rule barring employers from 

requesting fitness for duty statements 

from workers who take intermittent 

leave.’’ The AFL–CIO noted that 

‘‘[r]equiring employees who take 

intermittent leave to present fitness for 

duty certifications for potentially every 

absence is burdensome and 

unnecessary.’’ The Pennsylvania Social 

Services Union, SEIU 668, concurred, 

stating that there is no reason to disturb 

the current rule. Kennedy Reeve & Knoll 

commented that ‘‘the logistical 

impossibility and financial burdens of 

allowing employers to require fitnessfor-duty statements for each and every 

day of absence make such a policy not 

feasible.’’ The National Business Group 

on Health also stated that ‘‘[i]t 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.’’ The 

Indiana State Personnel Department, 

Employee Relations Division, also 

recognized that the burden of providing 

fitness for duty certifications after every 

intermittent absence would be 

significant for employees and health 

care providers, but beneficial to 

employers. In an attempt to address the 

cost concern, the United Parcel Service 

suggested that employers bear the cost 

of fitness for duty certifications when 

the employee is returning from 

intermittent leave. 

The Department believes, as the 

comments from employee 

representatives assert, that it would be 

unduly burdensome on employees to 

have to provide a fitness-for-duty 

certificate for each intermittent leave 

absence. However, the numerous 

employer comments addressing the 

significant safety risks that can exist 

when some employees return from 

intermittent leave absences indicate that 

the current regulation does not 

appropriately address those concerns. 

Therefore, the Department proposes that 

an employer be permitted to require an 

employee to furnish a fitness-for-duty 

certificate every 30 days if an employee 

has used intermittent leave during that 

period and reasonable safety concerns 

exist. For example, if an employee is out 

periodically for high blood pressure, 

and the employee operates heavy 

equipment as part of the employee’s 

essential functions, an employer may 

have reason to get certification that the 

employee can perform the essential 

functions of the job. The employer may 

not terminate the employment of the 

employee while awaiting such a 

certification of fitness for duty for an 

intermittent or reduced schedule leave 

absence. The Department is cognizant of 

the potential burdens on employees 

who may need to provide both a 

recertification and a fitness-for-duty 

certificate within a short period of time. 

The Department specifically seeks 

comment on ways to minimize this 

burden and asks whether this proposal 

strikes the appropriate balance. 

Current paragraph (h) of this section 

would be deleted to avoid redundancy. 

This paragraph, which provides an 

explanation as to the repayment of 

health insurance premiums if the 

employee is unable to return to work as 

a result of a continuation of a serious 

health condition, is duplicative of the 

provisions set forth in § 825.213. The 

last sentence of current § 825.310(h), 

which explains who bears the cost of 

the certification in such circumstances, 

is moved to proposed § 825.213(a)(3). 

Section 825.311 (Failure to provide 

medical certification) 

Current § 825.311(a) provides that, in 

the case of foreseeable leave, if an 

employee fails to provide medical 

certification in a timely manner, the 

employer may delay the taking of FMLA 

leave until it has been provided. In 

response to the RFI, Foley & Lardner 

LLP noted that the regulation ‘‘does not 

explain how long the delay may last or 

what the consequences of a ’delay’ can 

be.’’ The Department agrees and 

proposes to explain more clearly the 

implications of an employee’s failure to 

provide the medical certification in a 

timely manner. Currently, the regulation 

states that an employer may ‘‘delay the 

taking of FMLA leave.’’ If the employee 

takes leave without timely providing a 

sufficient medical certification for 

foreseeable leave, then any leave during 

the time period that the certification 

was ‘‘delayed’’ is not FMLA-protected. 

To make sure both employees and 

employers understand the intended 

meaning of this provision, the 

Department proposes to amend the 

wording to state that the employer may 

‘‘deny FMLA coverage’’ for the period at 

issue. This proposed language ensures 

that there is no misunderstanding as to 

the impact of the ultimate failure to 

provide a medical certification in a 

timely manner, but substantively this is 

not a change from the current 

regulation. See current § 825.312(b) (‘‘If 

the employee never produces the 

certification, the leave is not FMLA 

leave.’’); see also Sherman & Howard 

LLC (‘‘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.’’). Proposed paragraph (a) is 

titled ‘‘[f]oreseeable leave.’’ Current 

§ 825.311(b) contains similar language 

to current paragraph (a) with regard to 

unforeseeable leave. The Department 

proposes language similar to that 

proposed in paragraph (a), to be titled 

‘‘[u]nforeseeable leave,’’ in proposed 

§ 825.311(b). Section 825.311(b) is 

proposed to be reworded for purposes of 

clarity, but no other substantive changes 

have been made. The Department 

proposes a new paragraph (c), to be 

titled ‘‘[r]ecertification,’’ that addresses 

the consequences of failing to provide a 

timely recertification when requested by 

the employer. The proposed regulations 

provide that if a recertification is not 

provided within 15 days of the request, 

or as soon as practicable, the employer 

may deny the continuation of the FMLA 

leave protections until the 

recertification is provided. Former 

paragraph (c) is moved to proposed 

paragraph (d) but no changes have been 

made in the requirement to provide 

medical certification that an employee 

is fit for duty and able to return to work 

when seeking reinstatement following 

FMLA leave for a serious health 

condition. 

Section 825.312 (When can an employer 

refuse reinstatement) 

Current § 825.312(a) through (f) 

address when an employer can delay or 

deny FMLA leave to an employee, or 

deny reinstatement after FMLA leave, 

when an employee fails to timely 

provide the required notifications and 

certifications set forth in the regulations. 

As these sections are duplicative of 

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other regulatory sections, they have 

been deleted from the proposed rule. 

Current paragraphs (g) and (h) of 

§ 825.312, which address the fraudulent 

use of leave and outside employment, 

have been renumbered as § 825.216(d) 

and (e), which also deal with limitations 

on reinstatement, but no substantive 

changes have been made. 

Sections 825.400 through 825.600 

No changes are proposed in 

§§ 825.400 through 825.600 other than 

to the titles of the sections and very 

minor editorial changes (adding a 

reference to the Department’s website in 

proposed § 825.401(a), updating the 

reference in proposed § 825.500(c)(4) to 

the new employer eligibility notice 

requirement proposed in § 825.300(b), 

and deleting a cross-reference in 

proposed section 825.601(b)). 

Subpart G—Effect of Other Laws, 

Employer Practices, and Collective 

Bargaining Agreements on Employee 

Rights Under FMLA 

Section 825.700 (Interaction with 

employer’s policies) 

Current § 825.700(a) provides that an 

employer may not diminish the rights 

established by the FMLA through an 

employment benefit program or plan, 

but that an employer may provide 

greater leave rights than the FMLA 

requires. As noted previously, the U.S. 

Supreme Court in Ragsdale invalidated 

the last sentence of current § 825.700(a), 

which states that 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. 

A number of commenters responding 

to the RFI addressed the effect of 

Ragsdale. For example, the National 

Coalition to Protect Family Leave stated 

that § 825.700(a) should be removed 

from the regulations. The Air Transport 

Association of America, Inc. and the 

Airline Industrial Relations Conference 

suggested that the regulations should 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. The Association of Corporate 

Counsel similarly suggested that 

§ 825.700(a) should be deleted to clarify 

that an employer’s failure to timely 

designate leave does not increase the 

statutory leave period. Hewitt 

Associates LLC commented that ‘‘by 

deleting the ‘penalty’ provision and 

simply reinforcing employer 

notification obligations,’’ the 

Department would appropriately 

respond to Ragsdale. The National 

Partnership for Women & Families 

stated 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’’ (emphasis in original). (Related 

comments from both employer and 

employee representatives addressing 

possible changes to the notice and 

designation of leave requirements are 

addressed in the preamble discussing 

changes to § 825.208.) 

In light of these comments, the 

Department proposes to delete the last 

sentence from paragraph (a) of this 

section struck down by Ragsdale. Other 

than this change required by the Court’s 

decision, the Department proposes no 

changes to current paragraph (a). 

The Department proposes no changes 

to current § 825.700(b), which provides 

that an employer may amend existing 

leave programs, so long as they comply 

with the FMLA, and that nothing in the 

Act is intended to discourage employers 

from adopting or retaining more 

generous leave policies. 

The Department proposes to delete 

§ 825.700(c)(1) and (2) from the current 

regulations, as they discuss the initial 

applicability of the statute and periods 

of employment prior to the statute’s 

effective date, which are no longer 

necessary. 

Section 825.702 (Interaction with 

Federal and State anti-discrimination 

laws) 

Current § 825.702 addresses the 

interaction between the FMLA and 

other Federal and State antidiscrimination laws. Current paragraph 

(a) confirms that the FMLA and other 

Federal or State laws are wholly distinct 

and must be complied with 

independently. Paragraphs (b), (c), (d) 

and (e) primarily focus on the 

interaction between the FMLA and the 

Americans with Disabilities Act (ADA), 

particularly with regard to leave rights, 

job modification, light duty, 

reassignment, and reinstatement. 

Paragraph (f) focuses on the interaction 

of the FMLA with Title VII of the Civil 

Rights Act of 1964, as amended by the 

Pregnancy Discrimination Act, and 

paragraph (g) states that the U.S. Equal 

Employment Opportunity Commission 

can provide further information on Title 

VII and the ADA. 

The Department proposes to add a 

new paragraph (g) in this section. 

Existing paragraph (g) would become 

proposed paragraph (h) in this section. 

Proposed paragraph (g) incorporates a 

discussion of the interaction between 

the Uniformed Services Employment 

and Reemployment Rights Act of 1994 

(USERRA) and the FMLA. The current 

regulations contain no such reference, 

and the interaction between these two 

laws has been confusing to employees 

and employers alike. On July 22, 2002, 

the Department issued guidance stating 

that, based upon the reinstatement 

rights provided by USERRA, an 

employee is entitled to credit for FMLA 

eligibility purposes for the months and 

hours that the employee would have 

worked during the 12 months preceding 

the start of the leave but for his or her 

qualifying active duty uniformed 

service. See http://www.dol.gov/vets/ 

media/fmlarights.pdf. This guidance has 

been incorporated into paragraph (g) of 

the proposed regulations. The only 

other change the Department is 

proposing is to conform the crossreference in paragraph (d)(2) to the 

proper paragraph in proposed § 825.207. 

The Department received numerous 

comments in response to the RFI that 

discussed the relationship between the 

FMLA and the ADA. Many of those 

comments were discussed in Chapter 

VII of the Department’s 2007 Report on 

the RFI comments (see 72 FR at 35599), 

and other sections of this preamble 

address comments that are relevant to 

those sections (see, e.g., §§ 825.306–

.307). The Department also received 

comments regarding the interaction 

between the FMLA and the ADA that 

are relevant to the job modification, 

light duty, and reassignment issues 

addressed in this section. 

A number of organizations 

commented on the differences between 

the FMLA’s and ADA’s treatment of 

light duty work. Sections 825.702(d)(2) 

and 825.220(d) of the FMLA regulations 

provide that an employee may 

voluntarily accept a ‘‘light duty’’

assignment while recovering from a 

serious health condition, but cannot be 

coerced to do so. 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 

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hardship. See EEOC, Workers’

Compensation Guidance, at Question 

27. 

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 permits an employer to 

temporarily transfer an employee who 

needs foreseeable intermittent or 

reduced schedule leave for planned 

medical treatment to an alternative 

position; however, the position must 

have equivalent pay and benefits. The 

position also must be one for which the 

employee is qualified and which better 

accommodates recurring periods of 

leave. Under the ADA, part-time work 

or occasional time-off may be a 

reasonable accommodation. As a general 

matter, reassignment is the 

accommodation of last resort under the 

ADA. However, if or when an 

employee’s need for part-time 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 a vacant 

position at a lower level. Further 

accommodation is not required if a 

lower level position is also unavailable. 

See 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 13. Under the ADA, 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. 

Commenters also focused on the 

differences between the FMLA and the 

ADA with regard to the use of leave. 

Under current § 825.115, an eligible 

employee may use leave ‘‘where the 

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.’’ 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–

.205. Under the ADA, an employee is 

entitled to reasonable accommodation, 

including medical leave, only if he or 

she has an impairment that 

‘‘substantially limits’’ one or more major 

life activities. Moreover, an employer is 

not required to provide any 

accommodation that would pose an 

‘‘undue hardship’’ on the operation of 

the employer’s business. Neither the 

FMLA regulations nor the statute limits 

the availability of FMLA leave to 

situations where the employee’s absence 

does not impose an ‘‘undue hardship’’

on the employer. 

Although the Department received 

many comments seeking greater 

consistency between the FMLA and the 

ADA, the Department can do nothing to 

alter the fact that the two statutes serve 

distinctly different purposes, provide 

different rights, and have different 

eligibility criteria. Moreover, the FMLA 

legislative history clearly states that the 

‘‘purpose of the FMLA is to make leave 

available to eligible employees and 

employers within its coverage, and not 

to limit already existing rights and 

protection,’’ and it specifically 

recognizes that ‘‘the leave provisions of 

the [FMLA] are wholly distinct from the 

reasonable accommodation obligations 

of employers covered under the [ADA].’’

S. Rep. No. 103–3, at 38 (1993). 

Therefore, the Department proposes no 

changes to this section (other than the 

addition of a new section addressing 

USERRA and the changed internal 

cross-reference, as described 

previously). However, the Department 

believes that both employees and 

employers would benefit from a better 

understanding of the interaction 

between the ADA and FMLA, and 

provides the following additional 

description of that interaction. 

Although the FMLA adopts the ADA 

definition of ‘‘essential functions,’’ 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. 42 U.S.C. 12102(2). 

Some FMLA ‘‘serious health 

conditions’’ may be ADA disabilities, 

for example, most cancers and serious 

strokes and some chronic conditions. 

Other ‘‘serious health conditions’’ may 

not be ADA disabilities, for example, 

pregnancy or a routine broken leg or 

hernia. This is because the condition is 

not an impairment (e.g., normal 

pregnancy), or because the impairment 

is not substantially limiting (e.g., a 

routine broken leg or hernia). See EEOC 

FMLA and ADA Fact Sheet, at Question 

9. 

Under the ADA, an employer is 

required to make a reasonable 

accommodation to the known physical 

or mental limitations of an otherwise 

qualified employee with a disability if it 

would not impose an ‘‘undue hardship’’

on the operation of the employer’s 

business. Undue hardship is defined as 

an action requiring significant difficulty 

or expense when considered in light of 

factors such as an employer’s size, 

financial resources, and the nature and 

structure of its operation. Reasonable 

accommodation may include adapting 

existing facilities, job restructuring, 

modifying work schedules, acquiring or 

modifying equipment or devices, or 

adjusting or modifying policies. 

Reasonable accommodation can include 

reassignment to a vacant equivalent 

position, if available, or to a lesser 

position if an equivalent one is 

unavailable or causes undue hardship. 

An employer must provide an effective 

reasonable accommodation that does 

not pose an undue hardship, but need 

not provide the employee’s preferred 

accommodation. 

Generally, an individual with a 

disability (or his or her representative) 

must notify the employer of a request 

for reasonable accommodation. An 

individual may use ‘‘plain English’’ and 

the request need not be in writing or 

mention the ADA or the phrase 

‘‘reasonable accommodation.’’ Instead, 

an individual must let the employer 

know that he or she needs an 

adjustment or change at work for a 

reason related to a medical condition. 

After receiving a request for reasonable 

accommodation, an employer and the 

individual with a disability should 

engage in an informal, ‘‘interactive 

process’’ to clarify what the individual 

needs and identify the appropriate 

reasonable accommodation. See 29 CFR 

pt. 1630 app. § 1630.9. As part of this 

‘‘interactive process,’’ the employer may 

ask the individual relevant questions 

that will enable it to make an informed 

decision about the request. This 

includes asking what type of reasonable 

accommodation is needed. When the 

disability and/or the need for 

accommodation is not obvious, the 

employer may ask the individual for 

reasonable documentation about his or 

her disability and functional limitations. 

See ‘‘EEOC Enforcement Guidance: 

Reasonable Accommodation and Undue 

Hardship Under the Americans with 

Disabilities Act,’’ revised Oct. 17, 2002, 

at Questions 1, 3, 5, and 6. This is 

similar to the rule under the FMLA (see 

§ 825.302), where an employee need not 

assert his or her rights under the FMLA 

or even mention the FMLA to put the 

employer on notice of the need for 

FMLA leave, but must provide sufficient 

information to an employer so that the 

employer is aware that FMLA rights 

may be at issue. The proposed rule 

states that sufficient information 

includes information that indicates that 

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the employee is unable to perform the 

functions of the job, the anticipated 

duration of the absence, and whether 

the employee intends to visit a health 

care provider. Once the employer is put 

on notice of a FMLA leave request, the 

regulations specify what information 

must be exchanged between the 

employee and employer, rather than 

them engaging in an informal, 

‘‘interactive’’ process. 

Unpaid leave is a potential reasonable 

accommodation that an employer might 

need to provide to an otherwise 

qualified individual with a disability, 

unless (or until) it imposes an undue 

hardship on the operation of the 

employer’s business. See 29 CFR pt. 

1630 app. § 1630.2(o). An otherwise 

qualified individual with a disability 

may be entitled to additional unpaid 

leave as a reasonable accommodation 

under the ADA, beyond the 12 weeks of 

unpaid leave available under the FMLA, 

if the additional leave would not impose 

an undue hardship on the operation of 

the employer’s business. Generally, 

unpaid leave is explored as a reasonable 

accommodation only after examining, 

through the interactive process, whether 

reasonable accommodations can be 

made to the employee’s job to keep the 

employee at work. No set amount of 

leave is required as a reasonable 

accommodation under the ADA. The 

existence of the FMLA does not mean 

that more than 12 weeks of unpaid leave 

automatically imposes an undue 

hardship for purposes of the ADA. To 

evaluate whether additional leave 

would impose an undue hardship, the 

employer may consider the impact on 

its operations caused by the employee’s 

initial 12-week absence, along with the 

undue hardship factors specified in the 

ADA and its regulations found at 29 

CFR 1630.2(p). See EEOC FMLA and 

ADA Fact Sheet. 

Under the ADA, a qualified 

individual with a disability may work 

part-time in his or her current position, 

or occasionally take time off, as a 

reasonable accommodation if it would 

not impose an undue hardship on the 

employer. If (or when) reduced hours 

create an undue hardship in the current 

position, the employer must see if there 

is another effective accommodation or if 

there is a vacant, equivalent position for 

which the employee is qualified and to 

which the employee can be reassigned 

without undue hardship while working 

a reduced schedule. If an equivalent 

position is not available, the employer 

must look for a vacant position at a 

lower level for which the employee is 

qualified. Continued accommodation is 

not required if a vacant position at a 

lower level is also unavailable. See 

EEOC FMLA and ADA Fact Sheet, at 

Question 13. 

Under the ADA, an employer must 

continue health insurance coverage for 

an employee taking leave or working 

part-time only if the employer also 

provides coverage for other employees 

in the same leave or part-time status. 

The coverage must be on the same terms 

normally provided to those in the same 

leave or part-time status. See EEOC 

FMLA and ADA Fact Sheet, at Question 

15. Under the FMLA, an employer must 

maintain the employee’s existing level 

of coverage (including family or 

dependent coverage) under a group 

health plan during the period of FMLA 

leave, provided the employee pays his 

or her share of the premiums. 29 CFR 

825.209–.210. An employer may not 

discriminate against an employee using 

FMLA leave, and therefore must also 

provide such an employee with the 

same benefits (e.g., life or disability 

insurance) normally provided to an 

employee in the same leave or part-time 

status. 29 CFR 825.220(c). 

Under the ADA, an employer and 

employee may agree to a transfer, on 

either a temporary or a permanent basis, 

if both parties believe that such a 

transfer is preferable to accommodating 

the employee in his or her current 

position. Note that a qualified 

individual with a disability who is 

using FMLA leave to work reduced 

hours, and/or has been temporarily 

transferred into another job under the 

FMLA, may also need a reasonable 

accommodation (e.g., special 

equipment) to perform an essential 

function of the job. See 29 CFR 

825.204(b). 

Section 825.800 (Definitions) 

Current § 825.800 contains the 

definitions of significant terms used in 

the regulations. Changes to definitions 

that were affected by the Department’s 

proposed changes and clarifications 

have been made. Specifically, changes 

and clarifications have been made to the 

terms ‘‘continuing treatment,’’ ‘‘eligible 

employee,’’ ‘‘employee,’’ ‘‘health care 

provider,’’ ‘‘serious health condition,’’

‘‘parent,’’ and ‘‘son or daughter.’’

Family Leave in Connection With 

Injured Members of the Armed Forces 

and Qualifying Exigencies Related to 

Active Duty 

Section 585(a) of H.R. 4986, the 

National Defense Authorization Act for 

FY 2008, amends the FMLA to provide 

leave to eligible employees of covered 

employers to care for covered 

servicemembers and because of any 

qualifying exigency arising out of the 

fact that a covered family member is on 

active duty or has been notified of an 

impending call to active duty status in 

support of a contingency operation 

(collectively referred to herein as the 

military family leave provisions of H.R. 

4986). The provisions of H.R. 4986 

providing FMLA leave to care for a 

covered servicemember became 

effective on January 28, 2008, when the 

law was enacted. The provisions of H.R. 

4986 providing for FMLA leave due to 

a qualifying exigency arising out of a 

covered family member’s active duty (or 

call to active duty) status are not 

effective until the Secretary of Labor 

issues regulations defining ‘‘qualifying 

exigencies.’’ Because a significant 

number of United States military 

servicemembers are currently on active 

duty or call to active duty status, the 

Department is fully aware of the need to 

issue regulations under the military 

family leave provisions of H.R. 4986 as 

soon as possible. Towards that end, the 

Department began preliminary 

consultations with the Departments of 

Defense and Veterans Affairs and the 

U.S. Office of Personnel Management 

(which will administer similar 

provisions regarding leave to care for a 

covered servicemember for most Federal 

employees) prior to the passage of H.R. 

4986. 

As it did in the initial notice of 

proposed rulemaking under the FMLA 

in 1993, 58 FR 13394 (Mar. 10, 1993), 

and in the interest of ensuring the 

expedient publication of regulations, the 

Department is including in this Notice 

a description of the relevant military 

family leave statutory provisions, a 

discussion of issues the Department has 

identified, and a series of questions 

seeking comment on subjects and issues 

that may be considered in the final 

regulations. 5 U.S.C. 553(b)(3) (notice of 

proposed rulemaking shall include 

‘‘either the terms or substance of the 

proposed rule or a description of the 

subjects and issues involved’’). Because 

of the need to issue regulations as soon 

as possible so that employees and 

employers are aware of their respective 

rights and obligations regarding military 

family leave under the FMLA, the 

Department anticipates that the next 

step in the rulemaking process, after full 

consideration of the comments received 

in response to this Notice, will be the 

issuance of final regulations. 

The Department strongly encourages 

the submission of any comments or 

concerns which should be considered in 

the course of developing the final 

regulations. Commenters are encouraged 

to identify any issues related to military 

family leave they believe need to be 

addressed—even if the Department has 

not identified such issues—and to offer 

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their views, with supporting rationale, 

as to how such issues should be 

addressed by the Department. 

Commenters also are invited to submit 

data relating to the economic impact of 

the FMLA provisions in H.R. 4986. The 

Department will undertake to 

implement the new military family 

leave provisions so as to maximize the 

benefits and minimize the burdens on 

both employees and employers 

consistent with the purposes of the 

FMLA. 

Summary of the Military Family Leave 

Provisions and Regulatory Issues 

The FMLA amendments in Section 

585(a) of H.R. 4986 are summarized 

below. In addition to creating new leave 

entitlements, the FMLA provisions of 

H.R. 4986 include conforming 

amendments to incorporate the new 

leave entitlements into the current 

FMLA statutory provisions relating to 

the use of leave and to add certain new 

terms to the FMLA’s statutory 

definitions. The FMLA amendments in 

H.R. 4986 raise a number of issues about 

which the Department seeks comment. 

Although specific issues for public 

comment are listed below after the 

discussion of each FMLA statutory 

amendment in H.R. 4986, commenters 

are encouraged to identify any issues 

they believe need to be addressed. 

Section 101—Definitions 

The military family leave provisions 

of H.R. 4986 add certain new terms to 

the FMLA’s definitions. The Department 

is considering adding these definitions 

to proposed FMLA regulatory § 825.800 

as follows: 

The term ‘‘Active duty’’ is defined by 

H.R. 4986 as duty under a call or order 

to active duty under a provision of law 

referred to in 10 U.S.C. 101(a)(13)(B). 

This definition will be codified in the 

FMLA at 29 U.S.C. 2611(14). The 

Department believes that the 

Department of Defense is in the best 

position to determine when a 

servicemember has been called to active 

duty. Title 10 provides extensive 

information regarding a 

servicemember’s active duty or call to 

active duty status, the terms of which, 

as noted in H.R. 4986, are referenced in 

Section 101(a)(13)(B) of that Title. 

Accordingly, the Department believes 

that the definition of ‘‘active duty’’ in 

the military family leave provisions of 

H.R. 4986 does not require further 

clarification and is considering adding it 

to proposed FMLA regulatory § 825.800 

as currently defined in H.R. 4986, and 

cross-referencing 10 U.S.C. 

101(a)(13)(B). 

‘‘Contingency operation’’ is defined 

by the military family leave provisions 

of H.R. 4986 as a military operation 

designated by the Secretary of Defense 

as provided under 10 U.S.C. 101(a)(13). 

This definition will be codified in the 

FMLA at 29 U.S.C. 2611(15). The 

Department believes that the 

Department of Defense’s definition of 

‘‘contingency operation’’ found in Title 

10 does not require further clarification; 

therefore, the Department is considering 

including a definition of ‘‘contingency 

operations’’ in proposed FMLA 

regulatory § 825.800 as currently 

defined in Section 585(a)(1) of H.R. 

4986, and cross-referencing 10 U.S.C. 

101(a)(13). 

‘‘Covered servicemember’’ is defined 

by the military family leave provisions 

of H.R. 4986 as a member of the Armed 

Forces (including National Guard or 

Reserves) ‘‘who is undergoing medical 

treatment, recuperation, or therapy, is 

otherwise in outpatient status, or is 

otherwise on the temporary disability 

retired list, for a serious injury or 

illness.’’ This definition will be codified 

in the FMLA at 29 U.S.C. 2611(16). The 

Department believes that determining 

whether a member of the Armed Forces 

is in outpatient status or is otherwise on 

the temporary disability retired list for 

a serious illness or injury is likely to be 

relatively straightforward. There may be 

issues, however, regarding what it 

means for a servicemember to be 

‘‘undergoing medical treatment, 

recuperation, or therapy’’ for a serious 

illness or injury. The Department’s 

initial view is that any treatment, 

recuperation, or therapy provided to a 

servicemember for a serious injury or 

illness, and not just that provided by the 

Armed Forces, should be covered. The 

Department solicits public comments on 

this issue. Should there be a temporal 

proximity requirement between the 

covered servicemember’s injury or 

illness and the treatment, recuperation, 

or therapy for which care is required? 

Should the Department rely on a 

determination made by the Department 

of Defense as to whether a 

servicemember is undergoing medical 

treatment, recuperation, or therapy for a 

serious injury or illness? 

‘‘Outpatient status’’ for a covered 

servicemember is defined by the 

military family leave provisions of H.R. 

4986 as the status of a member of the 

Armed Forces assigned to (a) a medical 

treatment facility as an outpatient or (b) 

a unit established to provide command 

and control of members of the Armed 

Forces receiving medical care as 

outpatients. This definition will be 

codified in the FMLA at 29 U.S.C. 

2611(17). The Department believes this 

definition does not require further 

clarification, and is considering 

including it in proposed FMLA 

regulatory § 825.800 as currently drafted 

in Section 585(a)(1) of H.R. 4986. 

‘‘Next of kin’’ is defined by the 

military family leave provisions of H.R. 

4986 as the ‘‘nearest blood relative’’ of 

an individual. This definition will be 

codified in the FMLA at 29 U.S.C. 

2611(18). The Department is consulting 

with the Department of Defense 

regarding this definition. Preliminary 

information suggests that, for 

disposition of remains, personal effects 

and the release of records, the 

Department of Defense generally 

considers the following individuals 

‘‘next of kin’’ of a servicemember in the 

following order: (1) Unremarried 

surviving spouse; (2) natural and 

adopted children; (3) parents; (4) 

remarried surviving spouses (except 

those who obtained a divorce from the 

servicemember or who remarried before 

a finding of death by the military); (4) 

blood or adoptive relatives who have 

been granted legal custody of the 

servicemember by court decree or 

statutory provisions; (5) brothers or 

sisters; (6) grandparents; (7) other 

relatives of legal age in order of 

relationship to the individual according 

to civil laws; and (8) persons standing 

in loco parentis to the servicemember. 

The Department seeks comments on 

whether it should adopt the above list 

of next of kin for purposes of the 

military family leave provisions. The 

Department also seeks comments on 

whether a definition of ‘‘next of kin’’

that relies on differing State law 

interpretations is appropriate, and 

whether a certification of ‘‘next of kin’’

status should be required. If such a 

certification is required, the Department 

seeks comments on who should issue 

such a certification, and its contents. 

The Department also seeks public 

comments on the requirement in the 

military family leave provisions of H.R. 

4986 that the next of kin be the 

‘‘nearest’’ blood relative. Should the 

Department interpret this provision to 

mean that each covered servicemember 

may only have one next of kin who is 

eligible to take FMLA leave to provide 

care if the servicemember is undergoing 

medical treatment, recuperation, or 

therapy, is otherwise in outpatient 

status, or is otherwise on the temporary 

disability retired list, for a serious 

illness or injury? The Department seeks 

comments on how to determine if an 

employee is the nearest blood relative of 

a covered servicemember when a 

servicemember has several relatives of 

close consanguinity still alive, and 

whether this language could be 

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interpreted to provide military caregiver 

leave to any eligible next of kin of a 

covered servicemember. If the nearest 

blood relative of a covered 

servicemember is unable or unwilling to 

provide care, should the next nearest 

blood relative of the covered 

servicemember be eligible to take FMLA 

leave to care for the wounded 

servicemember? The Department also 

seeks comments on whether it would be 

appropriate to permit a covered 

servicemember to designate any blood 

relative, or other individuals such as 

those recognized by the Department of 

Defense as the servicemember’s 

Committed And Designated 

Representative (CADRE), as next of kin 

for purposes of FMLA leave taken to 

care for the servicemember. 

‘‘Serious injury or illness’’ in the case 

of members of the Armed Forces, 

National Guard, or Reserves is defined 

by the military family leave provisions 

of H.R. 4986 as ‘‘an injury or illness 

incurred by the member in line of duty 

on active duty in the Armed Forces that 

may render the member medically unfit 

to perform the duties of the member’s 

office, grade, rank, or rating.’’ This 

definition will be codified in the FMLA 

at 29 U.S.C. 2611(19). The Department 

believes that the Departments of Defense 

or Veterans Affairs are likely in the best 

position to provide the standard for 

what constitutes a ‘‘serious illness or 

injury’’ that may ‘‘render the member 

medically unfit to perform the duties of 

the member’s office, grade, rank, or 

rating.’’ Preliminary information 

suggests that the military branches 

already regularly provide, when 

requested, a medical certification to 

family members of covered 

servicemembers certifying that the 

member is seriously injured or ill and is 

actively receiving medical treatment. 

The Department seeks comments on 

whether a certification from the 

Departments of Defense or Veterans 

Affairs should be sufficient to establish 

whether a servicemember has a serious 

injury or illness that was incurred by 

the member in the line of duty while on 

active duty status in the Armed Forces, 

as well as on other approaches to 

determining whether a servicemember 

has an injury or illness that may render 

a servicemember medically unfit. The 

Department also seeks comments on 

whether H.R. 4986 permits eligible 

employees to take military caregiver 

leave under FMLA to care for a 

servicemember whose serious injury or 

illness was incurred in the line of duty 

but does not manifest itself until after 

the servicemember has left military 

service. In such circumstances, how 

would one determine whether the injury 

or illness renders, or may render, the 

servicemember medically unfit to 

perform the duties of the member’s 

office, grade, rank, or rating, when the 

servicemember is no longer serving in 

the military? 

The military family leave provisions 

of H.R. 4986 appear to rely on certain 

of the FMLA’s existing definitions (e.g., 

‘‘parent’’, ‘‘son or daughter’’, and 

‘‘spouse’’). Although H.R. 4986 does not 

change these definitions, the legislative 

history includes statements by members 

of Congress that suggest that the term 

‘‘son or daughter’’ should be given a 

broader meaning under the military 

family leave provisions to include adult 

children. As discussed in greater detail 

below, the Department seeks comment 

on whether it would be appropriate to 

define some of these terms differently 

for purposes of leave taken because of 

a qualifying exigency or to care for a 

covered servicemember under the 

military family leave provisions of H.R. 

4986. 

Section 102(a)—Leave Entitlement 

The military family leave provisions 

of H.R. 4986 add a new qualifying 

reason to take FMLA leave: ‘‘[b]ecause 

of any qualifying exigency (as the 

Secretary shall, by regulation, 

determine) arising out of the fact that 

the spouse, or a son, daughter, or parent 

of the employee is on active duty (or has 

been notified of an impending call or 

order to active duty) in the Armed 

Forces in support of a contingency 

operation.’’ This provision will be 

codified in the FMLA at 29 U.S.C. 

2612(a)(1)(E) and, by its terms, is not 

operative until the Secretary of Labor 

determines, by regulation, the qualifying 

exigencies that will entitle an eligible 

employee to take FMLA leave. 

Representative Jason Altmire, who 

introduced this provision, made the 

following three statements on the House 

Floor regarding leave taken for a 

qualifying exigency: 

This amendment allows the immediate 

family of military personnel to use Family 

Medical Leave Act time for issues directly 

arising from deployment and extended 

deployments. The wife of a recently 

deployed military servicemember could use 

the Family and Medical Leave Act to arrange 

for childcare. The husband of a 

servicemember could use the Family Medical 

Leave Act to attend predeployment briefings 

and family support sessions. The parents of 

a deployed servicemember could take Family 

Medical Leave Act time to see their raised 

child off or welcome them back home. This 

amendment does not expand eligibility to 

employees not already covered by the Family 

Medical Leave Act * * * 

[W]hat this legislation does is allow family 

members of our brave men and women 

serving in the Guard and Reserve to use 

Family and Medical Leave Act time to see 

off, to see the deployment, or to see the 

members return when they come back, and 

to use that, importantly, to deal with 

economic issues, and get the household 

economics in order * * * 

It will allow military families to use family 

and medical leave time to manage issues 

such as childcare and financial planning that 

arise as a result of the deployment of an 

immediate family member. 

153 Cong. Rec. H5258 (daily ed. May 16, 

2007); 153 Cong. Rec. H15325 (daily ed. 

Dec. 12, 2007); 153 Cong. Rec. H15349 

(daily ed. Dec. 12, 2007) (statements of 

Representative Altmire). 

In addition to Representative 

Altmire’s statements, in remarks on the 

Floor, Representative Tom Udall stated: 

For every soldier who is deployed 

overseas, there is a family back home faced 

with new and challenging hardships. The toll 

extends beyond emotional stress. From 

raising a child to managing household 

finances to day-to-day events, families have 

to find the time and resources to deal with 

the absence of a loved one. * * * The 

Altmire-Udall amendment would allow 

spouses, parents or children of military 

personnel to use Family and Medical Leave 

Act benefits for issues related directly to the 

deployment of a soldier. Current FMLA 

benefits allow individuals to take time off for 

the birth of a child or to care for a family 

member with a serious illness. The 

deployment of a soldier is no less of a crisis 

and certainly puts new demands on families. 

We should ensure that the FMLA benefits 

given in other circumstances are provided to 

our fighting families during their time of 

need. 

153 Cong. Rec. E1076 (daily ed. May 17, 

2007) (statement of Representative 

Udall). 

Finally, Representative George Miller 

stated that: 

Under the amendment * * * a worker can 

take family and medical leave to deal with 

the issues that arise as a result of a spouse, 

parent, or child’s deployment to a combat 

zone like Iraq or Afghanistan. Under this 

amendment family members can use the 

leave to take care of issues like making legal 

and financial arrangements and making child 

care arrangements or other family obligations 

that arise and double when family members 

are on active duty deployments * * * These 

deployments and extended tours are not easy 

on families, and two-parent households can 

suddenly become a single-parent household 

and one parent is left alone to deal with 

paying the bills, going to the bank, picking 

up the kids from school, watching the kids, 

providing emotional support to the rest of the 

family. You have got to deal with these 

predeployment preparations. 

153 Cong. Rec. H5336 (daily ed. May 17, 

2007) (statement of Representative 

Miller). 

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Given the statements above and 

Webster’s Dictionary definition of 

‘‘exigency’’ as ‘‘the quality or state of 

requiring immediate aid or action, or a 

state of affairs that makes urgent 

demands,’’ how should the Department 

define qualifying exigencies for 

purposes of the military family leave 

provisions of H.R. 4986? Should 

qualifying exigencies be limited to those 

items of an urgent or one-time nature 

arising from deployment as opposed to 

routine, everyday life occurrences? The 

military family leave provisions of H.R. 

4986 would allow leave for any 

‘‘qualifying’’ exigency arising out of the 

fact that the spouse, son, daughter, or 

parent of an eligible employee is on 

active duty (or has been notified of an 

impending call or order to active duty) 

in support of a contingency operation. 

Because the statute uses the word 

‘‘qualifying’’, it is the Department’s 

initial view that not every exigency 

necessarily will entitle a military family 

member to leave. It also is the 

Department’s initial view that there 

must be some nexus between the 

eligible employee’s need for leave and 

the servicemember’s active duty status. 

The Department solicits comments on 

the degree of nexus required to 

demonstrate that the exigency arises out 

of the servicemember’s active duty 

status. In light of the fact that this new 

entitlement to leave would be in 

addition to the existing qualifying 

reasons for FMLA leave, which already 

permit an eligible employee to take 

FMLA leave to care for a son or 

daughter, parent, or spouse with a 

serious health condition, the 

Department’s initial view is that leave 

for qualifying exigencies should be 

limited to non-medical related 

exigencies, as suggested by 

Representative Altmire’s statements. 

The Department seeks comment on 

these issues and on whether it would be 

appropriate to develop a list of predeployment, deployment, and postdeployment qualifying exigencies. If so, 

should the following types of exigencies 

qualify: making arrangements for child 

care; making financial and legal 

arrangements to address the 

servicemember’s absence; attending 

counseling related to the active duty of 

the servicemember; attending official 

ceremonies or programs where the 

participation of the family member is 

requested by the military; attending to 

farewell or arrival arrangements for a 

servicemember; and attending to affairs 

caused by the missing status or death of 

a servicemember? Are there other types 

of exigencies that should qualify? 

Additionally, should such a list be a per 

se list of qualified exigencies? 

Although Representative Altmire’s 

statements suggest that a parent of an 

adult son or daughter should be 

permitted to take FMLA leave for a 

qualifying exigency arising out of the 

deployment of the son or daughter, the 

military family leave provisions of H.R. 

4986 do not alter the current FMLA 

definition of ‘‘son or daughter.’’ Under 

this definition, a son or daughter must 

either be (1) under the age of 18 or (2) 

18 years of age or older and incapable 

of self-care because of a mental or 

physical disability. 29 U.S.C. 2611(12). 

The Department recognizes that 

applying this definition of ‘‘son or 

daughter’’ to leave taken because of a 

qualifying exigency would mean parents 

would only be able to take FMLA leave 

because of a qualifying exigency if their 

son or daughter is under the age of 18 

or older than age 18 and incapable of 

self-care because of a mental or physical 

disability. By Federal law, however, the 

minimum age for enlistment in the 

United States Military is 17 (with 

parental consent). 10 U.S.C. 505. 

Moreover, children over the age of 18 

who are incapable of self-care are 

unlikely to be found medically qualified 

to perform military duties. Therefore, 

the Department seeks comments on 

whether it would be appropriate, given 

the language of H.R. 4986, to define the 

term ‘‘son or daughter’’ differently for 

purposes of FMLA leave taken because 

of a qualifying exigency. 

The military family leave provisions 

of H.R. 4986 also establish an additional 

leave entitlement that permits an ‘‘an 

eligible employee who is the spouse, 

son, daughter, parent, or next of kin of 

a covered servicemember’’ to ‘‘a total of 

26 workweeks of leave during a 12- 

month period to care for the 

servicemember.’’ This provision will be 

codified in the FMLA at 29 U.S.C. 

2612(a)(3). A number of issues regarding 

the application of this new FMLA leave 

entitlement are discussed below. The 

Department invites comments on these, 

and any other issues, related to the 

provision of FMLA leave to care for a 

covered servicemember. 

First, as with leave taken for a 

qualifying exigency, the military 

caregiver provision of H.R. 4986 does 

not alter the current FMLA definition of 

‘‘son or daughter’’ for purposes of 

defining who is eligible to take leave to 

care for a covered servicemember. Thus, 

the only sons or daughters who will be 

eligible to take FMLA leave to care for 

a seriously injured servicemember will 

be those who are under the age of 18 or 

age 18 or older and incapable of selfcare because of a mental or physical 

disability. One alternative would be for 

the Department to define ‘‘next of kin’’

as including children of covered 

servicemembers. The Department could 

then define the term ‘‘children’’ more 

expansively than the term ‘‘son or 

daughter’’ is currently defined in the 

FMLA to allow adult children of 

covered servicemembers to take FMLA 

leave to care for a covered 

servicemember. Alternatively, the 

Department could define the term ‘‘son 

or daughter of a covered 

servicemember’’ differently than the 

term ‘‘son or daughter.’’ The Department 

seeks comments on these approaches, 

whether these approaches are allowed 

by the military family leave provisions 

of H.R. 4986, and whether it is 

appropriate to define the term ‘‘son or 

daughter’’ differently for purposes of 

FMLA leave taken to care for a covered 

servicemember. 

Second, the military family leave 

provisions of H.R. 4986 provide that 

leave to care for a covered 

servicemember shall only be available 

‘‘during a single 12-month period.’’ The 

amendments do not specify whether 

that 12-month period should be 

calculated from the date of the 

servicemember’s injury, the date of the 

determination that the servicemember 

has a serious injury or illness, the first 

date on which an eligible employee is 

needed to care for a seriously injured 

servicemember, or on some other basis. 

Current and proposed § 825.200 of the 

FMLA regulations permits an employer 

to choose any of the following methods 

when determining the 12-month period 

in which the current 12 weeks of FMLA 

leave entitlement occurs: (1) The 

calendar year; (2) any fixed 12-month 

‘‘leave year,’’ such as a fiscal year, a year 

required by State law, or a year starting 

on an employee’s anniversary date; (3) 

the 12-month period measured forward 

from the date any employee’s first 

FMLA leave begins; or, (4) a ‘‘rolling’’

12-month period measured backward 

from the date an employee uses any 

FMLA leave. The Department seeks 

comments on how the ‘‘single 12-month 

period’’ should be measured for 

purposes of determining entitlement to 

leave to care for a covered 

servicemember. For example, should an 

employer be permitted to choose a 

method when determining the 12-month 

period in which the 26 workweeks of 

leave entitlement to care for a covered 

servicemember occurs, as is the case for 

other types of FMLA-qualifying leave? 

What distinctions should the 

Department draw between calculating 

the 12-month period for leave to care for 

a covered servicemember and the other 

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qualifying reasons for FMLA leave? The 

Department also seeks comments on 

how to reconcile this single 12-month 

period to the employer’s regular FMLA 

leave year, if different 12-month periods 

are used. 

Third, the military family leave 

provisions of H.R. 4986 provide that the 

eligible employee is entitled to a total of 

26 workweeks of leave during a single 

12-month period to care for a covered 

servicemember. Is the 26 workweek 

leave entitlement to care for a covered 

servicemember a one-time entitlement 

or may an employee have multiple 

entitlements? The FMLA currently 

provides that an eligible employee is 

entitled to a total of 12 workweeks of 

leave during the relevant 12-month 

period. The 12 workweeks of leave may 

be taken for any qualifying FMLA 

reason until the leave is exhausted in 

the relevant 12-month period. Assuming 

the employee continues to meet the 

eligibility requirements, the employee 

may take leave again (up to 12 weeks) 

for any qualifying FMLA reason in a 

new leave year. The Department seeks 

comments on whether a similar 

approach to leave taken to care for a 

covered servicemember would be 

appropriate even though the leave 

entitlement to care for a covered 

servicemember is limited to a ‘‘single 

12-month period’’ under the military 

family leave provisions of H.R. 4986. 

Given the statutory language of H.R. 

4986, can the 26 workweek leave 

entitlement be interpreted to apply per 

covered servicemember, i.e., each 

eligible employee may take 26 

workweeks of leave to care for each 

covered servicemember? Under this 

reading, an eligible employee would be 

permitted to take 26 workweeks of leave 

to care for his or her spouse who is a 

covered servicemember in a 12-month 

period, and could take another 26 

workweeks of leave to care for his or her 

parent who is a covered servicemember 

in another 12-month period. Could an 

employee take leave to care for both a 

spouse and a child who are covered 

servicemembers in the same 12-month 

period? Alternatively, could the 26 

workweek leave entitlement be 

calculated per injury of a covered 

servicemember, such that an eligible 

employee may take 26 workweeks of 

leave during a single 12-month period to 

provide care to a covered 

servicemember and then may take 

another 26 workweeks of leave during a 

different 12-month period to provide 

care to the same covered servicemember 

who is experiencing a second serious 

injury or illness? The 26 workweek 

leave entitlement also may be viewed as 

a one-time entitlement to each eligible 

employee. This interpretation would 

permit each eligible employee to take 26 

workweeks of leave during any single 

12-month period, but would not entitle 

that employee to any additional periods 

of military family leave to care for the 

same or other covered servicemembers 

while still employed by the same 

covered employer. In this circumstance, 

does the 12-month limitation continue 

to apply to the employee in the event he 

or she goes to work for a different 

employer? Under any of these examples, 

should an employee be permitted to 

take more than 26 workweeks of leave 

during a single 12-month period? The 

Department seeks comments on these 

and any other options relating to how 

this provision should be interpreted. 

Fourth, because leave to care for a 

covered servicemember with a serious 

illness or injury may, in some 

circumstances, also qualify as leave to 

care for a spouse, parent, or child with 

a serious health condition, the 

Department seeks comments on how 

such leave should be designated. In 

particular, the Department seeks 

comments on whether the employee or 

employer should be able to select 

whether the leave is counted as FMLA 

leave taken to care for a covered 

servicemember or FMLA leave taken to 

care for a spouse, parent or child with 

a serious health condition. The 

Department also seeks comments on 

whether an initial designation of this 

leave as one type of FMLA leave may be 

changed retroactively in any 

circumstances. 

Finally, the military family leave 

provisions of H.R. 4986 provide for a 

combined total of 26 workweeks of 

FMLA leave for an eligible employee 

who takes leave to care for a covered 

servicemember as well as leave for other 

FMLA-qualifying reasons during the 

applicable 12-month period. The 

military family leave provisions of H.R. 

4986 do not limit the availability of 

leave to an eligible employee for other 

FMLA-qualifying reasons during any 

other 12-month period. These 

provisions will be codified in the FMLA 

at 29 U.S.C. 2612(a)(4). How should 

these provisions be implemented if 

different methods are used to calculate 

the 12-month period for leave taken to 

care for a covered servicemember versus 

leave for other FMLA-qualifying 

reasons? 

Section 102(b)—Requirements Relating 

to Leave Taken Intermittently or on a 

Reduced Leave Schedule 

The military family leave provisions 

of H.R. 4986 allow eligible employees to 

take FMLA leave to care for a covered 

servicemember intermittently or on a 

reduced leave schedule when medically 

necessary. Eligible employees also are 

permitted to take FMLA leave for a 

qualifying exigency intermittently or on 

a reduced leave schedule. These 

provisions will be codified in the FMLA 

at 29 U.S.C. 2612(b)(1). The military 

family leave provisions of H.R. 4986 

also permit an employer to require an 

employee taking FMLA leave to care for 

a covered servicemember who is 

undergoing planned treatment to 

temporarily transfer to an available 

alternative position with equivalent pay 

and benefits that better accommodates 

recurring periods of intermittent leave 

or leave on a reduced leave schedule. 

This is the case currently for FMLA 

leave taken for planned medical 

treatment due to the employee’s own 

serious health condition or the serious 

health condition of a spouse, son, 

daughter, or parent. The military family 

leave provisions of H.R. 4986 do not 

specifically provide for such temporary 

transfers when FMLA leave is taken for 

a qualifying exigency. The Department 

seeks comment on whether it would be 

appropriate to permit temporary 

transfers when FMLA leave is taken on 

an intermittent or reduced leave 

schedule basis for a qualifying exigency. 

The Department also seeks comment on 

how H.R. 4986’s provisions regarding 

leave taken intermittently or on a 

reduced leave schedule should be 

incorporated into proposed FMLA 

regulatory § 825.202, which generally 

explains the taking of FMLA leave 

intermittently or on a reduced leave 

schedule, and proposed FMLA 

regulatory § 825.204, which covers 

temporary transfers. 

Section 102(d)—Relationship to Paid 

Leave 

The military family leave provisions 

of H.R. 4986 amend the statutory 

provisions for substitution of paid leave 

to include the new FMLA leave 

entitlements. These amendments will be 

codified in the FMLA at 29 U.S.C. 

2612(d). Under the military family leave 

provisions of H.R. 4986, an eligible 

employee may elect, or an employer 

may require, that an employee 

substitute any accrued paid vacation 

leave, personal leave, or family leave for 

unpaid FMLA leave taken because of a 

qualifying exigency. In addition, the 

military family leave provisions of H.R. 

4986 permit an eligible employee to 

elect, or an employer to require, that an 

employee substitute any accrued paid 

vacation leave, personal leave, family 

leave, or medical or sick leave for 

unpaid FMLA leave taken to care for a 

covered servicemember. The 

Department is considering how to 

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incorporate the military family leave 

provisions into proposed FMLA 

regulatory § 825.207, which addresses 

the substitution of paid leave for unpaid 

FMLA leave. Because that section as 

currently proposed in this NPRM refers 

generally to the substitution of paid 

leave for unpaid FMLA leave, the 

Department does not believe that 

specific reference to the new types of 

leave entitlement is required. The 

Department also seeks comments on 

alternative approaches relating to 

substitution of paid leave for military 

family leave provided under H.R. 4986. 

Section 102(e)—Employee Notice 

The military family leave provisions 

of H.R. 4986 extend to the new leave 

provision related to care for a 

servicemember the FMLA’s existing 

requirements for employees to provide 

advance notice when the need for leave 

is foreseeable based on planned medical 

treatment, and for making reasonable 

efforts to schedule planned medical 

treatment so as not to disrupt unduly 

the employer’s operations. The military 

family leave provisions of H.R. 4986 

also provide for new notice 

requirements for leave taken due to 

qualifying exigencies whenever the 

need for such leave is foreseeable. The 

military family leave provisions of H.R. 

4986 require that eligible employees 

provide notice to the employer that is 

‘‘reasonable and practicable’’ in these 

circumstances. These amendments will 

be codified in the FMLA at 29 U.S.C. 

2612(e)(2) and (e)(3). 

Under the proposed FMLA 

regulations in this NPRM, an employee 

must generally 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, a medical emergency, or 

because the leave is unforeseeable, 

notice must be given as soon as 

practicable under the particular facts 

and circumstances. For a further 

discussion of the employee notice 

requirements proposed in this NPRM, 

see the preamble discussion of proposed 

FMLA regulatory §§ 825.302 and 

825.303. 

The Department’s initial view is that 

these same notice requirements should 

be extended to leave taken to care for a 

covered servicemember. If the same 

notice requirements were adopted, an 

employee taking FMLA leave to care for 

a covered servicemember generally 

would be expected to provide the 

employer at least 30 days advance 

notice before FMLA leave is to begin 

when the need for the leave is 

foreseeable based on planned medical 

treatment for the covered 

servicemember. 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, a medical emergency, or 

because the leave is unforeseeable, 

notice must be given as soon as 

practicable under the particular facts 

and circumstances. The Department 

seeks comments on whether it should 

incorporate leave to care for a covered 

servicemember into the notice 

provisions of proposed FMLA 

regulatory §§ 825.302 and 825.303. The 

Department also is considering applying 

the requirements in proposed FMLA 

regulatory §§ 825.302(c) and 825.303(b), 

which require that the employee 

provide at least verbal notice sufficient 

to make the employer aware that the 

employee needs FMLA-qualifying leave 

and provide information regarding the 

anticipated timing and duration of the 

leave, to the taking of FMLA leave to 

care for a covered servicemember. 

Finally, the Department requests 

comments on whether proposed FMLA 

regulatory §§ 825.203 and 825.302(e), 

which address an employee’s obligation 

to make a reasonable effort to schedule 

foreseeable leave for planned medical 

treatment so as not to disrupt unduly 

the employer’s operations, should 

specifically reference the requirement in 

H.R. 4986 that servicemember family 

leave that is foreseeable based on 

planned medical treatment be 

scheduled in the same manner. 

The military family leave provisions 

of H.R. 4986 provide that an employee 

taking leave due to a qualifying 

exigency provide ‘‘such notice to the 

employer as is reasonable and is 

practicable.’’ The Department’s initial 

view is that the notice requirements in 

proposed FMLA regulatory §§ 825.302 

and 825.303 also should be applied to 

leave taken due to qualifying exigencies. 

If different notice requirements should 

be used, the Department seeks 

comments on what should be required. 

For example, should the notice timing 

requirements for leave taken due to 

qualifying exigencies distinguish 

between foreseeable leave and 

unforeseeable leave, as proposed FMLA 

regulatory §§ 825.302 and 825.303 do? 

Additionally, leave taken because of a 

qualifying exigency may not involve a 

medical condition; therefore, the 

Department seeks comments on the type 

of information an employee should 

provide to the employer in order for the 

notice to be sufficient to make the 

employer aware that the employee’s 

need is FMLA-qualifying. 

These changes also will likely require 

that the Department make conforming 

changes to proposed FMLA regulatory 

§ 825.301(b), which generally addresses 

employee responsibilities to provide 

notice of the need for FMLA leave. The 

exact nature of the changes will depend 

on whether the same notice standards 

are applied to all qualifying reasons for 

FMLA leave. The Department believes 

that the general notice principles set 

forth in proposed FMLA regulatory 

§ 825.301 should apply to all qualifying 

reasons for FMLA leave. The public is 

invited, however, to comment on this 

issue and provide alternative views. 

Section 102(f)—Leave Entitlements for 

Spouses Employed by the Same 

Employer 

Under the military family leave 

provisions of H.R. 4986, an employer 

may limit the aggregate amount of leave 

to which eligible spouses employed by 

the same employer may be entitled in 

some circumstances. H.R. 4986 provides 

that a husband and wife employed by 

the same employer are limited to a 

combined total of 26 workweeks of 

leave during the relevant 12-month 

period if the leave taken is to care for 

a covered servicemember or a 

combination of leave taken to care for a 

covered servicemember and leave for 

the birth or placement of a healthy child 

or to care for a parent with a serious 

health condition. This provision does 

not alter the existing 12-week limitation 

that applies to leave taken by a husband 

and wife employed by the same 

employer for leave for the birth or 

placement of a healthy child or to care 

for a parent with a serious health 

condition (e.g., a husband and wife 

employed by the same employer could 

take no more than a combined total of 

12 weeks of FMLA leave for the birth or 

placement of a healthy child in a 12- 

month period, even if the husband and 

wife combined took fewer than 14 

weeks of leave to care for a covered 

servicemember, in that same period). 

These provisions will be codified in the 

FMLA at 29 U.S.C. 2612(f). How should 

the Department incorporate the same 

employer limitation of the military 

family leave provisions of H.R. 4986 

into the regulatory scheme proposed in 

this NPRM? The Department 

specifically seeks comments on how 

H.R. 4986’s limitation on spouses 

employed by the same employer would 

interact with FMLA’s existing limitation 

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on spouses employed by the same 

employer if different 12-month periods 

are used to determine eligibility for 

leave taken to care for a covered 

servicemember and other FMLAqualifying leave. 

Conforming regulatory changes likely 

will be required to proposed FMLA 

regulatory § 825.120(a)(3), which 

discusses the applicability of the same 

employer limit to FMLA leave taken for 

pregnancy or birth; proposed FMLA 

regulatory § 825.121(a)(3), applying the 

same employer limit to FMLA leave 

taken for adoption or foster care; and 

proposed FMLA regulatory § 825.201(b), 

which discusses the same employer 

limit in the context of FMLA leave taken 

to care for a parent with a serious health 

condition. The Department requests 

comments on how these sections should 

be changed to incorporate the same 

employer limit in the military family 

leave provisions of H.R. 4986. 

Section 103—Certification 

The military family leave provisions 

of H.R. 4986 allow employers to apply 

the FMLA’s existing medical 

certification requirements for serious 

health conditions to leave taken to care 

for a covered servicemember. In 

addition, the military family leave 

provisions of H.R. 4986 provide for a 

new certification related to leave taken 

because of a qualifying exigency. Under 

the military family leave provisions of 

H.R. 4986, an employer may require that 

leave taken because of a qualifying 

exigency be ‘‘supported by a 

certification issued at such time and in 

such manner as the Secretary may by 

regulation prescribe.’’ These provisions 

will be codified in the FMLA at 29 

U.S.C. 2613. 

The military family leave provisions 

of H.R. 4986 amend FMLA’s current 

certification requirements to permit an 

employer to request that leave taken to 

care for a covered servicemember be 

supported by a medical certification. 

FMLA’s current certification 

requirements, however, focus on 

providing information related to a 

serious health condition—a term that is 

not relevant to leave taken to care for a 

covered servicemember. At the same 

time, the military family leave 

provisions of H.R. 4986 do not explicitly 

require that a sufficient certification for 

purposes of military caregiver leave 

provide relevant information regarding 

the covered servicemember’s serious 

injury or illness, such as whether the 

injury was incurred by the member in 

the line of duty while on active duty in 

the Armed Forces, or whether the injury 

may render the member medically unfit 

to perform the duties of the member’s 

office, grade, rank, or rating. In light of 

this, the Department seeks comments on 

the appropriate certification 

requirements for military caregiver 

leave, including whether it would be 

appropriate to interpret FMLA’s 

statutory certification requirements 

differently for purposes of leave taken to 

care for a covered servicemember. 

Furthermore, FMLA currently 

provides that an employer may request 

a medical certification issued by the 

health care provider of the employee’s 

son, daughter, spouse, or parent in order 

to support a request for FMLA leave to 

care for a spouse, parent, or child with 

a serious health condition. 29 U.S.C. 

2613. Although the leave entitlement 

provisions of H.R. 4986 permit an 

eligible employee who is the next of kin 

of a covered servicemember to take 

military family leave, H.R. 4986’s 

certification requirements appear to 

permit an employer to obtain 

certification issued by the health care 

provider of the employee’s next of kin, 

rather than the covered servicemember. 

The Department believes that an 

employer should only be able to obtain 

a certification from the health care 

provider or military branch of the 

covered servicemember for whom the 

eligible employee is caring. The 

Department seeks comment on whether 

it is appropriate to interpret the military 

family leave provisions of H.R. 4986 in 

this manner when a medical 

certification is sought for leave taken by 

an eligible employee who is the next of 

kin of a covered servicemember. 

The Department is considering 

whether a medical certification to 

support leave taken to care for a covered 

servicemember issued by the 

Departments of Defense or Veterans 

Affairs would, in all cases, eliminate the 

need to both define a sufficient medical 

certification for purposes of taking leave 

to care for a covered servicemember and 

develop a clarification, authentication, 

validation, and recertification process 

for leave taken for this purpose. The 

Department also seeks comment on 

whether, and how, to incorporate the 

new certification requirement for leave 

taken to care for a covered 

servicemember into proposed FMLA 

regulatory § 825.305, which describes 

the general rule applicable to FMLA 

medical certifications; and proposed 

FMLA regulatory § 825.306, which 

addresses the required content of a 

FMLA medical certification. In light of 

the fact that many of the certifications 

supporting leave taken to care for a 

covered servicemember may be issued 

by the Departments of Defense or 

Veterans Affairs, the Department 

specifically seeks comment on whether 

there should be different timing 

requirements that an employee must 

follow when providing such 

certification. Likewise, should the 

content of a sufficient medical 

certification be different when it is 

required to support a leave request to 

care for a covered servicemember? 

Should the clarification, authentication, 

and second and third opinion 

provisions of proposed FMLA 

regulatory § 825.307 and the 

recertification provisions in proposed 

FMLA regulatory § 825.308 be applied 

to certifications supporting FMLA leave 

taken to care for a covered 

servicemember, and, if so, how? 

The military family leave provisions 

of H.R. 4986 also permit the Secretary 

of Labor to prescribe a new certification 

requirement for leave taken because of 

a qualifying exigency arising out of a 

servicemember’s active duty or call to 

active duty. The Department is 

considering how to implement such a 

requirement and seeks comments on the 

following specific issues: 

(A) What type of information should 

be provided in a certification related to 

active duty or call to active duty status 

in order for it to be considered complete 

and sufficient? Should the certification 

merely require confirmation of the 

covered servicemember’s active duty 

status? 

(B) Who may issue a certification 

related to active duty or call to active 

duty status? Should anyone other than 

the Department of Defense provide a 

certification of the covered 

servicemember’s active duty or call to 

active duty status? 

(C) The Department’s initial view is 

that an employee also must provide 

certification that an absence(s) is due to 

a qualifying exigency. Because the 

military family leave provisions of H.R. 

4986 require that the qualifying 

exigency arise out of the covered 

servicemember’s active duty or call to 

active duty status in support of a 

contingency operation, should any 

required certification specify that the 

requested leave is a qualifying exigency 

or that it arises out of the covered 

servicemember’s active duty or call to 

active duty status in support of a 

contingency operation? 

(D) Should an employee seeking 

FMLA leave due to a qualifying 

exigency provide certification of the 

qualifying exigency by statement or 

affidavit? Who else might certify that a 

particular request for FMLA leave is 

because of a qualifying exigency? 

(E) Should the certification 

requirements for leave taken because of 

a qualifying exigency vary depending on 

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the nature of the qualifying exigency for 

which leave is being taken? 

(F) What timing requirements should 

be applied to certifications related to 

leave taken because of a qualifying 

exigency? 

(G) Who should bear the cost, if any, 

of obtaining certifications related to 

leave taken because of a qualifying 

exigency? 

(H) Should an employer be permitted 

to clarify, authenticate, or validate an 

active duty or call to active duty 

certification? Likewise, should an 

employer be permitted to clarify, 

authenticate, or validate a certification 

that a particular event is a qualifying 

exigency? If so, what limitations, if any, 

should be imposed on an employer’s 

ability to seek such clarification, 

authentication, or validation for both 

types of certifications? 

(I) Should a recertification process be 

established for certifications related to 

leave taken because of a qualifying 

exigency? If so, how would that process 

compare to the current FMLA 

recertification process? 

Section 104(c)—Maintenance of Health 

Benefits 

Under the FMLA, an employer must 

maintain group health insurance 

coverage for an eligible employee on 

FMLA leave on the same terms as if the 

employee continued to work. 29 U.S.C. 

2614(c). When an eligible employee 

takes qualifying leave to care for a 

covered servicemember and fails to 

return from leave after the period of 

leave entitlement has expired, under the 

FMLA amendments in H.R. 4986, the 

employer may recover the premiums 

paid for maintaining the employee’s 

group health plan coverage during any 

period of unpaid leave if the employee 

fails to return to work for a reason other 

than the continuation, recurrence, or 

onset of a serious health condition that 

entitles the employee to leave or other 

circumstances beyond the control of the 

employee. In addition, the military 

family leave provisions of H.R. 4986 

provide that an employer may require 

an employee to support a claim that he 

or she did not return to work after 

taking military caregiver leave because 

of the continuation, recurrence, or onset 

of a serious health condition with a 

certification issued by the health care 

provider of the servicemember being 

cared for by the employee. These 

provisions will be codified in the FMLA 

at 29 U.S.C. 2614(c)(2)–(3). 

These new requirements focus on 

whether an employee does not return to 

work because of the continuation, 

recurrence, or onset of a serious health 

condition—a term that is not relevant to 

leave taken to care for a covered 

servicemember. At the same time, the 

military family leave provisions of H.R. 

4986 do not explicitly address whether 

an employer may recover premiums 

paid when an employee fails to return 

to work because of the continuation, 

recurrence, or onset of a serious injury 

or illness of the covered servicemember. 

Likewise, the military family leave 

provisions of H.R. 4986 do not 

specifically provide that an employer 

may obtain a certification regarding the 

continuation, recurrence, or onset of the 

servicemember’s serious injury or 

illness if an employee does not return to 

work after taking FMLA leave to care for 

a covered servicemember. In light of 

this, the Department seeks comments on 

how to appropriately implement these 

provisions of H.R. 4986. 

The Department is considering 

revisions to proposed FMLA regulatory 

§ 825.213(a) to incorporate these new 

requirements. The Department believes 

that proposed FMLA regulatory 

§ 825.213(a)(1) will need to be changed 

in order to address an employee’s 

failure to return to work after taking 

leave to care for a covered 

servicemember. Proposed FMLA 

regulatory § 825.213(a)(3) also will need 

to be changed to provide that an 

employer may require an employee to 

provide a certification issued by the 

health care provider of the covered 

servicemember being cared for by the 

employee. The Department requests 

comments on how the requirements in 

H.R. 4986 should be incorporated into 

these proposed FMLA regulatory 

provisions, and whether any additional 

guidance may be required on this topic. 

Section 107—Enforcement 

The military family leave provisions 

of H.R. 4986 provide for conforming 

amendments to the FMLA to include the 

new leave entitlements in the FMLA’s 

statutory enforcement scheme. These 

provisions will be codified in the FMLA 

at 29 U.S.C. 2617 and amend FMLA’s 

damages provision to provide for the 

recovery of damages equal to any actual 

monetary losses sustained by the 

employee up to a total of 26 weeks 

(rather than the current 12 weeks) in a 

case involving leave to care for a 

covered servicemember in which wages, 

salary, employment benefits or other 

compensation have not been denied or 

lost to the employee. 

The Department believes that a 

similar revision is required to FMLA 

regulatory § 825.400(c). That regulatory 

provision currently and as proposed in 

this NPRM provides that an employee is 

entitled to actual monetary losses 

sustained by an employee as a direct 

result of an employer’s violation of one 

or more of the provisions of FMLA up 

to a total of 12 weeks of wages. In order 

to reflect that the leave provisions 

relating to care for a covered 

servicemember provide up to 26 weeks 

of leave, the Department anticipates 

changing FMLA regulatory § 825.400(c) 

to provide that, in a case involving a 

violation of the military family leave 

provisions, an employee is entitled to 

actual monetary losses sustained up to 

a total of 26 weeks of wages. The 

Department does not believe that further 

changes to the FMLA regulatory 

provisions on enforcement are required 

in order to implement the military 

family leave provisions of H.R. 4986. 

The Department invites the public to 

comment on this and any other 

enforcement provisions that they 

believe may need to be revised. 

Section 108—Instructional Employees 

The military family leave provisions 

of H.R. 4986 also extend the entitlement 

to take FMLA leave to care for a covered 

servicemember and because of a 

qualifying exigency to eligible 

instructional employees of local 

educational agencies. In order to 

implement this revision, H.R. 4986 

contains three statutory changes to the 

FMLA, which will be codified in 

subsections (c)(1), (d)(2), and (d)(3) of 29 

U.S.C. 2618, and apply the current 

FMLA rules regarding the taking of 

intermittent leave or leave on a reduced 

leave schedule, or leave near the end of 

an academic term, by employees of local 

educational agencies to certain leave 

taken to care for a covered 

servicemember by these same 

employees. The Department believes 

that three related regulatory changes are 

required to incorporate these provisions 

of H.R. 4986 into the FMLA regulatory 

scheme proposed in this NPRM, which 

other than changes to titles and very 

minor editorial changes is the same as 

the instructional employee provisions in 

the current FMLA regulations. 

First, the military family leave 

provisions of H.R. 4986 provide that an 

employer covered by 29 U.S.C. 2618 

could require that, in the case of an 

instructional employee who requests 

FMLA leave intermittently or on a 

reduced leave schedule for foreseeable 

planned medical treatment of a covered 

servicemember and who, as a result, 

will be on leave for greater than 20 

percent of the total number of working 

days during the period of leave, the 

employee choose to either (1) take leave 

for a period or periods of particular 

duration; or (2) transfer temporarily to 

an available alternative position with 

equivalent pay and benefits that better 

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accommodates recurring periods of 

leave. In order to incorporate this 

change, the Department believes a 

minor technical revision is required to 

current and proposed FMLA regulatory 

§ 825.601(a)(1) to provide that the 

provisions of that section apply when 

an eligible instructional employee needs 

intermittent leave or leave on a reduced 

schedule to care for a covered 

servicemember, in addition to applying 

to situations where the employee takes 

such leave to care for a family member 

or for the employee’s own serious health 

condition. In all three cases, the 

provision would continue to apply only 

to intermittent leave or leave on a 

reduced leave schedule which is 

foreseeable based on planned medical 

treatment and requires the employee to 

be on leave for more than 20 percent of 

the total number of working days over 

the period the leave would extend. 

Second, the military family leave 

provisions of H.R. 4986 extend some of 

the limitations on leave near the end of 

an academic term to leave requested 

during this period to care for a covered 

servicemember. The Department 

believes that several FMLA regulatory 

sections will need to be changed in 

order to apply the limitations on leave 

near the end of an academic term to 

military family leave. Current and 

proposed FMLA regulatory 

§ 825.602(a)(2) provides that, where an 

instructional employee begins leave for 

a purpose other than the employee’s 

own serious health condition during the 

five-week period before the end of the 

term, the employer may require the 

employee to continue taking leave until 

the end of the term if the leave will last 

more than two weeks and the employee 

would return to work during the twoweek period before the end of the term. 

Because the military family leave 

provisions of H.R. 4986 only extend this 

limitation on leave near the end of an 

academic term to leave taken to care for 

a covered servicemember, and not leave 

taken because of a qualifying exigency, 

the Department believes that this FMLA 

regulatory section may need to be 

changed in order to specifically 

reference the types of leave that are 

subject to the limitation: (1) Leave 

because of the birth of a son or daughter, 

(2) leave because of the placement of a 

son or daughter for adoption or foster 

care, (3) leave taken to care for a spouse, 

parent, or child with a serious health 

condition, and (4) leave taken to care for 

a covered servicemember. A similar 

revision also may be required to FMLA 

regulatory § 825.602(a)(3), which 

currently and as proposed in this NPRM 

provides that an employer may require 

an instructional employee to continue 

taking leave until the end of the term 

where the employee begins leave which 

will last more than five working days for 

a purpose other than the employee’s 

own serious health condition during the 

three-week period before the end of the 

term. 

The Department invites comments on 

whether additional revisions are 

required to the regulatory provisions 

governing local educational institutions 

in light of the military family leave 

provisions of H.R. 4986. 

Incorporation of New FMLA Leave 

Entitlements Into Proposed FMLA 

Regulatory Scheme 

In addition to the issues discussed 

above, the Department specifically 

requests comments on whether the 

FMLA leave entitlements in H.R. 4986 

should generally be incorporated into 

the FMLA regulatory scheme proposed 

in this NPRM, or whether stand-alone 

regulatory sections should be created for 

one or both of the military family leave 

provisions of H.R. 4986. The 

Department seeks comments on which 

of these approaches would be most 

beneficial for employees and employers. 

Although not specified in the military 

family leave provisions of H.R. 4986, the 

Department believes that a number of 

additional conforming changes may be 

required to the proposed FMLA 

regulations in this NPRM in order to 

fully integrate the military family leave 

provisions into FMLA’s regulatory 

scheme. For example, proposed FMLA 

regulatory § 825.100 may need to be 

changed to incorporate a discussion of 

the new leave entitlements into the 

general description of what the FMLA 

provides. Similarly, proposed FMLA 

regulatory § 825.112(a), which provides 

the general rule regarding the 

circumstances that will qualify for 

leave, may need to be changed to 

reference the two qualifying reasons for 

FMLA leave in H.R. 4986. 

The Department also plans on 

changing the proposed poster and 

general notice to incorporate the 

military family leave provisions of H.R. 

4986. The Department’s initial view is 

that these new qualifying reasons for 

FMLA leave should be incorporated into 

the poster and general notice discussed 

in proposed FMLA regulatory 

§ 825.300(a). However, the Department 

seeks comments on whether a separate 

poster and general notice should be 

created for military family leave. The 

proposed eligibility and designation 

notices in FMLA regulatory § 825.300(b) 

and (c) also will need to incorporate 

appropriate references to military family 

leave. The Department seeks comments 

on how these notices should be revised 

in order to incorporate these new FMLA 

leave entitlements. 

The Department seeks public 

comment on whether there are 

additional regulatory sections that 

should be reexamined in light of the 

military family leave provisions of H.R. 

4986. The questions set forth above are 

not intended to be an exhaustive list of 

issues that might arise when FMLA 

leave is taken to care for a covered 

servicemember or because of a 

qualifying exigency. The Department 

encourages the public to identify any 

other issues which should be 

considered during the rulemaking 

process. 

Paperwork Reduction Act 

In accordance with requirements of 

the Paperwork Reduction Act (PRA), 44 

U.S.C. 3501 et seq., and its attendant 

regulations, 5 CFR part 1320, the DOL 

seeks to minimize the paperwork 

burden for individuals, small 

businesses, educational and nonprofit 

institutions, Federal contractors, State, 

local and tribal governments, and other 

persons resulting from the collection of 

information by or for the agency. The 

PRA typically requires an agency to 

provide notice and seek public 

comments on any proposed collection of 

information contained in a proposed 

rule. See 44 U.S.C. 3506(c)(2)(B); 5 CFR 

1320.8. Persons are not required to 

respond to the information collection 

requirements as contained in this 

proposal unless and until they are 

approved by the OMB under the PRA at 

the final rule stage. 

This ‘‘paperwork burden’’ analysis 

estimates the burdens for the proposed 

regulations as drafted. In addition and 

as already discussed, the military family 

leave provisions of H.R. 4986 amend the 

FMLA to provide leave to eligible 

employees of covered employers to care 

for covered servicemembers and 

because of any qualifying exigency 

arising out of the fact that a covered 

family member is on active duty or has 

been notified of an impending call to 

active duty status in support of a 

contingency operation. The new 

statutory provisions will be codified at 

29 U.S.C. 2612(e)(2) and (e)(3). The 

earlier preamble discussion on Family 

Leave in Connection with Injured 

Members of the Armed Forces and 

Qualifying Exigencies Related to Active 

Duty provides a fuller explanation of the 

specific provisions and issues on which 

the Department seeks public comments. 

Because of the need to issue regulations 

as soon as possible so that employees 

and employers are aware of the 

respective rights and obligations 

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7934 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 

regarding military family leave under 

the FMLA, the Department anticipates 

issuing, after full consideration of the 

comments received in response to this 

Notice, final regulations that will 

include necessary revisions to the 

currently proposed FMLA information 

collections. 

As will be more fully explained later, 

many of the estimates in the analysis of 

the ‘‘paperwork’’ requirements derive 

from data developed for the Preliminary 

Regulatory Impact Analysis (PRIA) 

under E.O. 12866. However, the specific 

needs that the PRA analysis and PRIA 

are intended to meet often require that 

the data undergo a different analysis to 

estimate the burdens imposed by the 

‘‘paperwork’’ requirements from the 

analysis used in estimating the effect the 

regulations will have on the economy. 

Consequently, the differing treatment 

that must be undertaken in the PRA 

analysis and the PRIA may result in 

different results. For example, the PRA 

analysis measures the total burden of 

the information collection; however, the 

PRIA measures the incremental changes 

expected to result from the proposed 

regulatory changes. Thus, the PRA 

analysis will calculate a paperwork 

burden for an information collection 

that remains unchanged from the 

current regulation and the PRIA will not 

consider that item. Conversely, the 

regulatory definition for ‘‘collection of 

information’’ for PRA purposes 

specifically excludes the public 

disclosure of information originally 

supplied by the Federal government to 

the recipient for the purpose of 

disclosure to the public. 5 CFR 

1320.3(c)(2). The PRIA, however, may 

need to consider the impact of any 

regulatory changes in such notifications 

provided by the government. For 

example, in the context of the proposed 

FMLA changes, the general notice that 

employers currently must develop and 

provide to their workers is proposed to 

be replaced with a notice using wording 

provided by the DOL that employers 

must periodically provide to their 

employees. This proposed DOLprovided FMLA notice would not be a 

‘‘collection of information’’ for PRA 

purposes; therefore, the proposal 

reduces burden for PRA purposes. The 

PRIA, however, must address the 

economic impact of the frequency with 

which employers must provide the 

DOL’s FMLA notice under the proposed 

change to the regulations. Finally, the 

PRA definition of ‘‘burden’’ can exclude 

the time, effort, and financial resources 

necessary to comply with a collection of 

information that would be incurred by 

persons in the normal course of their 

activities (e.g., in compiling and 

maintaining business records). 5 CFR 

1320.3(b)(2). The PRIA, however, must 

consider the economic impact of any 

changes in the proposed regulation. 

Circumstances Necessitating 

Collection: The FMLA requires private 

sector employers of 50 or more 

employees and public agencies to 

provide up to 12 weeks of unpaid, jobprotected leave during any 12-month 

period to ‘‘eligible’’ employees for 

certain family and medical reasons (i.e., 

for birth of a son or daughter, and to 

care for the newborn child; for 

placement with the employee of a son 

or daughter for adoption or foster care; 

to care for the employee’s spouse, son, 

daughter, or parent with a serious health 

condition; and because of a serious 

health condition that makes the 

employee unable to perform the 

functions of the employee’s job). FMLA 

section 404 requires the Secretary of 

Labor to prescribe such regulations as 

necessary to enforce this Act. 29 U.S.C. 

2654. The proposed regulations provide 

for the following information 

collections, many of which are thirdparty notifications between employers 

and employees. 

A. Employee Notice of Need for 

FMLA Leave [29 U.S.C. 2612(e); 29 CFR 

825.100(d), 825.301(b), 825.302, and 

825.303]. 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 under the facts and 

circumstances of the particular case. In 

neither case must an employee 

expressly assert rights under the FMLA 

or even mention the FMLA. The 

employee must, however, provide 

information that indicates that a 

condition renders the employee unable 

to perform the functions of the job, or 

if the leave is for a family member, that 

the condition renders the family 

member unable to perform daily 

activities; the anticipated duration of 

the absence; and whether the employee 

or the employee’s family member 

intends to visit a health care provider or 

has a condition for which the employee 

or the employee’s family member is 

under the continuing care of a health 

care provider. An employer, generally, 

may require an employee to comply 

with its usual and customary notice and 

procedural requirements for requesting 

leave. 

B. Notice to Employee of FMLA 

Eligibility [29 CFR 825.219 and 

825.300(b)]. When an employee requests 

FMLA leave or when the employer 

acquires knowledge that an employee’s 

leave may be for an FMLA-qualifying 

condition, the employer must notify the 

employee within five business days of 

the employee’s eligibility to take FMLA 

leave and any additional requirements 

for qualifying for such leave. This 

eligibility notice must provide 

information regarding the employee’s 

eligibility for FMLA leave, detail the 

specific responsibilities of the 

employee, and explain any 

consequences of a failure to meet these 

responsibilities. The employer generally 

must provide the notice the first time in 

each six-month period that an employee 

gives notice of the need for FMLA leave; 

however, if the specific information 

provided by the notice changes with 

respect to a subsequent period of FMLA 

leave, the employer would need to 

provide an updated notice. 

C. Medical Certification and 

Recertification [29 U.S.C. 2613, 

2614(c)(3); 29 CFR 825.100(d) and 

825.305 through 825.308]. An employer 

may require that an employee’s leave to 

care for the employee’s seriously-ill 

spouse, son, daughter, or parent, or due 

to the employee’s own serious health 

condition that makes the employee 

unable to perform one or more essential 

functions of the employee’s position, be 

supported by a certification issued by 

the health care provider of the eligible 

employee or of the ill family member. 

The proposal provides that the 

employer may contact the employee’s 

health care provider for purposes of 

clarification and authentication of the 

medical certification (whether initial 

certification or recertification) after the 

employer has given the employee an 

opportunity to cure any deficiencies. In 

addition, an employer must advise an 

employee whenever it finds a 

certification incomplete or insufficient 

and state in writing what additional 

information is necessary to make the 

certification complete and sufficient. An 

employer, at its own expense and 

subject to certain limitations, also may 

require an employee to obtain a second 

and third medical opinion. In addition, 

an employer may also request 

recertification under certain conditions. 

The employer must provide the 

employee at least 15 calendar days to 

provide the initial certification and any 

subsequent recertification. The 

proposed regulations would provide 

that the employer must provide seven 

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calendar days (unless not practicable 

under the particular circumstances 

despite the employee’s diligent good 

faith efforts) to cure any deficiency 

identified by the employer. 

D. Notice to Employees of FMLA 

Designation [29 CFR 825.300(c) and 

825.301(a)]. When the employer has 

enough information to determine 

whether the leave qualifies as FMLA 

leave (after receiving a medical 

certification, for example), the employer 

must notify the employee within five 

business days of making such 

determination whether the leave has or 

has not been designated as FMLA leave 

and the number of hours, days or weeks 

that will be counted against the 

employee’s FMLA leave entitlement. If 

it is not possible to provide the hours, 

days or weeks that will be counted 

against the employee’s FMLA leave 

entitlement (such as in the case of 

unforeseeable intermittent leave), then 

such information must be provided 

every 30 days to the employee if leave 

is taken during the prior 30-day period. 

If the employer requires paid leave to be 

substituted for unpaid leave, or that 

paid leave taken under an existing leave 

plan be counted as FMLA leave, this 

designation also must be made at the 

time of the FMLA designation. 

E. Fitness-for-Duty Medical 

Certification [29 U.S.C. 2614(a)(4); 29 

CFR 825.100(d) and 825.310]. As a 

condition of restoring an employee 

whose FMLA leave was occasioned by 

the employee’s own serious health 

condition that made the employee 

unable to perform the employee’s job, 

an employer may have a uniformlyapplied policy or practice that requires 

all similarly-situated employees (i.e., 

same occupation, same serious health 

condition) who take leave for such 

conditions to obtain and present 

certification from the employee’s health 

care provider that the employee is able 

to resume work. The employee has the 

same obligations to participate and 

cooperate in providing a complete and 

sufficient certification to the employer 

in the fitness-for-duty certification 

process as in the initial certification 

process. The DOL is also proposing in 

§ 825.310(g) that an employer be 

permitted to require an employee to 

furnish a fitness-for-duty certificate 

every 30 days if an employee has used 

intermittent leave during that period 

and reasonable safety concerns exist. 

F. Notice to Employees of Change of 

12-Month Period for Determining FMLA 

Entitlement [29 CFR 825.200(d)(1)]. An 

employer generally must choose a single 

uniform method from four options 

available under the regulations for 

determining the 12-month period in 

which the 12-week entitlement occurs 

for purposes of FMLA leave. An 

employer wishing to change to another 

alternative is required to give at least 60 

days’ notice to all employees. 

G. Key Employee Notification [29 

U.S.C. 2614(b)(1)(B); 29 CFR 825.219 

and 825.300(b)(3)(vi)]. An employer that 

believes that it may deny reinstatement 

to a key employee must give written 

notice to the employee at the time the 

employee gives notice of the need for 

FMLA leave (or when FMLA leave 

commences, if earlier) that he or she 

qualifies as a key employee. At the same 

time, the employer must also fully 

inform the employee of the potential 

consequences with respect to 

reinstatement and maintenance of 

health benefits if the employer should 

determine that substantial and grievous 

economic injury to the employer’s 

operations would result if the employer 

were to reinstate the employee from 

FMLA leave. If the employer cannot 

immediately give such notice, because 

of the need to determine whether the 

employee is a key employee, the 

employer must give the notice as soon 

as practicable after receiving the 

employee’s notice of a need for leave (or 

the commencement of leave, if earlier). 

If an employer fails to provide such 

timely notice it loses its right to deny 

restoration, even if substantial and 

grievous economic injury will result 

from reinstatement. 

As soon as an employer makes a good 

faith determination—based on the facts 

available—that substantial and grievous 

economic injury to its operations will 

result if a key employee who has given 

notice of the need for FMLA leave or is 

using FMLA leave is reinstated, the 

employer must notify the employee in 

writing of its determination; that the 

employer cannot deny FMLA leave; and 

that the employer intends to deny 

restoration to employment on 

completion of the FMLA leave. The 

employer must serve this notice either 

in person or by certified mail. This 

notice must explain the basis for the 

employer’s finding that substantial and 

grievous economic injury will result, 

and, if leave has commenced, must 

provide the employee a reasonable time 

in which to return to work, taking into 

account the circumstances, such as the 

length of the leave and the urgency of 

the need for the employee to return. 

An employee may still request 

reinstatement at the end of the leave 

period, even if the employee did not 

return to work in response to the 

employer’s notice. The employer must 

then determine whether there will be 

substantial and grievous economic 

injury from reinstatement, based on the 

facts at that time. If the employer 

determines that substantial and grievous 

economic injury will result from 

reinstating the employee, the employer 

must notify the employee in writing (in 

person or by certified mail) of the denial 

of restoration. 

H. Periodic Employee Status Reports 

[29 CFR 825.300(b)(4) and 825.309]. An 

employer may require an employee to 

provide periodic reports regarding the 

employee’s status and intent to return to 

work. 

I. Notice to Employee of Pending 

Cancellation of Health Benefits [29 CFR 

825.212(a)]. Unless an employer 

establishes a policy providing a longer 

grace period, an employer’s obligation 

to maintain health insurance coverage 

ceases under FMLA if an employee’s 

premium payment is more than 30 days 

late. In order to drop the coverage for an 

employee whose premium payment is 

late, the employer must provide written 

notice to the employee that the payment 

has not been received. Such notice must 

be mailed to the employee at least 15 

days before coverage is to cease and 

advise the employee that coverage will 

be dropped on a specified date at least 

15 days after the date of the letter unless 

the payment has been received by that 

date. 

J. Documenting Family Relationship 

[29 CFR 825.122(f)]. An employer may 

require an employee giving notice of the 

need for leave to provide reasonable 

documentation or statement of family 

relationship. This documentation may 

take the form of a child’s birth 

certificate, a court document, a sworn 

notarized statement, a submitted or 

signed tax return, etc. The employer is 

entitled to examine documentation such 

as a birth certificate, etc., but the 

employee is entitled to the return of the 

official document submitted for this 

purpose. 

K. Recordkeeping [29 U.S.C. 2616; 29 

CFR 825.500]. The FMLA provides that 

employers shall make, keep, and 

preserve records pertaining to the FMLA 

in accordance with the recordkeeping 

requirements of Fair Labor Standards 

Act section 11(c), 29 U.S.C. 211(c), and 

regulations issued by the Secretary of 

Labor. This statutory authority provides 

that no employer or plan, fund, or 

program shall be required to submit 

books or records more than once during 

any 12-month period unless the DOL 

has reasonable cause to believe a 

violation of the FMLA exists or is 

investigating a complaint. 

Employers must maintain basic 

payroll and identifying employee data, 

including name, address, and 

occupation; rate or basis of pay and 

terms of compensation; daily and 

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weekly hours worked per pay period; 

additions to or deductions from wages; 

and total compensation paid; dates 

FMLA leave is taken by FMLA eligible 

employees (available from time records, 

requests for leave, etc., if so designated). 

Leave must be designated in records as 

FMLA leave; leave so designated may 

not include leave required under State 

law or an employer plan which is not 

also covered by FMLA; if FMLA leave 

is taken by eligible employees in 

increments of less than one full day, the 

hours of the leave; copies of employee 

notices of leave furnished to the 

employer under FMLA, if in writing, 

and copies of all eligibility notices given 

to employees as required under FMLA 

and these regulations; any documents 

(including written and electronic 

records) describing employee benefits or 

employer policies and practices 

regarding the taking of paid and unpaid 

leaves; premium payments of employee 

benefits; records of any dispute between 

the employer and an eligible employee 

regarding designation of leave as FMLA 

leave, including any written statement 

from the employer or employee of the 

reasons for the designation and for the 

disagreement. 

Covered employers with no eligible 

employees must maintain the basic 

payroll and identifying employee data 

already discussed. Covered employers 

that jointly employ workers with other 

employers must keep all the records 

required by the regulations with respect 

to any primary employees, and must 

keep the basic payroll and identifying 

employee data with respect to any 

secondary employees. 

If FMLA-eligible employees are not 

subject to FLSA recordkeeping 

regulations for purposes of minimum 

wage or overtime compliance (i.e., not 

covered by, or exempt from, FLSA), an 

employer need not keep a record of 

actual hours worked (as otherwise 

required under FLSA, 29 CFR 

516.2(a)(7)), provided that: eligibility for 

FMLA leave is presumed for any 

employee who has been employed for at 

least 12 months; and with respect to 

employees who take FMLA leave 

intermittently or on a reduced leave 

schedule, the employer and employee 

agree on the employee’s normal 

schedule or average hours worked each 

week and reduce their agreement to a 

written record. 

Employers must maintain records and 

documents relating to any medical 

certification, recertification or medical 

history of an employee or employee’s 

family member, created for FMLA 

purposes as confidential medical 

records in separate files/records from 

the usual personnel files. Employers 

must also maintain such records in 

conformance with any applicable ADA 

confidentiality requirements; except 

that: supervisors and managers may be 

informed regarding necessary 

restrictions on the work or duties of an 

employee and necessary 

accommodations; first aid and safety 

personnel may be informed, when 

appropriate, if the employee’s physical 

or medical condition might require 

emergency treatment; and government 

officials investigating compliance with 

the FMLA, or other pertinent law, shall 

be provided relevant information upon 

request. 

The FLSA recordkeeping 

requirements, contained in 29 CFR part 

516, are currently approved under 

Office of Management and Budget 

(OMB) control number 1215–0017; 

consequently, this information 

collection does not duplicate their 

burden, despite the fact that for the 

administrative ease of the regulated 

community this information collection 

restates them. 

L. Military Family Leave [29 U.S.C. 

2612(e), 2613]: The military family leave 

provisions of H.R. 4986 extend to the 

new leave provision related to care for 

a servicemember the FMLA’s existing 

requirements for employees to provide 

advance notice when the need for leave 

is foreseeable based on planned medical 

treatment, and for making reasonable 

efforts to schedule planned medical 

treatment so as not to disrupt unduly 

the employer’s operations. The military 

family leave provisions of H.R. 4986 

also provide for new notice 

requirements for leave taken due to 

qualifying exigencies whenever the 

need for such leave is foreseeable. The 

military family leave provisions of H.R. 

4986 require that eligible employees 

provide notice to the employer that is 

‘‘reasonable and practicable’’ in these 

circumstances. 

The military family leave provisions 

of H.R. 4986 allow employers to apply 

the FMLA’s existing medical 

certification requirements for serious 

health conditions to leave taken to care 

for a covered servicemember. In 

addition, the military family leave 

provisions of H.R. 4986 also permit the 

Secretary of Labor to prescribe a new 

certification requirement to leave taken 

because of a qualifying exigency arising 

out of a servicemember’s active duty or 

call to active duty. 

The earlier preamble discussion on 

Family Leave in Connection with 

Injured Members of the Armed Forces 

and Qualifying Exigencies Related to 

Active Duty provides a fuller 

explanation of the specific provisions 

and issues on which the Department 

seeks public comments. 

Purpose and Use: The WHD has 

created optional use Forms WH–380, 

WH–381, and the proposed WH–382 to 

assist employees and employers in 

meeting their FMLA third-party 

notification obligations. Form WH–380 

allows an employee requesting FMLA 

leave based on a serious health 

condition to satisfy the statutory 

requirement to furnish, upon the 

employer’s request, a medical 

certification (including a second or third 

opinion and recertification) from the 

health care provider. See §§ 825.306 and 

825.307 and Appendices B, D, and E. 

Form WH–381 allows an employer to 

satisfy the regulatory requirement to 

provide employees taking FMLA leave 

with written notice detailing specific 

expectations and obligations of the 

employee and explaining any 

consequences of a failure to meet these 

obligations. See § 825.301(b). Form WH–

382 allows an employer to meet its 

obligation to designate an absence as 

FMLA leave. See §§ 825.300(c) and 825 

.301(a). While the use of the DOL forms 

is optional, the regulations require 

employers and employees to make the 

third-party disclosures that the forms 

cover. The FMLA third-party 

disclosures ensure that both employers 

and employees are aware of and can 

exercise their rights and meet their 

respective obligations under FMLA. 

The recordkeeping requirements are 

necessary in order for the DOL to carry 

out its statutory obligation under FMLA 

section 106 to investigate and ensure 

employer compliance. The WHD uses 

these records to determine employer 

compliance. 

Information Technology: The 

proposed regulations continue to 

prescribe no particular order or form of 

records. See § 825.500(b). The 

preservation of records in such forms as 

microfilm or automated word or data 

processing memory is acceptable, 

provided the employer maintains the 

information and provides adequate 

facilities to the DOL for inspection, 

copying, and transcription of the 

records. In addition, photocopies of 

records are also acceptable under the 

regulations. Id. 

Aside from the basic requirement that 

all third-party notifications be in 

writing, with a possible exception for 

the employee’s FMLA request that 

depends on the employer’s leave 

policies, there are no restrictions on the 

method of transmission. Respondents 

may meet many of their notification 

obligations by using DOL-prepared 

publications available on the WHD Web 

site. These forms are in a PDF, fillable 

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Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 7937 

format for downloading and printing. 

The employers may keep recordkeeping 

requirements covered by this 

information collection in any form, 

including electronic. 

Minimizing Duplication: The FMLA 

information collections do not duplicate 

other existing information collections. 

In order to provide all relevant FMLA 

information in one set of requirements, 

the recordkeeping requirements restate a 

portion of the records employers must 

maintain under the FLSA. Employers do 

not need to duplicate the records when 

basic records maintained to meet FLSA 

requirements also document FMLA 

compliance. The additional records 

required by the FMLA regulations, with 

the exception of specifically tracking 

FMLA leave, are records that employers 

ordinarily maintain for monitoring 

employee leave in the usual and 

ordinary course of business. The 

regulations do impose, however, a threeyear minimum time limit that 

employers must make the records 

available for inspection, copying, and 

transcription by the DOL. The DOL 

minimizes the FMLA information 

collection burden by accepting records 

maintained by employers as a matter of 

usual or customary business practices. 

The DOL also accepts records kept due 

to requirements of other governmental 

requirements (e.g., records maintained 

for tax and payroll purposes). The DOL 

has reviewed the needs of both 

employers and employees to determine 

the frequency of the third-party 

notifications covered by this collection 

to establish frequencies that provide 

timely information with the least 

burden. The DOL has further minimized 

burden by developing prototype notices 

for many of the third-party disclosures 

covered by this information collection. 

Agency Need: The DOL is assigned a 

statutory responsibility to ensure 

employer compliance with the FMLA. 

The DOL uses records covered by the 

FMLA information collection to 

determine compliance, as required of 

the agency by FMLA section 107(b)(1). 

29 U.S.C. 2617(b)(1). Without the thirdparty notifications required by the law 

and/or regulations, employers and 

employees would have difficulty 

knowing their FMLA rights and 

obligations. 

Special Circumstances: Because of the 

unforeseeable and often urgent nature of 

the need for FMLA leave, notice and 

response times must be of short 

duration to ensure that employers and 

employees are sufficiently informed and 

can exercise their FMLA rights and 

obligations. The discussion above 

outlines the circumstances necessitating 

the information collection and provides 

the details of when employees and 

employers must provide certain notices. 

Employers must maintain employee 

medical information they obtain for 

FMLA purposes as confidential medical 

records in separate files/records from 

the usual personnel files. Employers 

must also maintain such records in 

conformance with any applicable ADA 

confidentiality requirements, except 

that: supervisors and managers may be 

informed regarding necessary 

restrictions on the work or duties of an 

employee and necessary 

accommodations; first aid and safety 

personnel may be informed (when 

appropriate) if the employee’s physical 

or medical condition might require 

emergency treatment; and government 

officials investigating compliance with 

FMLA (or other pertinent law) shall be 

provided relevant information upon 

request. 

Public Comments: On December 1, 

2006, the DOL published a Request for 

Information (RFI) in the Federal 

Register inviting public comment about 

the FMLA paperwork requirements and 

other issues. 71 FR 69504. On June 28, 

2007, the DOL published a report that 

summarized the comments received in 

response to the RFI. 72 FR 35550. The 

DOL also engaged various stakeholders 

representing the interests of employees, 

employers, and healthcare providers to 

discuss the FMLA information 

collection requirements. The proposed 

FMLA regulations reflect the results of 

these efforts. 

The DOL seeks additional public 

comments regarding the burdens 

imposed by information collections 

contained in this proposed rule. In 

particular, the DOL seeks comments 

that: evaluate whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the agency, including 

whether the information will have 

practical utility; evaluate the accuracy 

of the agency’s estimate of the burden of 

the proposed collection of information, 

including the validity of the 

methodology and assumptions used; 

enhance the quality, utility and clarity 

of the information to be collected; and 

minimize the burden of the collection of 

information on those who are to 

respond, including through the use of 

appropriate automated, electronic, 

mechanical, or other technological 

collection techniques or other forms of 

information technology, e.g., permitting 

electronic submissions of responses. 

Commenters may send their views about 

these information collections to the DOL 

in the same way as all other comments 

(e.g., through the regulations.gov Web 

site). All comments received will be 

made a matter of public record, and 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. 

An agency may not conduct an 

information collection unless it has a 

currently valid OMB approval, and the 

DOL has submitted the identified 

information collections contained in the 

proposed rule to the OMB for review 

under the PRA under Control Number 

1215–0181. See 44 U.S.C. 3507(d); 5 

CFR 1320.11. While much of the 

information provided to the OMB in 

support of the information collection 

request appears in this preamble, 

interested parties may obtain a copy of 

the full supporting statement by sending 

a written request to the mail address 

shown in the ADDRESSES section at the 

beginning of this preamble or by visiting 

the http://www.reginfo.gov/public/do/ 

PRAMain Web site. 

In addition to having an opportunity 

to file comments with the DOL, 

comments about the paperwork 

implications of the proposed regulations 

may be addressed to the OMB. 

Comments to the OMB should be 

directed to: Office of Information and 

Regulatory Affairs, Attention OMB Desk 

Officer for the Employment Standards 

Administration (ESA), Office of 

Management and Budget, Room 10235, 

Washington, DC 20503, Telephone: 

202–395–7316/Fax: 202–395–6974 

(these are not toll-free numbers). 

Confidentiality: The DOL makes no 

assurances of confidentiality to 

respondents. Much of the information 

covered by this information collection 

consists of third-party disclosures. 

Employers generally must maintain 

records and documents relating to any 

medical certification, recertification, or 

medical history of an employee or 

employee’s family members as 

confidential medical records in separate 

files/records from usual personnel files. 

Employers must also generally maintain 

such records in conformance with any 

applicable ADA confidentiality 

requirements. As a practical matter, the 

DOL would only disclose agency 

investigation records of materials 

subject to this collection in accordance 

with the provisions of the Freedom of 

Information Act, 5 U.S.C. 552, and the 

attendant regulations, 29 CFR part 70, 

and the Privacy Act, 5 U.S.C. 552a, and 

its attendant regulations, 29 CFR part 

71. 

Hours Burden Estimates: The DOL 

bases the following burden estimates on 

the estimates the PRIA presented 

elsewhere in this document, except as 

otherwise noted. The DOL estimates 

77.1 million employees were eligible for 

FMLA leave in 2005. The FMLA applied 

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7938 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 

to approximately 415,000 private 

business establishments and State and 

local governments in 2005. See County 

Business Patterns, 2005, U.S. Census 

Bureau, http://censtats.census.gov/cgibin/cbpnaic/cbpsel.pl; and Census of 

Governments, Volume 3, Public 

Employment, Compendium of Public 

Employment: 2002 at 248–249, http:// 

www.census.gov/prod/2004pubs/ 

gc023x2.pdf. The PRIA data also suggest 

7 million employees took FMLA leave 

in 2005. 

A. Employee Notice of Need for 

FMLA Leave. While employees 

normally will provide general 

information regarding their absences, 

the regulations may impose 

requirements for workers to provide 

their employers with more detailed 

information than might otherwise be the 

case. The DOL estimates that providing 

this additional information will take 

approximately two minutes per 

employee notice of the need to take 

FMLA leave. In addition, Westat Report 

data indicate about 75 percent of FMLA 

users take leave in a single block, 15 

percent take leave in two blocks, and 10 

percent take leave in more than two 

blocks. See 2000 Westat Report at 2–3, 

http://www.dol.gov/esa/whd/fmla/fmla/ 

chapter2.pdf. The DOL, consequently, 

estimates FMLA leave takers, on a per 

capita basis, annually provide 1.5 

notices of the need for FMLA leave. In 

addition, the PRIA estimates some 

employees who are not eligible for 

FMLA protections will make some 

2,200,000 requests for FMLA leave. 

(7,000,000 FMLA covered employee 

respondents × 1.5 valid responses 

[i.e., notices to employers]) + 

2,200,000 ineligible FMLA requests = 

12,700,000 total responses 

12,700,000 total responses × 2 minutes/ 

60 minutes per hour = 423,333 hours 

B. Notice to Employee of FMLA 

Eligibility. The DOL estimates that each 

written notice to an employee of FMLA 

eligibility, rights, and responsibilities 

takes approximately ten minutes. 

Consistent with the estimates for the 

number of notices employees provide, 

the DOL estimates that employers will 

provide 12,700,000 FMLA eligibility 

notices to employees. Employers may 

use optional Form WH–381 to satisfy 

this requirement. 

12,700,000 total responses × 10 

minutes/60 minutes per hour = 

2,116,667 hours 

C. Medical Certification and 

Recertification. The DOL estimates 81.5 

percent of employees taking FMLA 

leave do so because of their own serious 

health condition or that of a family 

member. See 2000 Westat Report at 2–

5, http://www.dol.gov/esa/whd/fmla/ 

fmla/chapter2.pdf. The DOL also 

estimates 92 percent of these employees 

provide medical certifications. See 2000 

Westat Report at A–2–51. Additionally, 

the DOL estimates that second or third 

opinions and/or recertifications add 15 

percent to the total number of 

certifications and that employees spend 

an average of 20 minutes in obtaining 

the certifications. Employers may have 

employees use optional Form WH–380 

to satisfy this requirement. 

7,000,000 employees taking FMLA leave 

× 81.5% rate for serious health 

condition × 92% asked to provide 

initial medical certifications = 

5,248,600 employee respondents 

5,248,600 employee respondents × 1.15 

responses = 6,035,890 total responses 

6,035,890 total responses × 20 minutes/ 

60 minutes per hour = 2,011,963 

hours 

The DOL associates no paperwork 

burden with the portion of this 

information collection employers 

complete, since—even absent the 

FMLA—similar information would 

customarily appear in their internal 

instructions requesting a medical 

certification or recertification. The DOL 

accounts for health care provider 

burdens to complete these certifications 

as a ‘‘maintenance and operation’’ cost 

burden, discussed later. 

D. Notice to Employees of FMLA 

Designation. The DOL estimates that 

each written FMLA designation notice 

takes approximately ten minutes and 

that there are 10,500,000 FMLA leaves 

taken each year. Employers can 

designate FMLA leave at the same time 

they provide the eligibility notice about 

25 percent of the time, based on the 

number of instances where employers 

request a medical certification. 

According to a 2005 WorldatWork 

survey, 28.6 percent of absences result 

from either chronic or permanent/long 

term conditions. (See FMLA 

Perspectives and Practices: Survey of 

WorldatWork Members, April 2005, 

WorldatWork, Figure 9a, p. 8.) 

Assuming that this applies to FMLA 

leave takers, the DOL estimates that the 

notices will have to be sent to about 

2,000,000 workers (i.e., 28.6% of 7 

million) taking FMLA for either chronic 

or permanent/long term conditions. For 

purposes of estimating the paperwork 

burden, the DOL assumes that for 

workers with chronic conditions (either 

temporary or permanent) ten additional 

notices will have to be provided each 

year to each of these employees. 

7,875,000 initial notices + 20,000,000 

additional notices = 27,875,000 total 

responses 

27,875,000 total responses × 10 

minutes/60 minutes per hour = 

4,645,833 hours 

E. Fitness-for-Duty Medical 

Certification. The DOL estimates that 

367,000 employees will each have to 

provide one fitness for duty certification 

and 44,000 employees will each have to 

provide three such certifications, for a 

total of 499,000 certifications provided 

by 411,000 employees and that each 

fitness for duty certification will require 

ten minutes of the employee’s time. 

499,000 responses × 10 minutes/60 

minutes per hour = 83,167 hours 

The DOL accounts for health care 

provider burdens to complete these 

certifications as a ‘‘maintenance and 

operation’’ cost burden, discussed later. 

F. Notice to Employees of Change of 

12-Month Period for Determining FMLA 

Entitlement. The DOL estimates that 

annually 10 percent of FMLA covered 

employers choose to change their 12- 

month period for determining FMLA 

eligibility and must notify employees of 

the change, requiring approximately 10 

minutes per change. 

415,000 covered employers × 10% 

response rate = 41,500 respondents 

41,500 respondents × 10 minutes/60 

minutes = 6917 hours 

G. Key Employee Notification. The 

‘‘key employee’’ status notification to an 

employee is part of the employee 

eligibility notice; accordingly, the DOL 

associates no additional burden for the 

initial notification. The DOL estimates 

that annually 10 percent of employers 

notify one employee of the intent not to 

restore the employee at the conclusion 

of FMLA leave. In addition, the DOL 

estimates half of these cases will require 

the employer to issue a second notice 

from the employer to address a key 

employee’s subsequent request for 

reinstatement. Finally, the DOL 

estimates each key employee 

notification takes approximately 5 

minutes. The DOL associates no 

paperwork burden with the employee 

requests, since these employees would 

ordinarily ask for reinstatement even if 

the rule were not to exist. 

415,000 covered employers × 10% 

response rate = 41,500 employer 

respondents 

41,500 employer respondents × 1.5 

responses = 62,250 total responses 

62,250 total responses × 5 minutes/60 

minutes = 5188 hours 

H. Periodic Employee Status Reports. 

The DOL estimates employers require 

periodic reports from 25 percent of 

FMLA leave users (based on the 

percentage of FMLA leave takers with 

absences lasting more than 30 days). See 

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2000 Westat Report at A–2–29, http:// 

www.dol.gov/esa/whd/fmla/fmla/ 

appendixa-2.pdf. The DOL also 

estimates a typical employee would 

normally respond to an employer’s 

request for a status report; however, to 

account for any additional burden the 

regulations might impose, the DOL 

estimates a 10 percent response rate and 

a burden of two minutes per response. 

The DOL also estimates that each such 

respondent annually provides two 

periodic status reports. While the DOL 

believes most employers would only 

seek these reports in accordance with 

customary business practices, the 

agency has accounted for any potential 

additional employer burden in the 

‘‘Eligibility Notice.’’

7,000,000 FMLA leave takers × 25% rate 

of employer requests × 10% 

regulatory burden = 175,000 

employee respondents 

175,000 employee respondents × 2 

responses = 350,000 total responses 

350,000 total responses × 2 minutes/60 

minutes per hour = 11,667 hours 

I. Notice to Employee of Pending 

Cancellation of Health Benefits. The 

DOL estimates the regulations require 

employers send notifications of not 

having received health insurance 

premiums to 2% of leave takers, based 

on the number of employees indicating 

they have lost benefits. For purposes of 

estimating the paperwork burden 

associated with this information 

collection, the DOL expects that unique 

respondents would send all responses. 

See 2000 Westat Report at 4–4, http:// 

www.dol.gov/esa/whd/fmla/fmla/ 

chapter4.pdf. The DOL also estimates 

each notification will take 5 minutes. 

7,000,000 FMLA leave takers × 2% rate 

notification = 140,000 respondents 

and responses 

140,000 responses × 5 minutes/60 

minutes per hour = 11,667 hours 

J. Documenting Family Relationships. 

The DOL estimates 50% of FMLA leave 

takers do so for ‘‘family’’ related 

reasons, such as caring for a newborn or 

recently adopted child or a qualifying 

family member with a serious health 

condition. See 2000 Westat Report at 2–

5, http://www.dol.gov/esa/whd/fmla/ 

fmla/chapter2.pdf. The DOL also 

estimates employers require additional 

documentation to support a family 

relationship in 5 percent of these cases, 

and the additional documentation 

requires 20 minutes. 

7,000,000 employees taking FMLA leave 

× 50% rate for family leave × 5% 

response rate = 175,000 employee 

respondents 

175,000 × 20 minutes/60 minutes per 

hour = 58,333 hours 

K. General Recordkeeping. The DOL 

estimates the FMLA imposes an 

additional general recordkeeping 

burden on each employer that equals 

1.25 minutes for each notation of an 

employee absence. 

10,500,000 total records × 1.25 minutes/ 

60 minutes per hour = 218,750 hours 

L. Military Family Leave. This 

‘‘paperwork burden’’ analysis estimates 

the burdens for the proposed regulations 

as drafted. The Department anticipates 

issuing, after full consideration of the 

comments received in response to the 

Proposed Rule, final regulations that 

will include necessary revisions to the 

currently proposed FMLA information 

burden estimates to account for the 

military family leave provisions of H.R. 

4986. 

GRAND TOTAL ANNUAL BURDEN 

HOURS = 9,593,485 HOURS 

Persons responding to the various 

FMLA information collections may be 

employees of any of a wide variety of 

businesses. Absent specific wage data 

regarding respondents, the DOL has 

used the average hourly rate of nonsupervisory workers on non-farm 

payrolls for September 2007 of $17.62 

plus 40 percent for fringe benefits to 

estimate respondent costs. See The 

Employment Situation, November 2007, 

at DOL, Bureau of Labor Statistics (BLS) 

(http://www.bls.gov/news.release/ 

archives/empsit_12072007.pdf). The 

DOL estimates total annual respondent 

costs for the value of their time to be 

$236,652,088 ($17.62 × 1.4 × 9,593,485 

hours). 

Other Respondent Cost Burdens 

(Maintenance and Operation): 

Employees seeking FMLA leave for a 

serious health condition must obtain, 

upon their employer’s request, a 

certification of the serious health 

condition from a health care provider. 

Often the heath care provider’s office 

staff completes the form for the 

provider’s signature. In other cases, the 

health care provider personally 

completes it. While most health care 

providers do not charge for completing 

these certifications, some do. The DOL 

estimates completion of Form WH–380 

to take about 20 minutes and a fitnessfor-duty certification to require 10 

minutes; thus, the time would equal the 

respondent’s time in obtaining the 

certification. The DOL has used the 

2005 average hourly wage rate for a 

physician’s assistant of $36.49 plus 40 

percent in fringe benefits to compute a 

$17.03 cost for Form WH–380 ($51.09 × 

20 minutes/60 minutes per hour) and 

$8.52 cost for fitness-for-duty 

certifications ($51.09 × 10 minutes/60 

minutes per hour) See National 

Compensation Survey 2005, DOL, BLS. 

The DOL also attributes an average 

$1.00 cost for each documentation of a 

family relationship to cover notary costs 

when an employee does not have other 

documentation available. 

6,035,890 total medical certifications x $17.03 cost per certification = ........................................................................................ $102,791,207 

499,000 fitness-for-duty certifications x $8.52 cost per certification = .......................................................................................... 4,251,480 

+175,000 documentations of family relationship x $1.00 each = ................................................................................................. 175,000 

Total Maintenance and Operations Cost Burden for Respondents ....................................................................................... 107,217,687 

Federal Costs: The Federal costs that 

the DOL associates with this 

information collection relate to printing/ 

duplicating and mailing the subject 

forms. The DOL also estimates it will 

annually provide an average of one copy 

of each form covered by this 

information collection to each FMLAcovered employer, and that the agency 

will mail all forms simultaneously to 

any given requestor. The DOL further 

estimates information technology costs 

will offset some of the printing and 

duplicating costs in an equal amount; 

therefore, the agency is presenting only 

the costs of the latter: 

415,000 WH–380s (Certification of Health Care Provider) × 4 pages = ............................................................................... 1,660,000 pages. 

415,000 WH–381s (Notice to Employee of FMLA Eligibility) × 2 pages = ........................................................................... 830,000 pages. 

415,000 WH–382s (Notice to Employee of FMLA Designation) × 1 page = ........................................................................ 415,000 pages. 

Total Forms = 1,245,000, Total pages = 2,905,000.

2,905,000 pages × $0.03 printing costs = ............................................................................................................... $87,150. 

1,245,000 forms × $0.03 envelopes = .................................................................................................................... $37,350. 

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7940 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 

16 ‘‘A Workable Balance: Report to Congress on 

Family and Medical Leave Policies.’’ The report is 

available at: http://www.dol.gov/esa/whd/ 

fmlacoments.htm. 

17Westat is a statistical survey research 

organization serving agencies of the U.S. 

Government, as well as businesses, foundations, 

and State and local governments. 

18The report is available at http://www.dol.gov/ 

esa/whd/fmlacomments.htm. 

19The Department received many comments 

about how the 2000 Westat Report in response to 

the RFI. 

20The report is available at: www.dol.gov/esa/ 

whd/Fmla2007Report.htm and 72 FR at 35550. 

1,245,000 forms × $0.41 postage = ........................................................................................................................ $510,450. 

Total Estimated Annual Federal Costs = ......................................................................................................... $634,950. 

Displaying OMB Expiration Date: The 

DOL will display the expiration dates 

for OMB clearances on the DOL forms 

cleared under this information 

collection. 

Executive Order 12866, the Small 

Business Regulatory Enforcement 

Fairness Act, and the Regulatory 

Flexibility Act 

This rule has been drafted and 

reviewed in accordance with Executive 

Order 12866, Section 1(b), Principles of 

Regulation. The Department has 

preliminarily determined that this 

proposed rule is an ‘‘economically 

significant’’ regulatory action under 

Section 3(f)(1) of Executive Order 

12866, based on the analysis presented 

below. As a result, the Office of 

Management and Budget has reviewed 

this proposed rule. The Department also 

has concluded that this proposed rule is 

a major rule under the Small Business 

Regulatory Enforcement Fairness Act of 

1996 (5 U.S.C. 801 et seq.). In addition, 

the Department has certified that the 

proposed rule as drafted will not have 

‘‘a significant economic impact on a 

substantial number of small entities’’

and, therefore, has not prepared an 

initial regulatory flexibility analysis 

under the Regulatory Flexibility Act of 

1980 (see the Regulatory Flexibility Act 

section below). However, the new 

military family leave provisions of H.R. 

4986 will result in an increase in the 

annual number of FMLA leaves taken. If 

these additional leaves significantly 

increase the economic impacts imposed 

by the FMLA regulation on a substantial 

number of small businesses, then a 

regulatory flexibility analysis will be 

required. 

The Department has prepared a 

Preliminary Regulatory Impact Analysis 

(PRIA) in connection with this rule, 

which is presented below in its entirety. 

Preliminary Regulatory Impact Analysis 

of the Proposed Revisions to the Family 

and Medical Leave Act Regulations 

Chapter 1: Industry Profile 

Background 

The Family and Medical Leave Act 

established a bipartisan Commission on 

Family and Medical Leave to study 

family and medical leave policies and 

their impact on workers and their 

employers. The Commission surveyed 

workers and employers and issued a 

report in 1995.16

In 1999, the Department contracted 

with Westat to update the employee and 

establishment surveys conducted in 

1995.17 The two surveys were 

completed in 2000. A report entitled 

‘‘Balancing the Needs of Families and 

Employers: Family and Medical Leave 

Surveys, 2000 Update’’ (the ‘‘2000 

Westat Report’’) was published in 

January 2001.18

In 2006, the Department published a 

Request for Information (RFI) seeking 

public comment on the Department’s 

administration and implementation of 

the FMLA regulations.19 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 RFI (71 FR 

69510). That presentation updated 

Westat’s estimates of the number of 

workers employed at establishments 

covered by the FMLA, the number of 

workers eligible for FMLA leave at 

covered establishments, and the number 

of workers who took FMLA leave in 

2005 (the latest year for which BLS 

employment data was available). It also 

highlighted a number of important 

findings in the 2000 Westat Report 

including some of the limitations in 

using the estimates presented in the 

report that were noted by Westat and 

others. 

The methodology to calculate the 

estimates presented in the RFI was to 

apply coverage, eligibility, and usage 

rates from the 2000 Westat Report to 

employment estimates from the 2005 

Current Population Survey to produce 

national estimates of FMLA coverage, 

eligibility, and usage. The estimates the 

Department developed using this 

methodology are reproduced in Table 1 

below. 

TABLE 1.—ESTIMATES OF NUMBER OF COVERED AND ELIGIBLE EMPLOYEES AND LEAVE TAKEN UNDER THE FAMILY AND

MEDICAL LEAVE ACT IN 2005 

[Millions of employees] 

Employees at FMLA-covered worksites ................................................................................................................................................ 94 .4 

Eligible Employees at FMLA-covered worksites ................................................................................................................................... 76 .1 

Non-eligible Employees at FMLA-covered worksites ............................................................................................................................ 18 .4 

Employees taking FMLA-protected leave .............................................................................................................................................. 6 .1 

Employees taking intermittent FMLA leave ** ....................................................................................................................................... 1 .5 

** Note: Many of these 1.5 million workers repeatedly take intermittent leave. 

Source: U.S. Department of Labor, Request for Information, (71 FR 69510 and 69511). 

As discussed in the Department’s 

report entitled ‘‘Family and Medical 

Leave Act Regulations: A Report on the 

Department of Labor’s Request for 

Information’’ (the ‘‘RFI Report’’), the 

Department did not receive any 

substantive comments on its coverage or 

eligibility estimates, or the methodology 

it used to produce those estimates.20

However, the Department received 

many comments regarding the FMLA 

leave usage rates that the Department 

used. 

In the RFI, the Department presented 

three estimates of the percent (or rate) 

of covered and eligible workers who 

took FMLA leave in 2005, and asked for 

information and data on the estimates. 

These estimates are reproduced in Table 

2 below. 

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21For comments on, and critiques of, the 2000 

Westat Report see Chapter XI, Section A, of the RFI 

Report (72 FR at 35550). 

22CONSAD Research Corporation is an economic 

and public policy analysis consulting firm serving 

agencies of the U.S. Government, as well as 

businesses, foundations, and State and local 

governments. 

23Revenue estimates were not available for parts 

of Forestry, Fishing, and Hunting; Public Utilities; 

Public Transit and Transportation; Public 

Educational Services; and Public Administration. 

24For certain industry sectors net income 

estimates were not available. 

25Available at: http://www.wagehour.dol.gov. 

TABLE 2.—PERCENT OF COVERED AND ELIGIBLE EMPLOYEES TAKING FMLA LEAVE IN 2005 

Percent 

Upper-bound Estimate * ............................................................................................................................................................................... 17.1 

Employer Survey Based Estimate ** ........................................................................................................................................................... 8.0 

Lower-bound Estimate * ............................................................................................................................................................................... 3.2 

* 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. 

Source: U.S. Department of Labor, ‘‘Family and Medical Leave Act Regulations: A Report on the Department of Labor’s Request for Information’’ (72 FR at 35622). 

In response to the RFI 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. Although many of the 

comments concerning FMLA usage rates 

submitted data higher than the 

employer survey based estimate 

presented in Table 2 above, many of the 

comments included usage rates that 

were consistent with the range of 

estimates presented in the RFI and 

Table 2. Clearly, some employers in 

some industries will experience higher 

rates of usage just as other employers in 

other industries may experience lower 

rates. Indeed, a few comments to the RFI 

suggested the Department develop 

industry specific estimates because the 

issues related to the FMLA vary by 

industry. 

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 company-specific data and 

information. As explained in the RFI 

and the RFI Report, despite the 

criticisms and limitations of the 2000 

Westat Report,21 the Department 

believes that it provides a great deal of 

useful information and data on FMLA 

leave-takers. Moreover, based upon that 

data, coupled with the information 

received in response to the RFI, the 

Department has significantly 

supplemented and updated its 

knowledge of the impacts of FMLA 

leave, particularly intermittent FMLA 

leave. 

Data Sources and Total Estimates by 

Industry 

The estimates presented in this 

Preliminary Regulatory Impact Analysis 

(PRIA) are primarily derived from an 

industry profile developed by CONSAD 

Research.22 Just as the Department did 

for the RFI, CONSAD used data from the 

2000 Westat Report as the basis for 

many of its estimates. However, rather 

than applying the Westat coverage, 

eligibility, and usage rates to data from 

the Current Population Survey (CPS), 

CONSAD primarily used data from the 

U.S. Census Bureau, 2005 County 

Business Patterns (CBP). The CBP data 

was used because it provides data on 

the number of employees, 

establishments, and the size of the 

payroll in each industry, as well as 

these data by size of establishment. 

However, since the CBP only covers 

most non-agricultural businesses in the 

private sector, CONSAD supplemented 

the CBP with data from other sources 

including the U.S. Department of 

Agriculture, Census of Agriculture, 

2002, the U.S. Census Bureau, Census of 

Governments, Compendium of Public 

Employment, 2002, the annual reports 

of certain Federal agencies (Bonneville 

Power Authority and Tennessee Valley 

Authority), the Association of American 

Railroads, Railroad Service in the 

United States, 2005, and the U.S. Postal 

Service, Annual Report, 2006. 

CONSAD estimated the number of 

firms based upon the U.S. Census 

Bureau, Statistics of U.S. Business, 

2004. The Statistics of U.S. Business is 

based upon the same underlying data as 

CBP, but presents the data on a firm 

basis rather than the establishment basis 

presented in the CBP. This was an 

important consideration in studying the 

FMLA regulations, since the 50- 

employee cutoff above which the FMLA 

applies refers to the number of 

employees at a particular firm within a 

geographic area. The Statistics of U.S. 

Business contains both the number of 

firms and the number of establishments 

in those firms at the 2-digit industry 

level. 

CONSAD based its estimates of 

revenues at the 2-digit industry level 

primarily on data from the U.S. Census 

Bureau, 2002 Economic Census series 

(2005). Depending upon the particular 

industry sector, CONSAD used the 

value of shipments, value of business 

done, receipts, sales, or revenues, in 

conjunction with the employment 

estimates in the Economic Census. In 

addition, CONSAD obtained some 

revenue estimates directly from the 

Census of Agriculture, as well as in the 

annual reports for the Bonneville Power 

Authority, the Tennessee Valley 

Authority, and the U.S. Postal Service.23

CONSAD developed estimates of net 

income before taxes (profits) for each 2- 

digit industry primarily from the 

Statistics of Income, 2004, published by 

the Internal Revenue Service. In 

addition, CONSAD obtained net income 

estimates directly from the annual 

reports for the Bonneville Power 

Authority, the Tennessee Valley 

Authority, and the U.S. Postal Service.24

Table 3 below presents CONSAD’s 

estimates of the total number of firms, 

establishments, and employees in the 2- 

digit industries in which Title I of the 

FMLA applies. It also presents the 

annual payroll, revenues, and profits for 

each 2-digit industry sector. See the 

CONSAD Report for the complete 

details on these estimates.25

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TABLE 3.—NUMBER OF FIRMS, ESTABLISHMENTS, EMPLOYMENT, PAYROLLS, ANNUAL REVENUE, AND PROFITS, THAT

TITLE I OF THE FMLA APPLIES TO, BY INDUSTRY, 2005 

NAICS 

codes Industry description Number of firms 

Number of 

establishments 

Number of 

employees 

Annual 

payroll 

($million) 

Revenues 

($million) 

Profits 

($million) 

11 ........ Agriculture, Forestry, Fishing and Hunting .... 563,692 578,536 3,205,214 $23,664 $200,646 $16,001 

21 ........ Mining, Quarrying, and Oil and Gas Extraction.19,271 24,696 497,272 30,823 190,349 24,598 

22 ........ Utilities ............................................................ 6,565 17,328 908,106 57,540 391,226 20,509 

23 ........ Construction ................................................... 778,065 787,672 6,781,327 292,519 1,139,542 71,579 

31–33 .. Manufacturing ................................................. 288,595 333,460 13,667,337 600,696 3,641,146 257,170 

42 ........ Wholesale Trade ............................................ 337,905 429,823 5,968,929 308,918 4,706,128 181,334 

44–45 .. Retail Trade .................................................... 737,188 1,123,207 15,338,672 348,047 3,200,607 119,040 

48–49 .. Transportation and Warehousing ................... 168,769 249,211 6,067,022 257,686 556,815 27,340 

51 ........ Information ..................................................... 76,138 141,290 3,402,599 203,130 812,244 88,977 

52 ........ Finance and Insurance .................................. 255,273 476,806 6,431,837 446,740 2,741,213 416,135 

53 ........ Real Estate and Rental and Leasing ............. 300,555 370,651 2,144,077 81,790 369,242 58,386 

54 ........ Professional, Scientific, and Technical Services.754,580 826,101 7,689,366 456,456 941,493 87,964 

55 ........ Management of Companies and Enterprises 27,353 47,593 2,856,418 243,267 119,588 20,295 

56 ........ Administrative and Support and Waste Management and Remediation Services.320,615 369,507 9,280,282 255,400 459,221 28,777 

61 ........ Educational Services ...................................... 87,807 95,500 13,210,374 405,009 205,433 23,715 

62 ........ Health Care and Social Assistance ............... 599,987 746,600 16,025,147 589,654 1,285,333 111,556 

71 ........ Arts, Entertainment, and Recreation .............. 114,072 121,777 1,936,484 52,936 148,644 18,926 

72 ........ Accommodation and Food Services .............. 462,956 603,435 11,025,909 156,041 489,690 33,202 

81 ........ Other Services (except Public Administration).676,401 740,034 5,390,954 127,481 476,300 31,751 

92 ........ Public Administration ...................................... 74,067 74,067 7,534,000 222,832 .................... ....................

All Industry Sectors Covered by Title 1 of the FMLA ...... 6,649,854 8,157,294 139,361,326 $5,160,628 $22,074,860 $1,637,255 

Source: CONSAD 2007. 

—Data Not Available. 

The totals may not sum due to rounding. 

Note the total number of employees in 

Table 3, 139.361 million, is very close 

to the total number of workers (less 

Federal employees) in 2005 published 

by the Bureau of Labor Statistics, 

139.773 million. The difference is just 

412,000, or 0.3 percent—not enough to 

significantly affect the estimates 

presented below. 

FMLA Coverage and Eligibility 

Estimates 

Title I of the FMLA covers privatesector employers of 50 or more 

employees, public agencies and certain 

Federal employers and entities, such as 

the U.S. Postal Service and the Postal 

Rate Commission. To be eligible for 

FMLA benefits, an employee must: (1) 

Work for a covered employer; (2) have 

worked for the employer for a total of 

12 months; (3) have worked at least 

1,250 hours over the previous 12 

months; and 4) work at a location where 

at least 50 employees are employed by 

the employer within 75 miles. 

CONSAD’s best estimate of FMLA 

coverage, by 2-digit industry, was 

developed by summing the number of 

establishments with 50 or more 

employees from the CBP with data from 

the U.S. Census Bureau, Statistics of 

U.S. Business for estimates of 

employment in private firms with 50 or 

more employees within a 75 mile radius 

of each other. Some additional data for 

the operations not covered by the CBP 

and Statistics of U.S. Business (i.e., the 

estimates from Census of Agriculture, 

Census of Governments, U.S. Postal 

Service, Association of American 

Railroads, Bonneville Power Authority, 

and Tennessee Valley Authority) were 

also used. 

All employers in primary and 

secondary education are covered. 

Although data for the U.S. Postal 

Service, classified by the employment 

size of the post office, are not available, 

CONSAD assumed that all career postal 

workers are employed at worksites 

where 50 or more employees work for 

the U.S. Postal Service within 75 miles 

of those locations and that all noncareer postal workers, which primarily 

include casual workers and workers at 

rural substations, likely do not meet the 

coverage and eligibility requirements 

relating to worksite location or to job 

tenure and working hours (and are not 

included in these estimates). 

For the railroad industry (more 

specifically, the freight railroad 

industry), data for 2005 from the 

Association of American Railroads 

include Class I railroads, regional line 

haul railroads, local line haul carriers, 

and switching and terminal carriers. 

Based on the average employment in 

each type of freight railroad, CONSAD 

assumed that Class I railroads and 

regional line haul railroads are, in 

general, covered under the FMLA, while 

local line haul carriers and switching 

and terminal carriers are generally not 

covered because they generally do not 

employ 50 or more workers. 

Data for the agricultural sectors are 

from the 2002 Census of Agriculture for 

both crop production and animal 

production combined. These data 

identify those farms with 10 or more 

workers and those workers on these 

farms who are employed at least 150 

days per year. To the extent that these 

farms have a total of 50 or more 

employees (and the data suggest that 

they likely would when the average 

number of workers employed on these 

farms working less than 150 days per 

year is added into the average number 

of workers employed on these farms 

working at least 150 days per year), 

these farms would then be covered 

under the FMLA. Their employees 

include those workers employed at least 

150 days per year (and likely eligible for 

FMLA leave), as well as workers 

employed less than 150 days per year 

(and not eligible for FMLA leave). 

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26 DOL estimate developed from 2000 Westat 

Report, p. A–2–21. 27See 2000 Westat Report, pp. 3–14—3–15. 

Table 4 below presents CONSAD’s 

estimates for covered establishments. 

Note the 95.8 million estimate of the 

total number of workers employed at 

covered establishments based upon this 

methodology and data is close to the 

Department’s estimate of 94.4 million 

(presented in the RFI and the report on 

the RFI) based upon the 2005 CPS and 

the methodology in the RFI. 

TABLE 4.—NUMBER OF FMLA COVERED FIRMS AND ESTABLISHMENTS, EMPLOYMENT, PAYROLLS, ANNUAL REVENUE, AND

PROFITS BY INDUSTRY, 2005 

NAICS 

codes Industry description Number of firms 

Number of 

establishments 

Number of 

employees 

Annual 

payroll 

($million) 

Revenues 

($million) 

Profits 

($million) 

11 ........ Agriculture, Forestry, Fishing and Hunting .... 7,893 16,399 1,008,802 $7,485 $62,902 $5,016 

21 ........ Mining, Quarrying, and Oil and Gas Extraction.881 3,914 336,604 21,389 128,848 16,651 

22 ........ Utilities ............................................................ 570 4,773 796,896 50,865 324,319 16,933 

23 ........ Construction ................................................... 16,650 24,291 2,741,450 133,635 460,676 28,937 

31–33 .. Manufacturing ................................................. 29,765 66,333 11,065,335 501,498 2,947,941 208,210 

42 ........ Wholesale Trade ............................................ 11,926 59,989 3,390,529 184,438 2,673,220 103,003 

44–45 .. Retail Trade .................................................... 14,512 218,674 9,229,640 206,364 1,925,881 71,629 

48–49 .. Transportation and Warehousing ................... 5,175 80,665 4,922,320 213,610 418,618 19,793 

51 ........ Information ..................................................... 3,703 31,089 2,664,028 164,743 635,938 69,663 

52 ........ Finance and Insurance .................................. 5,335 89,035 4,367,850 325,031 1,861,553 282,597 

53 ........ Real Estate and Rental and Leasing ............. 3,726 62,188 1,033,014 39,438 177,900 28,130 

54 ........ Professional, Scientific, and Technical Services.17,492 70,715 4,315,079 269,222 528,342 49,363 

55 ........ Management of Companies and Enterprises 2,800 11,322 2,500,373 211,486 104,682 17,765 

56 ........ Administrative and Support and Waste Management and Remediation Services.12,945 52,333 7,428,951 191,044 367,611 23,036 

61 ........ Educational Services ...................................... 18,130 27,610 12,655,139 391,513 165,820 19,142 

62 ........ Health Care and Social Assistance ............... 22,161 89,592 11,330,723 400,431 908,806 78,877 

71 ........ Arts, Entertainment, and Recreation .............. 3,626 14,661 1,276,356 34,243 97,973 12,475 

72 ........ Accommodation and Food Services .............. 19,882 80,376 5,352,996 80,221 237,741 16,119 

81 ........ Other Services (except Public Administration).13,997 56,587 1,843,408 44,489 162,868 10,857 

92 ........ Public Administration ...................................... 74,067 74,067 7,534,000 222,832 .................... ....................

All Establishments Covered by Title 1 of the FMLA ....... 285,237 1,134,612 95,793,493 $3,693,976 $14,191,639 $1,078,197 

Source: CONSAD 2007. 

—Data Not Available. 

Note: The totals may not sum due to rounding. 

Estimates of Workers Eligible To Take 

FMLA Leave and FMLA Leave Usage 

The estimates of the number of 

workers eligible to take FMLA leave and 

FMLA leave usage were developed by 

applying estimates from the 2000 Westat 

Report to the coverage estimates. The 

number of workers eligible to take 

FMLA leave in each industry was 

calculated by multiplying Westat’s 

estimate that 80.5 percent of workers 

employed at covered establishments are 

eligible to take FMLA leave 26 by the 

number of workers covered by the 

FMLA in each industry. Note that 

CONSAD’s estimates of the total number 

of workers covered by the FMLA is 

relatively close to the Department’s 

estimates published in the RFI, because 

both were developed by applying the 

same Westat estimate to the number of 

covered employees. 

In the RFI, the Department estimated 

the number of workers who took FMLA 

leave in 2005 by multiplying the 

number of workers employed in 

establishments covered by the FMLA by 

Westat’s estimate that 6.5 percent of 

workers employed at establishments 

covered by the FMLA took FMLA 

leave.27 However, the Department 

received many comments in response to 

RFI that noted this estimate does not 

represent current conditions because 

employees today are more aware of their 

FMLA rights than they were in 1999 

when Westat conducted its survey. In 

the RFI Report, the Department 

concurred and stated that ‘‘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.’’ (72 FR at 35623) 

To account for the increase in 

employee awareness of the FMLA, 

CONSAD examined the changes in 

FMLA usage between the 1995 and the 

1999 surveys commissioned by the 

Department. CONSAD then assumed 

that the extrapolation would look like a 

typical learning curve and plotted three 

points corresponding to zero FMLA 

leave taking in 1993, 3.6 percent in 

1995, and 6.5 percent in 2000, and 

sketched a smooth, monotonically 

increasing curve through the points and 

projected it through 2007. On this basis, 

CONSAD estimated that the curve 

would have a value of roughly 7.3 in 

2007 (i.e., 7.3 percent of workers 

employed at establishments covered by 

the FMLA currently take FMLA leave). 

Estimates of the number of workers 

taking FMLA in each industry were then 

calculated by multiplying the estimated 

number of workers covered by the 

FMLA in each industry by 7.3 percent. 

See Table 5 below. 

The number of workers who took 

intermittent FMLA leave in 2005 in 

each industry was estimated by 

multiplying Westat’s estimate that 23.9 

percent of workers who take FMLA 

leave take some of the leave 

intermittently (i.e., they repeatedly took 

leave for a few hours or days at a time 

because of ongoing family or medical 

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28Those that answered yes to Question A5B of 

Westat’s employee questionnaire: See 2000 Westat 

Report, Appendix D, p. 10. 

29 It is important to note that the average number 

of leaves is higher for many leave-takers. For 

example, as was noted in the CONSAD Report, the 

covered and eligible leave-takers who reported 

taking both leave intermittently (i.e., repeatedly at 

different times) and taking more than one leave, 

took an average of 4.6 leaves. There also is some 

uncertainty over how respondents interpreted the 

term ‘‘leave’’ (i.e., whether it means each incident/ 

absence or a group of absences for a single 

qualifying condition). For example, 1.3 percent of 

the covered and eligible leave-takers who reported 

taking leave intermittently reported taking no FMLA 

leaves. Another 53.2 percent of the covered and 

eligible leave-takers who reported taking leave 

intermittently reported taking only one FMLA 

leave. Thus, it would appear that many workers 

considered a leave to be a single qualified reason 

(e.g., pregnancy and birth of a child) regardless of 

the number of incidents/absences (e.g., for pre-natal 

care, morning sickness, childbirth, recovery from 

child birth). On the other hand, 8.3 percent of the 

covered and eligible leave-takers who reported 

taking leave intermittently reported taking 10 or 

more FMLA leaves. Presumably, many of these 

leave-takers were reporting the number of incidents 

(e.g., absences, late arrivals, etc.) rather than the 

number of leaves based on different qualifying 

conditions. 

30Although there is some uncertainty over how 

respondents interpreted the term ‘‘leave’’ in the 

Westat employee survey (see footnote 29), this is 

the Department’s best estimate given available data. 

31 In addition to the difficulty interpreting the 

term ‘‘leave’’ discussed in footnote 29, the Westat 

surveys were not large enough to develop industryspecific leave usage estimates. Although 

information provided in response to the RFI 

suggests that leave usage varies by industry, the 

data submitted do not permit the development of 

estimates by industry. 

reasons) 28 by the estimated number of 

workers taking FMLA leave in each 

industry. Table 5 below also presents 

these estimates. 

TABLE 5.—ESTIMATED OF NUMBER OF FMLA ELIGIBLE WORKERS AND FMLA LEAVE USAGE, BY INDUSTRY, 2005 

NAICS 

codes Industry description 

Number of employees 

Eligible to 

take FMLA 

leave 

Taking 

FMLA 

leave 

Taking 

intermittent 

FMLA leave 

11 ........ Agriculture, Forestry, Fishing and Hunting .................................................................. 812,085 73,643 17,601 

21 ........ Mining, Quarrying, and Oil and Gas Extraction ........................................................... 270,966 24,572 5,873 

22 ........ Utilities .......................................................................................................................... 641,501 58,173 13,903 

23 ........ Construction ................................................................................................................. 2,206,867 200,126 47,830 

31–33 .. Manufacturing ............................................................................................................... 8,907,594 807,769 193,057 

42 ........ Wholesale Trade .......................................................................................................... 2,729,376 247,509 59,155 

44–45 .. Retail Trade .................................................................................................................. 7,429,860 673,764 161,030 

48–49 .. Transportation and Warehousing ................................................................................. 3,962,468 359,329 85,880 

51 ........ Information ................................................................................................................... 2,144,543 194,474 46,479 

52 ........ Finance and Insurance ................................................................................................ 3,516,119 318,853 76,206 

53 ........ Real Estate and Rental and Leasing ........................................................................... 831,576 75,410 18,023 

54 ........ Professional, Scientific, and Technical Services ......................................................... 3,473,638 315,001 75,285 

55 ........ Management of Companies and Enterprises .............................................................. 2,012,800 182,527 43,624 

56 ........ Administrative and Support and Waste Management and Remediation Services ..... 5,980,306 542,313 129,613 

61 ........ Educational Services .................................................................................................... 10,187,387 923,825 220,794 

62 ........ Health Care and Social Assistance ............................................................................. 9,121,232 827,143 197,687 

71 ........ Arts, Entertainment, and Recreation ............................................................................ 1,027,467 93,174 22,269 

72 ........ Accommodation and Food Services ............................................................................ 4,309,162 390,769 93,394 

81 ........ Other Services (except Public Administration) ............................................................ 1,483,944 134,569 32,162 

92 ........ Public Administration .................................................................................................... 6,064,870 549,982 131,446 

All Establishments Covered by Title 1 of the FMLA ..................................................................... 77,113,762 6,992,925 ** 1,671,309 

** Note: Many of these workers are likely to take multiple FMLA leaves. See Chapter XI, Section E, of the RFI Report (72 FR at 35550). 

Source: CONSAD 2007. 

Although the Department presented a 

range for the number of FMLA leavetakers in the RFI Report (see Chapter XI, 

Section D, of the RFI Report (72 FR at 

35550)), for this PRIA the Department 

presents its best estimate—7.0 million 

workers. The Department departed from 

presenting a range here because the 

comments received in response to the 

RFI strongly suggested that the 

Department’s Employer Survey Based 

(point) Estimate that it presented in the 

RFI (6.1 million workers) was 

reasonable and the Department received 

very few comments on the approach 

that it used to develop that estimate. 

Estimates of the Number of FMLA 

Leaves Taken 

Because the impacts of some of the 

proposed revisions are related to the 

number of FMLA leaves taken rather 

than the number of workers taking 

FMLA leave, for this analysis it was 

necessary to estimate the number of 

FMLA leaves taken. To do this, 

CONSAD examined the data collected 

by the Westat employee survey. From 

this survey, CONSAD estimated that 

during 1999, 8.8 million leave-takers 

working in FMLA covered 

establishments took 13.3 million leaves. 

Therefore, on average each leave-taker 

took 1.5 leaves.29 Assuming this rate 

applies to workers taking FMLA leave in 

2005, CONSAD estimates that the 7.0 

million workers taking FMLA leave took 

about 10.5 million leaves in 2005.30 The 

Department did not develop estimates of 

the number of FMLA leaves by industry 

based upon the national average, 

because comments to the RFI indicate 

that leave usage can vary greatly by 

industry.31

Chapter 2: Estimated Impacts of the 

Proposed Revisions Introduction 

In this Chapter, the Department 

presents its estimates of the impacts of 

the proposed revisions to the FMLA. 

The approach utilized was to present a 

summary of the changes most likely to 

result in behavior changes by covered 

employers and their employees and to 

estimate the monetary value of these 

changes whenever possible. (The 

preamble to the proposed rule provides 

a more detailed discussion of each 

proposed change.) Several findings in 

the Department’s RFI Report, noted 

below, influenced the methodology 

used to estimate the impact of the 

proposed revisions. 

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32Bureau of Labor Statistics, ‘‘National 

Compensation Survey: Occupational Wages in the 

United States, June 2006.’’ Rate assumes hourly 

wage plus 40% for benefits. 

33 In order to be impacted by the proposed 

provision a worker would have to (1) be employed 

for at least 1,250 hours during the previous 12 

months, (2) have a break in employment with that 

employer for more than 5 years, and (3) need time 

Continued 

• ‘‘Previous congressional testimony, 

the 2000 Westat Report, other surveys, 

and stakeholder meetings suggest that 

the FMLA has significant benefits and 

costs.’’ (72 FR at 35627) 

• ‘‘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 * * * 

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.’’

(72 FR at 35627) 

• ‘‘[S]ome 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.’’ (72 FR at 35630) 

• ‘‘The RFI record suggests that 

intermittent FMLA leave can have 

significant impacts on time-sensitive 

business models * * * In many 

situations, the absence of just a few 

employees can have a significant impact 

* * * 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.’’ (72 FR at 

35632) 

Based on these findings, the 

Department used a bifurcated approach 

to assessing the impacts of the proposed 

revisions. First, the PRIA assesses the 

impacts that are generally applicable to 

most employers and their employees. 

Second, the PRIA qualitatively 

discusses the impacts on employers and 

employees with highly time-sensitive 

operations. 

Although many of the estimates 

presented below are developed from the 

same data sources used in the 

Department’s estimates under the 

Paperwork Reduction Act (PRA), 44 

U.S.C. 3501 et seq., and its attendant 

regulations, 5 CFR part 1320, there are 

several differences in the estimates. 

These differences, however, result from 

the differing requirements imposed by 

the E.O. 12866 and the PRA. For 

example, many of the employer 

estimates developed for the PRIA are 

based upon the number of covered 

establishments while the estimates in 

the PRA are based upon the number of 

respondents, which is often the number 

of employers covered by the FMLA. In 

addition, the estimates in the PRIA 

represent the incremental changes of the 

proposed rule while those in the PRA 

analysis represent the total burden of 

the information collection. In some 

cases, this results in the PRA analysis 

calculating a paperwork burden for an 

information collection that remains 

unchanged from the current regulation 

and is thus not considered an 

incremental cost of the new regulation 

in the PRIA. Conversely, the regulatory 

definition for ‘‘collection of 

information’’ for PRA purposes 

specifically excludes the public 

disclosure of information originally 

supplied by the Federal government to 

the recipient for the purpose of 

disclosure to the public (see 5 CFR 

1320.3(c)(2)), while the PRIA needs to 

consider the impact of any regulatory 

changes in such notifications provided 

by the government. 

Cost of Reviewing and Implementing 

Revisions 

Any change in a regulation will result 

in costs for the regulated community to 

review the changes and revise their 

policies and procedures. The 

Department estimates that, on average, a 

human resource professional at each 

firm with FMLA covered establishments 

will spend an average of six hours to 

review the revised FMLA provisions, 

adjust existing company policies 

accordingly, and disseminate 

information to managers and staff. 

Given that the average hourly wage and 

benefits rate of a Human Resource 

compensation and benefits specialist is 

$36.51,32 the average one time cost per 

covered firm is $219.06 (6 hours × 

$36.51). Multiplying this average cost 

per firm by the estimated 273,937 firms 

that have FMLA covered establishments 

(see the industry profile above) results 

in an estimated one-time cost of about 

$60.0 million for firms to review the 

changes and revise their policies and 

procedures. 

Clarifying the Treatment of Professional 

Employer Organizations (§ 825.106) 

The Department is proposing to 

clarify how the joint employment rules 

apply to Professional Employer 

Organizations (PEOs). Under the 

proposal, PEOs that contract with client 

employers merely to perform 

administrative functions—including 

payroll, benefits, regulatory paperwork, 

and updating employment policies—are 

not joint employers with their clients, 

provided: (1) They do not have the right 

to exercise control over the activities of 

the client’s employees, and do not have 

the right to hire, fire or supervise them, 

or determine their rates of pay, and (2) 

do not benefit from the work that the 

employees perform. 

Based upon the comments received in 

response to the RFI, it appears that some 

commenters were under the erroneous 

impression that PEOs were treated the 

same as temporary staffing agencies. 

Thus, some workers may have been 

mistakenly treated as if they were 

covered by the FMLA when they were 

not. Other comments indicated that 

some small employers do not use PEOs 

because of uncertainty over FMLA 

coverage. Some of these employers may 

choose to use PEOs after the 

clarification and provide their 

employees with some of the benefits 

offered by the PEOs such as access to 

group life and health insurance, and 

retirement plans. Although data 

limitations inhibit the Department from 

estimating the impact of this 

clarification, the Department expects 

that very few workers or employers will 

be impacted by this clarification. 

Clarifying the Definition of ‘‘Eligible 

Employee’’ (§ 825.110) 

Current § 825.110 sets forth the 

eligibility standards employees must 

meet in order to take FMLA leave. 

Specifically, current § 825.110(a) 

restates the statutory requirement that to 

be eligible for FMLA leave, an employee 

must have been employed by an 

employer for 12 months, been employed 

for 1,250 hours in the 12 months 

preceding the leave, and be employed 

by an employer with 50 or more 

employees within 75 miles of the 

worksite. Current § 825.110(b) provides 

detail on the requirement that the 

employee must have been employed by 

the employer for at least 12 months, 

stating that the 12 months need not be 

consecutive. 

The Department is proposing a new 

§ 825.110(b)(1) to provide that although 

the 12 months of employment need not 

be consecutive, employment prior to a 

continuous break in service of five years 

or more need not be counted. The 

Department expects that very few 

workers will be impacted by this 

clarification.33

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7946 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 

from the earlier period of employment with the 

same employer to meet the 12 months of 

employment requirement for FMLA eligibility. Very 

few workers are likely to meet these three 

conditions. For example, part-time employees 

would have to work an average of 25 hours per 

week for 50 weeks to meet the 1,250 hours 

employed requirement. So the only ones impacted 

are those who want to use FMLA leave and who 

need a few additional weeks of employment from 

their previous period of employment more than 5 

years ago with the same employer. Similarly, 

returning full-time employees will need more than 

7 months of employment at 40 hours per week to 

meet the 1,250 hours employed requirement. So the 

only ones impacted are those who want to use 

FMLA leave and who need a few extra months of 

employment from their previous period of 

employment more than 5 years ago with the same 

employer. 

34WorldatWork, FMLA Perspectives and 

Practices: Survey of WorldatWork Members, April 

2005, Figure 9a, p. 8. 

35The Department anticipates that at most 27,000 

leaves may require an additional visit to a 

healthcare professional to qualify for FMLA 

protection. 

The Determination of Whether 50 

Employees Are Employed Within 75 

Miles (§ 825.111) 

Current § 825.111 sets forth the 

standards for determining whether an 

employer employs 50 employees within 

75 miles for purposes of employee 

eligibility. Paragraph (a)(3) of this 

section provides 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 is assigned or 

reports. The Department is proposing to 

modify § 825.111(a)(3) to state that after 

an employee who is jointly employed is 

stationed at a fixed worksite for a period 

of at least one year, the employee’s 

worksite for purposes of employee 

eligibility is the actual physical place 

where the employee works. No changes 

are being proposed with respect to 

employees whose worksite has not been 

fixed for at least one year. 

The Department expects that this 

clarification will have little net impact. 

Some employees currently covered by 

FMLA may not be covered if their 

official worksite is changed because 

they have worked more than one year at 

an establishment which has less than 50 

employees within 75 miles, while other 

employees not currently covered may 

become covered if their worksite is 

changed to an establishment which has 

50 or more employees within 75 miles. 

Clarifying the Definitions of 

‘‘Continuing Treatment’’ and ‘‘Periodic 

Visit’’ (§ 825.113, § 825.114 and 

§ 825.115) 

The current regulations 

(§ 825.114(a)(2)(i)(A)) define 

‘‘continuing treatment’’ for purposes of 

establishing a serious health condition 

as a period of incapacity of more than 

three consecutive calendar days and 

treatment two or more times by a health 

care provider. However, the current 

‘‘two visit’’ requirement for serious 

health conditions is open-ended. One of 

the proposed clarifications specifies that 

the two visits to a health care provider 

must take place within a 30 calendarday period to meet the definition. 

Similarly, a chronic serious health 

condition is currently defined in 

§ 825.114(a)(2)(iii) as one that requires 

periodic visits for treatment, but the 

regulations do not define the term 

‘‘periodic visit.’’ In the proposal, 

‘‘periodic visit’’ is defined as visiting a 

physician twice or more per year for the 

same condition. This is based on an 

expectation that employees with 

chronic serious health conditions will 

generally visit their health care 

providers with a minimum frequency of 

semi-annually. 

Although the proposed clarification 

will reduce uncertainty in the 

workplace, it is unlikely to have any 

identifiable impact on FMLA leavetakers for several reasons. First, of the 

five different definitions of continuing 

treatment contained in current 

§ 825.114(a)(2)(i) through (v), the 

Department is proposing to update only 

two. Those workers who meet the other 

tests will not be affected (i.e., the 

clarifications do not impact workers 

who take FMLA leave for a pregnancy 

or prenatal care; workers who use leave 

for a condition that is permanent or 

long-term for which treatment may not 

be effective; or workers who use leave 

for multiple treatments, such as for a 

condition that would likely result in 

more than three consecutive days of 

incapacity in the absence of treatment. 

The proposed changes also do not affect 

employees who take FMLA leave for 

serious health conditions that required 

an overnight hospital stay or workers 

who will qualify on the basis of one 

visit to a health care professional and a 

continuing regimen of treatment. 

Second, serious health conditions 

usually require two visits to a health 

care provider within 30 days, and 

workers with chronic serious health 

conditions typically visit their health 

care providers twice a year. Finally, the 

Department has also proposed an 

‘‘extenuating circumstances’’ exception 

to the 30-day rule in § 825.115(a)(1), so 

it is likely that very few workers will be 

negatively impacted by the proposed 

changes. 

In fact, the Department believes it is 

providing FMLA protection to more 

workers by clarifying that the period 

should be 30 days, instead of adopting 

the stricter regulatory interpretation 

offered by the United States Court of 

Appeals for the Tenth Circuit (see 

discussion in preamble). Further, to the 

extent that some employers have chosen 

to provide their own more stringent 

definition of the term ‘‘periodic’’ for 

FMLA purposes, clarifying the term 

‘‘periodic’’ for chronic conditions to 

mean two or more visits per year will 

reduce uncertainty in the workplace and 

decrease the burden for some workers. 

The following analysis illustrates how 

few workers and leaves this may 

involve. According to both the Westat 

and WorldatWork surveys, leaves based 

on multiple visits to a health care 

provider (as distinct from leaves for selftreatment) represent only a small 

percentage of FMLA leaves. In fact, the 

WorldatWork survey states that multiple 

treatments were the basis of only 5.1 

percent of FMLA episodes.34 However, 

it is very unlikely that the proposed 

changes will impact even this small 

percentage of leaves because: (1) The 

multiple treatments that most workers 

currently have will likely meet the 

revised requirements with no change in 

the behavior of those workers; and (2) 

other workers will simply move up the 

time of their second treatments to meet 

the revised requirements (e.g., the 30 

day period), or provide an explanation 

of the ‘‘extenuating circumstances.’’

Therefore, it is likely that on balance 

very few workers will be impacted by 

the proposed changes.35 The 

Department specifically requests 

comment on this conclusion. 

Substitution of Paid Leave (§ 825.207) 

In the RFI the Department noted 

‘‘Some employers commented that the 

substitution of leave provisions 

contribute to increased FMLA leave at 

otherwise popular vacation or personal 

leave times.’’ Moreover, this increased 

use of FMLA leave resulted in some 

workers receiving more favorable 

treatment than others. ‘‘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.’’ (72 

FR at 35612) The proposed revision will 

address both of these concerns by 

combining current paragraphs (a), (b), 

and (c) of § 825.207 into one paragraph 

(a), which now clearly states that the 

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36See the 2000 Westat Report, Table 4.2, p. 4–5. 

37The 2000 Westat Report indicated that of leavetakers who received paid leave during their longest 

FMLA leave, 39.4% received paid vacation leave 

and 25.7% received paid personal leave (Table 4.6, 

p. 4–6). Using probabilities, 55.0% = 39.4% + 

25.7%—(39.4% × 25.7%). 

38See 2000 Westat Report, Table 4.2, p. 4–3. 

39A rational employer would balance the perfect 

attendance award cost with the cost of employee 

absence, and not offer such bonuses where the cost 

of an absence is relatively low. 

terms and conditions of an employer’s 

paid leave policies apply and must be 

followed by the employee in order to 

substitute any form of accrued paid 

leave—including, for example, paid 

vacation, personal leave, family leave, 

‘‘paid time off’’ (PTO), or sick leave. In 

addition, the proposed revision will 

help reduce the impact of unforeseeable 

intermittent leave and uncertainty in the 

workplace by providing employers with 

sufficient notice of their employees’

need for leave and thereby allowing for 

better staffing adjustments. 

Proposed § 825.207 requires FMLA 

leave-takers who are also receiving paid 

leave to meet their employer’s 

uniformly-applied paid leave policies 

for accrued paid vacation and personal 

leave. If an employee does not comply 

with the requirements in an employer’s 

paid leave policy, the employee is not 

entitled to substitute accrued paid 

vacation and personal leave, but 

remains entitled to all the protections of 

unpaid FMLA leave. 

According to Westat, 65.8 percent of 

workers who take FMLA leave received 

some type of pay during their longest 

FMLA leave.36 Further, CONSAD 

estimated that 55.0 percent of these 

leave-takers received paid vacation or 

personal leave.37 Therefore, about 2.5 

million workers (i.e., 7.0 million × 

65.8% × 55%) received paid vacation or 

personal leave during their FMLA leave. 

However, the proposal will not impact 

all of these workers because many of 

them will continue to be eligible to use 

paid vacation pursuant to their 

employers’ normal vacation leave 

policies. 

Most employers do not have very 

strict requirements regarding paid leave. 

According to the 2000 Westat Report, 

77.8 percent of leave-takers reported 

that it was easy to get their employer to 

let them take time off. This suggests that 

the vast majority of workers will have 

no problem complying with their 

employers’ paid leave policies. On the 

other hand, 14 percent reported that it 

was difficult to get time off.38 This 

suggests that a similarly small 

percentage of the 2.5 million workers 

who received paid vacation or personal 

leave during their FMLA leave may 

have some difficulty satisfying their 

employers’ paid leave policies. 

Some of these FMLA leave-takers will 

be encouraged to provide their 

employers with additional notice of a 

pending absence so they can utilize paid 

vacation and personal leave in 

conjunction with their FMLA leave. 

Other FMLA leave-takers will not be 

able to satisfy their employer’s 

procedures for taking paid leave (e.g., 

because the procedures require that 

leave be taken at specific times of the 

year or in minimum blocks of time such 

as a week). However, workers who do 

not or cannot satisfy their employer’s 

procedures for taking paid leave will 

still remain entitled to all the 

protections of unpaid FMLA leave. 

The inability to take paid vacation 

leave concurrently with FMLA leave 

may have a negative impact on the cash 

flow of those few who do not satisfy 

their employer’s requirements for taking 

paid leave, and the Department 

understands that many commenters 

responding to the RFI emphasized the 

importance of the ability to substitute 

paid leave. However, for the few 

workers who will no longer be able to 

substitute paid vacation in all 

situations, these workers will still be 

entitled to use their accrued paid leave 

at some other time. 

Perfect Attendance Awards 

(§ 825.215(c)(2)) 

The Department is proposing to 

replace the existing language in 

§ 825.215(c)(2) with language that better 

reflects the requirements of the statute 

and reduces uncertainty in the 

workplace. Specifically, employers are 

uncertain whether their employee 

incentive plans are in violation of the 

current regulation. The confusion stems 

from language which distinguishes 

between bonuses for job performance 

such as those based on production 

goals, and bonuses that contemplate the 

absence of occurrences, such as bonuses 

for working safely with no accidents or 

for perfect attendance. 

Perfect attendance incentives are 

traditionally offered by employers 

where the costs of absent employees 

(i.e., the cost of the production delay 

itself or the cost of overstaffing or 

overtime to avoid the delay) are high. 

Employers would offer the bonuses to 

motivate workers not to be absent, 

thereby avoiding costs that are far in 

excess of the bonus.39 In such 

situations, both employers and 

employees gain from the bonus. 

Employers reduce their costs. 

Employees increase their income. 

Comments made in response to the 

RFI indicate that the current FMLA 

regulations interfere with the 

effectiveness of perfect attendance 

bonuses because employees could still 

qualify for the bonus while absent on 

FMLA leave. As a result, the benefits of 

the bonuses to employers are 

diminished because employers still 

incur the costs related to absenteeism in 

addition to the cost of the bonuses, 

which means that fewer employers may 

offer these awards, ultimately hurting 

employees as well. 

The Department believes that this 

revision will restore perfect attendance 

awards to their intended purpose. By 

reducing the uncertainty surrounding 

employee incentive plans, this revision 

may encourage more employers to 

provide larger bonuses as incentives to 

reduce absenteeism among all workers. 

Based upon the comments to the RFI, 

the Department expects that some 

reduction in unnecessary absenteeism 

will reduce overall employer costs. 

However, data limitations inhibit the 

Department from quantifying the impact 

of this revision. 

The Treatment of Light Duty 

(§ 825.220(d)) 

The Department is proposing to delete 

the final sentence of current 

§ 825.220(d) to ensure that employees 

retain their right to reinstatement for a 

full 12 weeks of leave instead of having 

the right diminished by the amount of 

time spent in a light duty position. 

Under FMLA employees have no right 

to a light duty position. Therefore, 

employers will only offer such duty to 

employees when it is advantageous for 

them to do so. This will continue to be 

the case under the revised provision. 

Although the Department believes that 

this change will have a negligible 

impact on employers, a few workers 

whose employers are counting their 

light duty hours towards their 12 weeks 

of FMLA leave will now have more 

hours of leave available. The only 

impact that the Department anticipates 

is that some workers may not be offered 

light duty because their employers will 

not consider such duty cost-effective if 

the time is not counted against the 

worker’s FMLA allotment, either for 

purposes of restoration rights or length 

of leave. 

Changes to the Employer Notification 

Requirements (§ 825.300) 

Proposed § 825.300(a)(3) requires 

covered employers with eligible 

employees to distribute a general notice 

of information about the FMLA to 

employees either by including it in an 

employee handbook or by distributing a 

copy to each employee at least once a 

year, either in paper or electronic 

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7948 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 

40Although 12.7 million workers requested leave, 

only 7.0 million were eligible and took leave. 

41See the 2000 Westat Report, Table A2–6.1, p. 

A–2–50. 

42 Id. The Department assumes that the 

distribution of the means of communication among 

employees is the same as the distribution of means 

of communication among establishments. 

43National Compensation Survey: Occupational 

Wages in the United States, June 2006. Based on an 

hourly wage of $26.08 plus 40% for benefits. 

44To the extent that e-mail or other electronic 

means of communication may be more common 

now than in 2000, this may be an overestimate of 

the impact of this provision. 

45 Department of Labor, Employment Standards 

Administration, estimates from the Westat 

Employee Survey data. 

46 Id. 

format, regardless of whether an 

employee requests leave. 

Current § 825.301(a)(1) requires an 

employer to place in an employee 

handbook, if one exists, a notice of 

FMLA rights and responsibilities and 

the employer’s policies on FMLA. 

Current § 825.301(a)(2) states that an 

employer without a handbook must 

provide written guidance to an 

employee concerning all the employee’s 

rights and obligations under FMLA 

when the employee gives specific notice 

of the need for leave. 

The difference between the proposed 

and current provisions, therefore, is that 

under the proposal all employees 

working in covered establishments 

without handbooks must be notified 

annually rather than just when they ask 

for leave that could be FMLA leave. The 

proposed change will likely increase 

notification costs for some covered 

employers (i.e., those without 

handbooks), and will likely increase 

awareness of the Act and therefore 

FMLA usage. 

CONSAD estimated the number of 

additional notices that may be required 

for this provision, based upon data from 

the 2000 Westat Report. The 2000 

Westat Report indicates that 18.9 

percent of employees request FMLA 

leave annually. CONSAD added 1 

percent to this estimate to account for 

the growth in awareness of the FMLA 

from 1999 to 2005, and then the 19.9 

percent was multiplied by 2⁄3 to account 

for the fact that the Westat survey 

covered 18 months instead of 12 

months. Thus, CONSAD estimated that 

about 12.7 million covered employees 

request leave each year (i.e., 13.3% of 

the 95.8 million FMLA covered 

employees).40 Data from Westat also 

indicate that 8.1 percent of covered 

employees did not receive information 

regarding their FMLA rights in 

handbooks.41 Therefore, employers 

currently send out about 1 million 

general notices to employees requesting 

leave (i.e., 12.7 million × 8.1%). 

Under the new provision, all FMLAcovered employees must receive an 

FMLA general notice at least annually, 

regardless of whether they request leave, 

if the information is not in an employee 

handbook. Therefore, employers will 

have to send annual notices to about 7.8 

million workers (i.e., 8.1% of the 95.8 

million covered employees), and the net 

impact of the proposal will be 6.8 

million additional general notices sent 

out each year (i.e., 7.8 million—1 

million sent out under the current rule). 

The 2000 Westat Report suggests that 

32 percent of employees without FMLA 

information in a handbook will receive 

an annual notice via e-mail, 62 percent 

will receive a hand-delivered memo at 

work, and the remaining 6 percent will 

receive their annual notice via regular 

mail.42 Therefore, among the additional 

notices needed each year, 2.2 million 

(i.e., 32% of 6.8 million) will be emailed, 4.2 million will be handdelivered at work, and 0.4 million 

notices will be sent by regular mail. 

Of the 1.135 million FMLA covered 

establishments, an estimated 92,000 

(8.1%) do not include FMLA 

information in an employee handbook 

and will be required to send annual 

notices to employees. For e-mail 

notices, the Department estimates that it 

will take on average one hour for a 

‘‘benefits and compensation’’ specialist 

to prepare a notice (or find a pre-made 

one from the Department of Labor’s Web 

site) and e-mail the notice to employees. 

For hand-delivered notices, the 

Department assumes that it will take on 

average 1.5 hours to prepare the notice 

and hand-deliver it through the 

interoffice mail. Finally, the Department 

estimates that it will take a similar 

specialist an average of two hours to 

prepare notices to be mailed by regular 

mail. This time includes preparing the 

notice, printing mailing labels, and 

putting the notices in envelopes. 

Based on data from the Bureau of 

Labor Statistics, the average cost for 

wage and benefits of a ‘‘benefits and 

compensation specialist’’ is $36.51 per 

hour.43 So the estimated cost to prepare 

the 29,000 e-mail notices is about $1.1 

million (i.e., 92,000 establishments 

multiplied by 32%, times the cost of 

$36.51 per establishment) and the 

estimated cost for 57,000 firms to handdeliver notices is about $3.4 million 

(i.e., 92,000 establishments multiplied 

by 62%, times the cost of $54.77 per 

establishment, plus the cost of copying 

the notice for 4.2 million workers at 8 

cents per copy). The estimated cost for 

5,500 firms to prepare and deliver the 

notice through regular mail is about $0.6 

million (i.e., 92,000 establishments 

multiplied by 6%, times the cost of 

$73.02 per establishment, plus the cost 

of mailing a notice via regular mail 

(about 49 cents) times the 0.4 million 

additional annual notices sent via mail). 

Adding all of these costs together 

yields a total estimated annual 

additional cost of about $5.1 million for 

the general notice proposal.44

After receiving these general notices 

on an annual basis some employees who 

previously did not take FMLA leave, 

may choose to do so because they 

acquire additional information from the 

notice regarding the protections 

afforded by the FMLA. Data from Westat 

employee survey reveal that 2.7 percent, 

or 2.4 million, of covered and eligible 

employees needed leave for FMLA 

covered reasons, but did not take it, and 

that 8.6 percent, or 210,000, of covered 

and eligible leave-needers reported that 

they could have afforded to take the 

leave, but had never heard about the 

FMLA.45 The Department also estimates 

that 17.7 percent of covered and eligible 

leave-needers who reported they could 

afford to take leave, but had never heard 

about the FMLA, did not take the leave 

for fear of losing their jobs.46 Assuming 

these workers would now be more 

aware of their FMLA protections they 

would most likely take FMLA leave, the 

Department estimates that the number 

of FMLA leave-takers will increase by 

about 37,000 employees (i.e., 17.7% of 

210,000) because of the proposed 

general notice provision. 

The estimated administrative costs 

associated with these additional 

workers taking FMLA leave is based 

upon the estimate of 1.25 hours of a 

‘‘compensation and benefits specialist’’ 

to process the paperwork for each 

worker at a cost of $36.51 per hour. 

Thus, the administrative burden of 

37,000 additional workers taking FMLA 

leave will cost approximately $1.7 

million. 

Proposed § 825.300(b) consolidates 

the notice provisions contained in 

existing § 825.110(d) and § 825.301(b) 

into a paragraph entitled ‘‘eligibility 

notice.’’ Consistent with current 

§ 825.110, the employer continues to be 

responsible under proposed paragraph 

(b)(1) of this section for communicating 

eligibility status. The proposed 

regulations require that this information 

be conveyed within five business days 

after the employee requests leave or the 

employer acquires knowledge that the 

employee’s leave may be for an FMLAqualifying reason (a change from the 

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47This estimate is consistent with the data 

presented in WorldatWork, FMLA Perspectives and 

Practices: Survey of WorldatWork Members, April 

2005, Figure 6, p. 7. 

48Currently up to 2 notices are required each 

year. 

49This estimate is consistent with the data 

presented in WorldatWork, FMLA Perspectives and 

Practices: Survey of WorldatWork Members, April 

2005, Figure 6, p. 7. 

50 Id., Figure 9a, p. 8. 

51This is an upper bound estimate because it is 

based upon the assumption that the workers will 

take some FMLA leave each month and that a 

designation notice will be required every month. 

Clearly, some workers with FMLA certifications for 

chronic health conditions do not take FMLA leave 

every month. Moreover, although the current 

regulations do not specifically address the 

designation of unforeseen intermittent leave, the 

RFI record suggests that many employers are 

already sending out designation notices for this 

type of FMLA leave to avoid any potential legal 

liability. 

52Additional Annual Cost = (Annual Number of 

Notices Required—2 Current Notices) × $12.2 

million. 

current requirement of two business 

days). 

Proposed § 825.300(b)(2) specifies 

what information an employer must 

convey when communicating with the 

employee as to eligibility status. While 

not required under the current 

regulations, the proposal requires the 

employer to notify the employee 

whether leave is still available in the 

applicable 12-month period. If the 

employee is not eligible or has no FMLA 

leave available, then, pursuant to 

proposed (b)(2), the notice must indicate 

the reasons why the employee is not 

eligible or that the employee has no 

FMLA leave available. In proposing 

these new notice requirements, the 

Department believes there will be very 

little additional burden, since the 

employer is already required to 

calculate such information in order to 

determine eligibility. Moreover, any 

additional reporting burden will likely 

be more than offset by the benefit of 

changing the notification requirement 

from two to five days. Providing more 

time will reduce mistakes and provide 

greater certainty in the workplace, and 

this typically benefits both workers and 

employers. 

Similarly, proposed § 825.300(c) 

outlines the proposed requirements of 

the designation notice an employer 

must provide to an employee, currently 

located in § 825.208(b). This proposed 

designation notice requires that an 

employer notify the employee within 

five business days (a change from the 

current requirement of two business 

days) that the leave is designated as 

FMLA leave once the employer has 

sufficient information to make such a 

determination. 

Proposed § 825.300(c)(3) explicitly 

permits an employer to provide an 

employee with both the eligibility and 

designation notice at the same time in 

cases where the employer has adequate 

information to designate leave as FMLA 

leave when an employee requests the 

leave. 

The Department estimates that the 

changes related to increasing the time 

permitted to provide the notices and the 

ability to combine the notices will save 

employers on average about 15 minutes 

of a ‘‘compensation and benefits 

specialist’’ time in processing each 

leave. At a cost of $36.51 per hour, 

saving 0.25 hours on each of the 

estimated 10.5 million leaves taken 

results in a savings of about $95.8 

million. However, these savings are 

offset by the cost of the new 

requirement that an employer notify the 

employee if the leave is not designated 

as FMLA leave due to insufficient 

information or a non-qualifying reason 

and the cost of providing more 

information to employees in the 

designation notices (see below). 

Proposed § 825.300(c) requires that an 

employer notify the employee if the 

leave is not designated as FMLA leave. 

As was noted above, CONSAD 

estimated that 12.7 million covered 

employees request leave each year. 

Subtracting the estimated 10.5 million 

FMLA leaves from the number of 

requests for FMLA leave yields an 

estimated 2.2 million FMLA leave 

requests denied each year. Based upon 

an estimated 0.5 hours to process each 

of these requests at a cost of $36.51 per 

hour, the Department estimates that 

notifying the 2.2 million workers why 

their requests for FMLA has been 

denied will results in a cost to 

employers of about $40.2 million. 

Proposed § 825.300(c)(1) requires 

employers to inform their employees of 

the number of hours, days, or weeks, if 

possible, designated as FMLA leave. To 

estimate the impact of this change, the 

Department assumes it would take an 

additional 10 minutes of a 

‘‘compensation and benefits specialist’’

time to process each designation 

because of the new requirement to 

provide the amount of time that will be 

designated as FMLA leave.47 Based 

upon 10.5 million leaves, this will result 

in about $65.9 million in additional 

costs. 

Moreover, where the amount of future 

leave that will be needed by an 

employee is unknown, such as for 

workers with chronic conditions, 

proposed § 825.300(c)(1) requires that 

the notice of the amount of leave 

designated and counted be provided 

every 30 days, to the extent that the 

employee took leave for the condition in 

the prior 30-day period. Currently, the 

regulations do not specifically address 

the designation of the particular amount 

of unforeseen, intermittent leave used. 

Current § 825.208 requires an employer 

to designate leave as FMLA-qualifying 

leave, and current § 825.301(c) requires 

that the notice of an employee’s specific 

obligations must be provided no less 

often than once every six months, but 

they do not expressly address the 

number of days or hours of leave used. 

To estimate the impact of this change, 

the Department assumes that for 

workers with chronic conditions (either 

temporary or permanent) an additional 

10 notices 48 will have to be provided 

each year and that each notice will take 

about 10 minutes of a ‘‘compensation 

and benefits specialist’’ time to 

process.49 According to the 

WorldatWork survey, 28.6 percent of 

absences result from either chronic or 

permanent/long term conditions.50

Assuming that this applies to leave 

takers, the Department estimates that 10 

additional designation notices will have 

to be sent to about 2 million workers 

(i.e., 28.6% of 7 million) taking FMLA 

for either chronic or permanent/long 

term conditions each year at a cost of 

$121.9 million (i.e., 2 million × 10 

notices × 0.167 hour × $36.51 per 

hour).51 The Department has not 

estimated the cost of alternative 

notification frequencies (e.g., every 60 

days, every three months, etc.) because 

the cost of this revision depends solely 

on the frequency of the designation 

notices.52 The Department, however, 

requests comment on its assumption 

that 10 additional designation notices 

would be required each year under the 

proposed language of § 825.300(c)(1) 

and whether some alternative frequency 

for employers to provide the designation 

notices is more appropriate than the 

proposed frequency of every 30 days. 

The net impact of all of the revisions 

discussed in this subsection, therefore, 

will be a net cost of about $139.0 

million. 

Changes Related to Employees Notifying 

Their Employers (§§ 825.302, .303 and 

.304) 

The current regulations require an 

employee to notify his or her employer 

of the need for leave and generally to 

schedule leave for planned medical 

treatments in a way that the absences do 

not unduly disrupt the employer’s 

business operations. These proposed 

revisions are intended to reduce the 

impact of unforeseeable intermittent 

leave and uncertainty in the workplace 

without negatively impacting leaveneeders. 

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53Society for Human Resource Management, 

FMLA and Its Impact on Organizations, Figure 7, 

p. 17, available at: http://www.shrm.org/ 

hrresources/surveys_published/FMLA%20

And%20Its%20Impact%20On%20Organizations

%20Survey%20Report.pdf. 

54 Janemarie Mulvey, PhD, Employment Policy 

Foundation Issue Backgrounder, ‘‘The Cost and 

Characteristics of Family and Medical Leave,’’ April 

19, 2005, p. 3. ‘‘With respect to providing notice 

prior to taking FMLA leave, the survey results show 

that nearly 50 percent of all FMLA leave takers do 

not provide notice before the day the leave is taken. 

According to the survey, in over 30 percent of cases, 

employees provide notice after the leave has 

started. In another 11 percent of cases, employees 

providing notice [sic] at the time the leave begins 

or immediately after.’’

55RFI Report, 72 FR at 35631. 

56 Id. at 35633. 

57 Id. at 35635. 

58 Id. at 35633. 

59According to the October 2007 BLS 

Employment Report. 

60The wage plus benefits represents the marginal 

cost of the absent employee. In a perfectly 

competitive market, this would be equal to the 

marginal revenue brought in by that employee. 

Therefore, one hour of compensation is used as a 

proxy for the opportunity cost of having the worker 

missing for an hour. 

61See the later discussion on the possible impacts 

on highly time-sensitive industries. 

62The Department received a number of 

comments in response to the RFI that suggest some 

employees may be misusing FMLA leave to avoid 

their employers’ attendance policies (see Chapter 

IV, Section B.2, of the RFI Report, 72 FR at 35571). 

However, as noted in the RFI Report, the 

Department cannot assess from the record how 

much leave taking is actual ‘‘abuse’’ and how much 

is legitimate, and therefore cannot estimate what 

impact this proposal would have on the alleged 

misuse of FMLA leave. 

Under the Department’s proposal, an 

employee must provide notice as soon 

as practicable, meaning feasible under 

the circumstances, and must comply 

with the employer’s usual procedures 

for calling in and requesting leave, 

except when extraordinary 

circumstances exist such as when the 

employee or covered family member 

needs emergency medical treatment. 

The Department expects that in all but 

the most extraordinary circumstances, 

employees will be able to provide notice 

to their employers of the need for leave 

prior to the start of their shift. The 

proposed changes should reduce some 

of the uncertainty and disruptions 

caused by employees taking 

unforeseeable FMLA leave with little or 

no advance notice to their employers. 

As was noted in the RFI Report, 

unscheduled leave is more disruptive to 

employers than foreseeable leave. By its 

very definition, foreseeable FMLA leave 

can be anticipated and planned for as 

employees are aware of their need in 

advance and can easily notify their 

employers prior to taking FMLA leave. 

Even in cases where the exact timing of 

the leave is not known 30 days in 

advance, the Department believes that 

most employees taking foreseeable 

FMLA will easily be able to comply 

with their employers’ leave policies (see 

discussion in preamble). On the other 

hand, by its very nature, unforeseeable 

leave presents difficulties for both 

employees and their employers, 

particularly as to the requirement that 

the employee provide notice of the need 

for leave as soon as practicable. 

According to a 2007 survey conducted 

by the Society for Human Resource 

Management (SHRM), 34 percent of 

FMLA leave takers for episodic 

conditions did not provide notice before 

the day the leave was taken and 12 

percent provided notice more than one 

day after the leave was taken.53

Therefore, according to SHRM’s survey 

about 46 percent of employees are not 

providing notice prior to the start of 

their workday. This estimate is 

consistent with the findings of the 

Employment Policy Foundation, which 

found that 41 percent of employees are 

not providing notice prior to the start of 

their workday or shift.54 Thus, the 

Department estimates that no notice is 

currently being provided prior to the 

start of the workday for 4.8 million 

leaves (i.e., 46% of 10.5 million leaves). 

It is this late notification that results 

in greatest uncertainty and disruption to 

employers’ business operations. For 

example, it creates significant problems 

if the employer cannot obtain adequate 

staffing; 55 the production process is 

often slowed down or brought to a 

halt; 56 and the situation is particularly 

ominous when the employee works in a 

safety-sensitive position, such as 911 

operators.57 Moreover, workplace 

uncertainty can impact other employees 

who may have to pull double-duty to 

cover for a team member or co-worker.58

There are three anticipated behavioral 

responses that leave-takers will have to 

the proposed provisions. First, most 

leave-takers will simply change their 

notification behavior and notify their 

employers of leaves prior to the start of 

their workday. This change will mean 

that although the leaves are taken, staff 

uncertainty will be reduced and 

employers will have more time to obtain 

a replacement and be in a better 

position to meet staffing needs despite 

the unexpected absence. The 

Department expects that 95 percent or 

4.6 million of the 4.8 million leaves 

where employees are currently not 

providing notification until the start of 

the workday will be in this category. 

Better control of the unforeseen 

absences will reduce the disruptions 

associated with the labor absence. The 

Westat Survey and comments made in 

response to the RFI suggest that the 

most likely response of employers to an 

unforeseen absence of short duration is 

to simply assign the absent employee’s 

work to other employees. However, the 

comments to the RFI also indicate that 

it may take employers some time to 

arrange for coverage, especially in cases 

where the notification of the FMLA 

comes in after the start of the shift. For 

this proposed rule, therefore, DOL has 

used one hour of the average earnings of 

production and nonsupervisory workers 

on private nonfarm payrolls ($17.57) 59

plus 40 percent for benefits as a proxy 

for the cost of an absence without 

sufficient notification. This savings is 

not a productivity savings in the 

traditional sense because there is no 

output and no time involved. Rather, 

the Department is using one hour of 

employees’ compensation 60 as a rough 

estimate of the costs related to the 

uncertainty and disruptions caused by 

unscheduled intermittent FMLA leave 

(e.g., work being left undone until the 

absent employee’s work can be shifted 

to another employee or until another 

employee can cover for the absent 

employee). Further, this estimate is 

limited to the typical impact. If the 

absence of an employee affects the 

productivity of other employees besides 

the one reassigned the task (i.e., in 

highly time-sensitive production 

processes such as manufacturing), this 

may be an underestimate of the effects 

of this provision.61 Thus, the 

Department estimates that more timely 

notifications by employees will result in 

a savings of about $113.2 million to 

employers. The Department specifically 

request comments on the analysis used 

to develop this estimate. 

The second possible response to this 

change is that some workers who 

continue to avoid compliance with their 

employer’s attendance policies may be 

subject to their employer’s disciplinary 

procedures for being absent. No workers 

with a legitimate need for FMLA leave 

will be in this group or decide not to 

take the leave in response to a lastminute emergency because: (1) The 

revisions provide for ‘‘extraordinary 

circumstances’’ (see below); and (2) an 

employee is likely to take leave 

regardless of the interpretation of ‘‘as 

soon as practicable’’ during a serious 

health situation.62

The Department expects that 4.9 

percent or 235,000 of the 4.8 million 

leaves where employees are currently 

not providing notification until the start 

of the workday will be in this category. 

The Department estimates that each of 

the leaves not covered by FMLA will 

save employers’ administration and 

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63The 2000 Westat Report, Table 2.3, p. 2–5. 

64The 2000 Westat Report, Table A2–6.3, p. A–

2–51. 

65The net savings of 15 minutes includes: 1) the 

savings associated with extending the time allowed 

to ‘‘process’’ medical certifications from two to five 

days (providing more time will reduce the number 

of mistakes involved in the medical certification 

process and time required to address and correct 

those mistakes); plus 2) the time saved by allowing 

employers to contact the employee’s health care 

provider directly; less 3) the additional time and 

cost that employers will have to take to provide a 

written explanation of why a medical certification 

is incomplete or insufficient. 

66The Department received a number of 

comments in response to the RFI that suggest some 

employees may be misusing FMLA leave. For 

example, a number of commenters stated that some 

employees appear to be misusing the FMLA rules 

to secure for themselves a preferred schedule (see 

Continued 

reduced operational costs equal to an 

average of about 1 hour of a 

‘‘compensation and benefits 

specialist’s’’ time. At a cost of $36.51 

per hour, this will result in a savings of 

about $8.6 million. 

The third possible response is that 

some leave-takers will have 

‘‘extraordinary circumstances’’ with a 

serious health condition and take leave 

without providing advance notice. 

However, the number of leaves for 

which advance notice cannot be given 

will likely be very small, on the order 

of 0.1 percent of the 4.8 million leaves 

or 48,000. The uncertainty, disruptions, 

and costs associated with this type of 

unscheduled leave for both employers 

and employees are inevitable, 

unavoidable, and will likely continue, 

but the incremental impacts of this 

continued type of leave, relative to the 

current rule, is minimal. 

The net impact of all of the revisions 

discussed in this subsection, therefore, 

will be a net savings of about $121.8 

million. 

Medical Certifications (§§ 825.305, 

825.306 and 825.307) 

Current § 825.305(c) provides that an 

employer should request medical 

certification from the employee within 

two business days of receiving the 

employee notice of the need for leave. 

The Department is proposing to modify 

this time-frame to a five-business-day 

standard. This change is being proposed 

to maintain consistency with the 

modifications being proposed to 

§ 825.300. Providing more time will 

reduce mistakes and provide greater 

certainty in the workplace, and this 

typically benefits both workers and 

employers. 

The Department is also proposing in 

§ 825.305(c) that when an employer 

determines that a medical certification 

is incomplete or insufficient, the 

employer must state in writing what 

additional information is necessary and 

provide the employee with seven 

calendar days to cure the deficiency 

(additional time must be allowed where 

the employee is unable to obtain the 

additional information despite diligent 

good faith efforts). Under the current 

rule no written statement from the 

employer is necessary. 

In § 825.306 the Department is 

proposing several revisions to the 

medical certification form, to implement 

the statutory requirements for 

‘‘sufficiency’’ of the medical 

certification as set forth in 29 U.S.C. 

2613(b) and to make it easier for health 

care providers to understand and 

complete. The Department has revised 

its optional form (Form WH–380) for 

employees or their family members to 

use in obtaining medical certifications 

and second and third opinions from a 

health care provider. 

There are three proposed changes to 

§ 825.307. First, the proposed provision 

clarifies the limited nature of the 

authentication process and removes the 

requirement that employees consent to 

authentication of the certification. 

Second, the proposal allows employers 

to contact the employee’s health care 

provider directly, rather than through a 

third-party health care provider that 

represents the employer, provided the 

contact between the provider and the 

employer comply with the privacy rule 

under the Health Insurance Portability 

and Accountability Act (HIPAA). Third, 

the new provision extends the time 

allowed for an employer to provide the 

results of second and third opinions of 

medical certifications from two business 

days to five. 

According to the 2000 Westat Report, 

73.6 percent of leave-takers took leave 

for a serious health condition (either 

their own or for a covered family 

member),63 and 92 percent of covered 

establishments required medical 

documentation for covered leave due to 

a serious health condition.64 The 

Department estimates that these 

provisions will affect about 7.1 million 

FMLA leaves taken for serious health 

conditions (i.e., 7.0 million leave-takers 

× 73.6% × 1.5 leaves × 92% = 7.1 

million). The Department also estimates 

that these changes, as well as the 

changes discussed above, will result in 

a net savings to employers of on average 

about 15 minutes of a ‘‘compensation 

and benefits specialist’’ time in 

processing each leave request.65 At a 

cost of $36.51 per hour, saving 0.25 

hours on each of the estimated 7.1 

million leaves taken results in a savings 

of about $64.8 million for employers. 

In response to the RFI, some 

employee groups stated that it was often 

very challenging for workers to obtain 

certifications because the ambiguities on 

the form made it difficult for their 

health care providers to address 

deficiencies noted by their employers. 

The proposed revisions will make it 

easier for employees to understand what 

is required and will reduce uncertainty 

as to whether the condition qualifies as 

a serious health condition under the 

FMLA. In addition, the Department 

expects that employees will have to 

make fewer trips and phone calls to 

their health care providers to obtain 

‘‘complete and sufficient’’ certifications, 

although the Department has not 

quantified this impact. 

In response to the RFI, some health 

care providers expressed their 

frustration with the current form and 

the amount of time required to provide 

their patients with ‘‘complete and 

sufficient’’ certifications. The 

Department expects that the proposed 

clarifications will decrease the burden 

on health care providers and possibly 

reverse the trend of increasing numbers 

of health care providers charging their 

patients for filling out the medical 

certification forms. 

Recertifications (§ 825.308) and 

Certifications for Fitness-for-Duty 

(§ 825.310) 

Consistent with Wage and Hour 

Opinion Letter FMLA2004–2–A (May 

25, 2004), the proposed change to 

§ 825.308(e) of the FMLA would allow 

employers to send the absence schedule 

of an employee to a health care provider 

and to ask the health care provider 

whether or not the employee’s pattern of 

intermittent leave use is congruent with 

the employee’s qualifying medical 

condition. Further, consistent with the 

existing regulation, proposed 

§ 825.308(b) explains that if a minimum 

duration for the leave is specified, the 

employer may not request recertification 

until that time period has expired but 

adds that, in all cases, recertifications 

may be requested every six months. 

Thus, the Department assumes that this 

clarification will not impact either 

employers or employees. The proposed 

change to § 825.308(e) will, however, 

provide employers with a tool to 

determine if the employee’s pattern of 

FMLA leave is consistent with their 

condition, or possible misuse. However, 

as noted in the RFI Report, the 

Department cannot assess from the 

record how much leave taking is actual 

‘‘abuse’’ and how much is legitimate, 

and therefore can not estimate what 

impact this proposal would have on the 

alleged misuse of FMLA leave.66

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Chapter IV, Section B, of the RFI Report, 72 FR at 

35575). However, the RFI Report also noted that 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 (see Chapter XI, Section L, of the RFI 

Report, Id. at 35635). 

67A number of comments to the RFI questioned 

employee leave patterns. 

68The 2000 Westat Report, Table 2.3, p. 2–5. The 

establishment survey also found that 37.8 percent 

of FMLA leave-takers took leave for their own 

serious health condition; Table 3.8, p. 3–16. 

69Average cost of physicians’ assistants from the 

Bureau of Labor Statistics, National Compensation 

Survey, 2005. The average hourly wage was 

multiplied by 1.4 to account for benefits. 

70Comments to the RFI indicate that many health 

care providers are now charging fees for FMLA 

certifications. It should be noted that the 

Department expects the majority of these fees will 

be paid by workers’ health insurance. According to 

the Bureau of Labor Statistics, 2007 National 

Compensation Survey, unpublished data, 90 

percent of establishments with 50 or more 

employees offer health care benefits, and 81 percent 

of workers in those establishments have access to 

those health care benefits. Further, employers with 

50 or more employees paid for 81 percent of health 

insurance premiums for single coverage, and 73 

percent for family coverage. 

71The 2000 Westat Report, Table 2.3, p. 2–5; and 

those that answered yes to Question A5B of 

Westat’s employee Questionnaire. 

72See the preamble for a discussion and examples 

of the term ‘‘reasonable safety concerns.’’

73The Department assumed a lower rate here 

because of the additional ‘‘reasonable safety 

concern’’ requirement on employer’s ability to 

require a fitness-for-duty certification for 

intermittent leave. 

74The Department assumes that workers with 

chronic conditions are under doctors’ care so that 

for most workers the added cost of the certifications 

will only be the charge for the doctor to fill out the 

forms, which will probably cost less than $50. 

Other workers will, of course, require medical 

examinations, which will probably cost more than 

$50. 

75 It should be noted that the Department expects 

the majority of these costs will be paid by workers’

health insurance. See footnote 70. 

Current § 825.310(c) states that a 

fitness-for-duty certification need only 

be a simple statement of the employee’s 

ability to return to work. The proposed 

provision allows a fitness-for-duty 

certification similar to that of the initial 

medical certification of the FMLA leave. 

The Department is also proposing in 

§ 825.310(g) that an employer be 

permitted to require an employee to 

furnish a fitness-for-duty certificate 

every 30 days if an employee has used 

intermittent leave during that period 

and reasonable safety concerns exist. 

For example, if a bus driver takes 

intermittent leave for a serious health 

condition that may influence his or her 

ability to drive safely over the road, then 

a fitness-for-duty certification is 

permitted. Finally, the Department is 

proposing in § 825.310(c) that, 

consistent with the HIPAA Privacy 

Rule, employers may contact an 

employee’s health care provider 

directly, rather than through a thirdparty health care provider which 

represents the employer, for purposes of 

clarifying and authenticating the fitnessfor-duty certification. 

These proposed changes have several 

important impacts. First, they would 

better protect the safety and health of 

workers taking leave, and their 

coworkers. Second, § 825.310(c) will 

reduce administrative burdens. Third, 

the proposed change to § 825.308(e) will 

reduce uncertainty in the workplace by 

permitting an employer to determine if 

an employee’s pattern of leave is 

consistent with the serious health 

condition.67

The additional information needed for 

a fitness-for-duty certification is likely 

to result in additional costs. The 2000 

Westat Report found that 52.4 percent of 

workers took leave for their own serious 

health condition;68 and the Department 

assumes that 10 percent of these leavetakers, or 367,000 workers, are required 

to have a fitness-for-duty certification to 

return to work (i.e., 7.0 million workers 

× 52.4% × 10.0% = 367,000). Their 

health care providers will have to take 

an additional 10 minutes to provide the 

additional information on the proposed 

fitness-for-duty certification, and this 

additional time will cost an average of 

$51.06 per hour.69 Thus, health care 

providers are likely to incur about $4.7 

million in additional costs and these 

costs are likely to be shifted to 

employees in the form of higher fees for 

filling out the certifications.70

Although employers will take longer 

to review these certifications, the 

Department assumes that these costs 

will be offset by the ability of employers 

to directly contact the workers’ health 

care providers. 

The proposal in § 825.310(g) to permit 

an employer to require an employee to 

furnish a fitness-for-duty certificate 

every 30 days if an employee has used 

intermittent leave during that period 

and reasonable safety concerns exist is 

likely to impact very few workers. The 

2000 Westat Report found that 52.4 

percent of workers took leave for their 

own serious health condition and 23.9 

percent of those workers took it 

intermittently.71 The Department 

assumes that 5 percent of these leavetakers, or 44,000 workers, will be 

required to have a fitness-for-duty 

certification where reasonable safety 

concerns exist 72 in order to return to 

work from intermittent leave (i.e., 7.0 

million workers taking FMLA leave × 

52.4% × 23.9% × 5.0% = 44,000).73 On 

average the Department assumes these 

44,000 workers will be required to 

provide three fitness-for-duty 

certifications for the intermittent leave 

they take, and obtaining each of these 

132,000 certifications will cost an 

average of $50.74 Thus, the revised 

provision will likely cost workers about 

$6.6 million per year.75

To estimate the impact of these 

additional certifications on employers, 

the Department assumed that it would 

take an additional 30 minutes of a 

‘‘compensation and benefits 

specialist’s’’ time at a cost of $36.51 per 

hour to request and process each 

certification. Based upon 132,000 

fitness-for-duty certifications, this will 

result in about $2.4 million in 

additional costs for employers. 

Although the net impact of the 

revisions discussed in this subsection 

will be a net cost of about $2.4 million 

for employers and $11.3 million for 

employees, the proposed revisions to 

§ 825.310(g) will increase workplace 

safety by making sure that workers are 

healthy enough to return to work and do 

not pose a safety risk to themselves and 

others. However, data limitations inhibit 

the Department from estimating the 

number of workers who may be 

impacted by this proposal, or 

quantifying the resulting safety benefit. 

Summary of Impacts 

The Department estimates that the 

proposed revisions will result in a total 

first year net costs of about $26.1 

million, and a net savings of about $33.9 

million, each year thereafter (and this 

does not include the additional savings 

expected in the time-sensitive highimpact industries that are discussed in 

the next section). 

For employers, the most significant 

costs will be the first year cost of 

reviewing and implementing the 

proposed revisions and the cost of 

providing employees with additional 

and more specific notifications. After 

the first year, however, these costs will 

be more than offset by the reduction in 

administrative costs and increased 

productivity resulting from employees 

providing better notice of their need for 

FMLA leave (see previous discussion of 

§§ 825.302, 825.303 and 825.304). 

Although the vast majority of FMLA 

leave-takers will see no difference, the 

Department estimates that employees 

will incur $11.3 million in additional 

expenses related to taking FMLA leave, 

primarily as the result of the increased 

number of certifications that they will 

have to provide their employers. 

However, since these costs are primarily 

related to health care, a large portion is 

likely to be paid by the employee’s 

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76Bureau of Labor Statistics, National 

Compensation Survey, 2007, unpublished data. 

77For example, New York City noted: ‘‘The 

situation is particularly ominous when the 

employee works in a safety-sensitive position, such 

as 911 operators, or other employees requiring faceto-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.’’

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.’’ For a complete discussion, see Section K 

of Chapter XI of the Department’s Report on the RFI 

(72 FR at 35632). 

78 Jeffrey A. Eisenach, Assessing the Costs of the 

Family and Medical Leave Act, Criterion 

Economics, February 16, 2007, p. 6. (Doc. 10172A 

in response to RFI.) 

health insurance, some of which is 

financed by employers. According to the 

Bureau of Labor Statistics, 2007 

National Compensation Survey, 90 

percent of establishments with 50 or 

more employees offer health care 

benefits, and 81 percent of workers in 

those establishments have access to 

those health care benefits. Further, 

employers with 50 or more employees 

paid for 81 percent of health insurance 

premiums for single coverage, and 73 

percent for family coverage.76

Table 6 presents a summary of the 

impacts discussed above. 

TABLE 6.—SUMMARY OF THE MAJOR IMPACTS OF THE PROPOSED REVISIONS

Provision 

Cost to 

employers 

($ millions) 

Employees 

or health in 

($ millions) 

Reviewing and Implementing Revisions * ........................................................................................................................ $60.0 N/A 

§ 825.300 ......................................................................................................................................................................... 139.0 N/A 

§ 825.302, § 825.303 and § 825.304 ................................................................................................................................ ¥121.8 N/A 

§ 825.305, § 825.306 and § 825.307 ................................................................................................................................ ¥64.8 N/A 

§ 825.308 and § 825.310 ................................................................................................................................................. 2.4 $11.3 

First Year Impact of Major Revisions .............................................................................................................................. 14.8 11.34 

Recurring Impact of Major Revisions .............................................................................................................................. ¥45.2 11.3 

* First Year Impact, only. 

Source: U.S. Department of Labor. 

Although these impacts are 

substantial, the Department has 

determined that they do not account for 

all of the impacts that can be reasonably 

anticipated from the proposed revisions. 

The Department expects that the impact 

that the revisions will have in the highly 

time-sensitive operations will add to the 

benefits. Analyses of these impacts are 

presented below, however, because of 

data limitations the Department has not 

attempted to quantify these benefits. 

Impact of the Revisions on Highly TimeSensitive Operations 

Comments in response to the RFI 

indicate that firms in industries with 

time-sensitive operations incur greater 

costs than the typical establishments. 

These vulnerable industries include 

manufacturing, health care, 

transportation, public safety, and 

communications. For example, 

unexpectedly absent employees in these 

industries can disrupt assembly lines for 

manufacturing, delay the take-off of 

commercial airliners, and jeopardize 

adequate staffing in public safety 

positions.77 This section discusses the 

impacts the proposed revisions will 

have on highly time-sensitive 

operations. 

Untimely notification of an absence of 

a high-impact employee can have a 

more costly effect in highly timesensitive industries than others. 

Examples provided in response to the 

RFI indicate that if an employer is 

unable to plan for the absence of a highimpact employee in one of these 

industries because of late notification, 

the following disruptive events can 

occur: 

• Manufacturing assembly lines may 

be interrupted if there is not a stand-by 

employee to take the absent employee’s 

place. 

• Passengers are delayed and 

productivity losses increase if an airline 

pilot, flight attendant, bus driver, or 

train engineer does not show up for 

work at their expected time. 

• Adequate public safety may not be 

provided when police officers, 

emergency dispatch workers, fire 

fighters, and paramedic shifts are not 

fully covered because of inadequate 

notice. 

The conventional economic 

assumption is that the wage rate 

represents the value of the marginal 

product for the occupation and/or the 

industry. This was the reason in the 

previous sections that wage rates were 

used as a proxy of the cost of the 

disruption caused by the absence of a 

worker taking unscheduled FMLA 

leave. However, this assumption does 

not hold in highly time-sensitive 

operations because of the asymmetrical 

nature of their operations. 

Workers’ wages are primarily based 

upon their average output. Yet, in timesensitive operations the absence of a 

single worker can sometimes result in 

disruptions that cost far in excess of the 

value of the worker’s average output or 

wage. For example, a worker’s absence 

may cause expensive equipment and 

other workers to be idled. In these 

situations, the worker’s average 

compensation or productivity cannot be 

used to estimate the total welfare cost of 

the absence. 

‘‘Data on the productivity impact of FMLA, 

while potentially probative, cannot by itself 

be used to estimate welfare effects accurately. 

While it is broadly true that reductions in 

productivity reduce economic welfare, the 

magnitude of the reduction depends on how 

the effect is distributed across inputs and 

industries. 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. Similarly, a reduction 

in total factor productivity in an industry 

producing products for which there are few 

economic substitutes will have a larger effect 

on economic welfare than one affecting an 

industry producing a product with many 

substitutes. In the latter case, consumers will 

simply shift their purchases away from the 

products of the less productive industry, 

suffering little or no loss in consumer 

surplus. For these and other reasons, 

economists do not generally attempt to 

measure the impact of policies on economic 

welfare effects by tracking their effects on 

productivity.’’ 78

This situation is akin to the peak 

demand situation at an electric utility 

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79 Id. at 8. 

80See RFI Report, 72 FR at 35632. 

81 Id. 

company. Most customers are charged 

rates equal to the average cost of power 

generation. During periods of peak 

demand (when the marginal high-cost 

equipment is pressed into service and 

when the utility is sometimes forced to 

buy power to meet customer demands), 

the utility may take a loss on the sale 

of power. However, this loss is made up 

when demand drops so that the utility 

can generate the needed power at a 

much lower rate. This is why electric 

utilities offer customers variable rates 

tied to overall power demand. By 

charging higher rates during periods 

when power is more expensive to 

supply (so-called peak load pricing), 

this pricing structure motivates 

customers to cut back on their power 

use during periods of high or peak 

demand. 

The U.S. labor market is not perfectly 

competitive. For instance, some labor 

laws and regulations limit the flexibility 

of employers and employees to enter 

into some mutually agreeable 

arrangements. Moreover, most 

employers cannot use peak load pricing 

to vary the wages paid to their 

employees based upon the demand at 

that moment. 

[The] FMLA may inhibit the market’s 

ability to allocate labor efficiently among 

firms (and jobs among workers). Both firms 

and workers display heterogeneity with 

respect to values they place on absenteeism. 

In 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. If the effect of worker absence on 

a company’s productivity is relatively 

modest, economists classify that firm as 

operating a so called linear production 

technology. Firms whose productivity is 

more sensitive to absenteeism are said to 

employ assembly line technologies. 

Companies relying on assembly line 

production techniques depend to a much 

greater extent on coordinated efforts of labor 

and machinery. Therefore, the absence of a 

single employee has a ripple effect 

throughout the organization.79

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.’’ The 

United Parcel Service, Inc. 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.’’ 80

In many situations, the absence of just 

a few employees can have a significant 

impact. For example, with 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 require their employees to 

work overtime to cover the absent 

employee’s work. Both of these options 

result in additional costs.81

Unfortunately, without an accurate 

production function for each of these 

industries, it is not possible to 

quantitatively estimate the impact that 

the absence of these workers, including 

unforeseen absences, will have on the 

time-sensitive operations. However, to 

the extent the proposed rule reduces the 

cost of uncertainty in staffing, timesensitive operations are likely to see 

larger productivity benefits than other 

industries. 

Appendix A: Potential Impact of Section 

585(a) of H.R. 4986, the National 

Defense Authorization Act for FY 2008 

Introduction 

As discussed in the preamble above, 

Section 585(a) of H.R. 4986, the 

National Defense Authorization Act for 

FY 2008, amends the FMLA to provide 

leave to eligible employees of covered 

employers to care for covered 

servicemembers, or for any qualifying 

exigency arising out of the fact that a 

covered family member is on active 

duty or has been notified of an 

impending call to active duty status in 

support of a contingency operation. The 

provisions of H.R. 4986 providing 

FMLA leave to care for a covered 

servicemember became effective on 

January 28, 2008, when the law was 

enacted. The provisions of H.R. 4986 

providing for FMLA leave due to a 

qualifying exigency arising out of a 

covered family member’s active duty (or 

call to active duty) status are not 

effective until the Secretary of Labor 

issues regulations defining ‘‘qualifying 

exigencies.’’ Because a significant 

number of United States military are 

currently on active duty or call to active 

duty status, the Department is fully 

aware of the need to issue regulations 

under the military family leave 

provisions of H.R. 4986 as soon as 

possible and is seeking public comment 

on any issues related to military family 

leave that may need to be addressed in 

final regulations. 

This appendix to the PRIA indentifies 

the potential number of covered and 

eligible workers who may be impacted 

by the military family leave provisions 

of H.R. 4986. Commenters are invited to 

submit any data relating to the 

economic impact of the military family 

leave provisions of H.R. 4986. 

Estimating such impacts is required 

under Executive Order 12866. 

Impact of Section 585(a) of H.R. 4986 on 

the Number of FMLA Covered 

Employers and Eligible Workers 

Section 585(a) of H.R. 4986 has no 

impact on the number of establishments 

covered by the FMLA, or on the number 

of workers eligible to take FMLA. 

Therefore, many of the estimates 

presented in the Chapter 1 of the PRIA 

(e.g., number of covered employers, 

covered establishments, workers 

employed at covered establishments and 

FMLA eligible workers) remain the 

same. 

Impact of Section 585(a) of H.R. 4986 on 

the Number of Workers Who May Take 

FMLA Leave 

Under the new military family leave 

provisions of H.R. 4986, workers who 

are eligible to take FMLA leave will be 

permitted to take protected leave under 

two new circumstances (i.e., to care for 

covered servicemembers, or for any 

qualifying exigency arising out of the 

fact that a covered family member is on 

active duty or has been notified of an 

impending call to active duty status in 

support of a contingency operation). 

Since both of these circumstances are 

related to family relationships with 

servicemembers, the first step in 

estimating the number of workers who 

may take FMLA Leave under the 

military family leave provisions of H.R. 

4986 was to develop a family profile of 

servicemembers. 

Using data from the Defense 

Manpower Data Center, the Current 

Population Survey (CPS), and the 

Decennial Census of Population, 

CONSAD developed a model to estimate 

the number of parents, spouses, and 

adult sons and daughters of 

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82CONSAD Report, 2007, available at: http:// 

www.wagehour.dol.gov. CONSAD developed 

estimates for S. 1894 which did not include 

coverage of ‘‘next of kin’’ or ‘‘nearest blood relative’’

as H.R. 4986 does. 83The Department’s estimates are based upon the 

dictionary definition of son and daughter rather 

than the definition in the FMLA. As was discussed 

in the Preamble above, this is an important 

distinction, since the FMLA defines ‘‘son or 

daughter’’ to mean a biological, adopted, or foster 

child, a stepchild, a legal ward, or a child of a 

person standing in loco parentis, who is either 

under 18 years of age, or 18 years of age or older 

and incapable of self-care because of a mental or 

physical disability. Under the definition of ‘‘son or 

daughter’’ in FMLA, very few FMLA-eligible sons 

or daughters would be able to provide care to a 

covered servicemember with a serious injury or 

illness since, in order to meet the FMLA eligibility 

criteria, a son or daughter ages 18 and over must 

be incapable of self-care and would presumably be 

unable to care for a parent with a serious injury or 

illness. Further, very few parents would have 

FMLA-eligible sons or daughters who are called to 

active duty in the armed forces because, to be 

covered by the current FMLA definition of ‘‘son or 

daughter,’’ such sons or daughters must either be 

(1) under the age of 18 or (2) 18 years or older and 

incapable of self-care. (Only about 35,000 of the 1.4 

million active duty servicemembers are under 18 

years of age). 

84For a more detailed explanation of the 

methodology see Appendix A in the CONSAD 

Report, 2007. 

85According to the Bureau of Labor Statistics, the 

employment population ratio for civilians 16 years 

and over was 63% in 2007. CONSAD adjusted this 

upwards by 5% (3 percentage points) to 66% to 

account for the fact the working children of 

servicemembers are significantly younger than the 

overall workforce and the employment-population 

ratio of older workers is significantly lower than 

that of the overall workforce (e.g., the employment 

population ratio of workers 55 years and over was 

37.4 in 2007). 

86The estimated 77.1 million FMLA eligible 

workers under Title I of the FMLA plus the 2.6 

million Federal employees covered by Title 2 of the 

FMLA comprise about 60 percent of U.S. civilian 

employment. 

87 Department of Labor estimate based on 3,082 

divided by 4.1 years (the elapsed time for the 

Commission’s estimate). 

88This assumption is based on preliminary 

discussions between the Departments of Defense 

and Labor. 

89Based on the methodology in the CONSAD 

Report, 2007. It is possible for a seriously injured 

servicemember to have more than one caregiver 

such as a spouse, parent, and brother or sister. 

servicemembers.82 A summary of the 

methodology used by CONSAD to 

develop its estimates of the number of 

parents, spouses, and sons and 

daughters of servicemembers eligible to 

take FMLA leave is presented below. 

CONSAD estimated the number of 

parents by first computing, for CPS 

reference persons in a set of age ranges 

that are compatible with the age ranges 

of servicemembers in general, the 

numbers and proportions of married 

males living with spouses, married 

females living with spouses, married 

males living separately, married females 

living separately, separated males, 

separated females, divorced males, 

divorced females, widowed males, 

widowed females, never married males, 

and never married females reported in 

the CPS for each age range. 

Next, CONSAD made adjustments for 

the expected separate inclusion of both 

parents of the same child or children in 

two different categories (married living 

separately, separated, or divorced), for 

the expected remarriage of widowed or 

divorced parents, and for the expected 

death of both parents of some children. 

Then, CONSAD summed the adjusted 

estimates within each age range, to 

produce estimates of the proportion of 

people with parents in that age range 

who can be expected to have zero, one, 

or two living parents. For the estimate 

of the number of guardians and persons 

in loco parentis, CONSAD assumed that 

all servicemembers age 17 and 18 with 

no living parents would have one 

guardian or a person in loco parentis. 

CONSAD estimated the proportion of 

servicemembers with spouses using data 

from the Defense Manpower Data 

Center. 

CONSAD estimated the number of 

dependent adult children among 

servicemembers in different age ranges 

based upon data from the CPS.83 First, 

CONSAD estimated the number of 

dependent children among 

servicemembers in different age ranges. 

Then based on those estimates, 

CONSAD estimated the number of 

children 16 years of age and over with 

parents in the age range of the military 

servicemembers to produce 

distributions of the number of children 

16 years of age and over among 

servicemembers in each age range. 

To calculate employment rates for 

parents and spouses who might need to 

take military family leave, CONSAD 

used the employment rates for age 

ranges expected to be associated with 

the age range of the military 

servicemembers.84 CONSAD assumed 

that the employment rate of adult 

children who might need to take 

military family leave was 66 percent.85

CONSAD also assumed that 60 percent 

of employed workers who might need to 

take military family leave would be 

FMLA covered and eligible.86

Impact of Leave to Care for Covered 

Servicemembers With Serious Injuries 

or Illnesses 

Section 585(a) of H.R. 4986 amends 

the FMLA to permit an ‘‘an eligible 

employee who is the spouse, son, 

daughter, parent, or next of kin of a 

covered servicemember’’ to ‘‘a total of 

26 workweeks of leave during a 12- 

month period to care for the 

servicemember.’’ This provision will be 

codified in the FMLA at 29 U.S.C. 

2612(a)(3). 

According to the President’s 

Commission on Care for America’s 

Returning Wounded Warriors, 3,082 

servicemembers have been seriously 

injured since the beginning of hostilities 

in Iraq, or about 750 seriously injured 

servicemembers per year.87 Assuming 

that an equal number of servicemembers 

have been seriously injured during 

preparation or training for combat, the 

total annual number is about 1,500.88

Further, preliminary estimates from the 

Department of Defense suggest that the 

DOD Disability System separates (with 

benefits) 14,000 servicemembers 

annually. Consequently, at any one time 

the Department estimates that there are 

1,500 to 14,000 seriously injured 

servicemembers whose potential 

caregivers may be eligible for FMLA 

leave under Section 585(a) of H.R. 4986. 

Based on the assumption that the age 

distribution of seriously wounded 

servicemembers is the same as the age 

distribution of all military 

servicemembers deployed in Iraq or 

Afghanistan, the Department used 

CONSAD’s model to compute the 

numbers of servicemembers with 

serious injuries or illnesses who will 

have no potential caregivers, and one, 

two, three, four, or five or more 

potential caregivers who may be eligible 

for FMLA leave.89 The results of this 

analysis are presented in Table A–1. 

TABLE A–1.—THE DISTRIBUTION OF SERVICEMEMBERS WITH SERIOUS INJURIES OR ILLNESSES BY AGE AND THE NUMBER

OF POTENTIAL CAREGIVERS

Age of 

service-member 

Number of 

servicemembers 

Number of servicemembers with serious injuries or illnesses with n caregivers, where n = 

0 1 2 3 4 5+ 

17–18 ....................................................................................................... 63 0 6 57 1 0 0 

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90For a more detailed explanation of the 

methodology used to develop this estimate see 

Appendix A in the CONSAD Report, 2007. Further, 

since CONSAD’s analysis did not account for the 

eligibility of next of kin, the Department also 

assumed each seriously injured and ill 

servicemember would be likely to have at least one 

FMLA-eligible caregiver. 

91CONSAD Report, 2007, available at: http:// 

www.wagehour.dol.gov. 

92Based on the methodology in the CONSAD 

Report, 2007. It is possible for a servicemember on 

active duty or on call to active duty in support of 

a contingency operation to have more than one 

family member (such as a spouse, parent, and 

brother or sister) eligible for leave for a qualified 

exigency. 

TABLE A–1.—THE DISTRIBUTION OF SERVICEMEMBERS WITH SERIOUS INJURIES OR ILLNESSES BY AGE AND THE NUMBER

OF POTENTIAL CAREGIVERS—Continued 

Age of 

service-member 

Number of 

servicemembers 

Number of servicemembers with serious injuries or illnesses with n caregivers, where n = 

0 1 2 3 4 5+ 

19–20 ....................................................................................................... 298 0 25 259 15 0 0 

21–22 ....................................................................................................... 233 0 19 190 25 0 0 

23–24 ....................................................................................................... 204 0 14 145 44 0 0 

25–26 ....................................................................................................... 165 0 9 99 56 0 0 

27–28 ....................................................................................................... 128 0 7 67 53 0 0 

29–30 ....................................................................................................... 103 0 5 47 51 0 0 

31–32 ....................................................................................................... 64 0 3 25 36 0 0 

33–34 ....................................................................................................... 63 0 3 25 35 0 0 

35–36 ....................................................................................................... 49 0 2 18 27 1 0 

37–39 ....................................................................................................... 53 0 3 17 27 4 1 

40–44 ....................................................................................................... 55 0 3 16 24 8 4 

45–49 ....................................................................................................... 19 0 1 5 6 4 3 

50+ ........................................................................................................... 7 0 1 2 2 2 2 

Total .................................................................................................. 1,500 0 98 972 402 18 10

Note: Some numbers may not sum due to rounding. 

Source: U.S. Department of Labor, based on CONSAD 2007. 

Of the 1,500 servicemembers with 

serious injuries or illnesses, 98 are 

likely to have one caregiver, 972 are 

likely to have two caregivers, 402 are 

likely to have three caregivers, and 28 

are likely to have four or more 

caregivers. Based upon Table A–1, the 

Department estimates that under the 

assumption of 1,500 servicemembers 

with serious injuries or illnesses each 

year, 3,370 caregivers would be 

available (i.e., 3,370 = 98 + 972 × 2 + 

402 × 3 + 18 × 4 + 10 × 5); however, 

not all of these caregivers are employed. 

Utilizing the CONSAD model described 

above, the Department estimates that 

there is about 1,900 potential FMLA 

covered and eligible caregivers for the 

1,500 seriously injured and ill 

servicemembers under Section 585(a) of 

H.R. 4986.90

Alternatively, preliminary estimates 

from the Department of Defense suggest 

that the DOD Disability System 

separates (with benefits) or retires 

14,000 servicemembers annually. Using 

CONSAD’s model and assuming each 

seriously injured and ill servicemember 

would have at least one FMLA-eligible 

caregiver, the Department estimates 

there would be about 17,700 potential 

caregivers for servicemembers who are 

separated through the DOD Disability 

System every year. 

Thus, the Department estimates that 

between 1,900 and 17,700 potential 

caregivers of servicemembers with 

serious injuries or illnesses would be 

eligible for protected FMLA leave under 

Section 585(a) of H.R. 4986. 

Impact of Leave for Qualifying Exigency 

Section 585(a) of H.R. 4986 also adds 

an additional qualifying reason to take 

FMLA leave: ‘‘[b]ecause of any 

qualifying exigency (as the Secretary 

shall, by regulation, determine) arising 

out of the fact that the spouse, or a son, 

daughter, or parent of the employee is 

on active duty (or has been notified of 

an impending call or order to active 

duty) in the Armed Forces in support of 

a contingency operation.’’ This 

provision will be codified in the FMLA 

at 29 U.S.C. 2612(a)(1)(E). 

Preliminary estimates from the 

Department of Defense suggest that 

there are approximately 339,000 

servicemembers currently deployed on 

or activated for contingency operations. 

Based on these numbers, the 

Department used the model in the 

CONSAD Report to develop estimates of 

the number of FMLA covered and 

eligible workers who would take leave 

for a qualifying exigency.91 Based on the 

age distribution of active duty 

servicemembers, the Department 

estimated the number of currently 

deployed or activated personnel in 

contingency operations by age and 

number of family members potentially 

eligible for qualifying exigency leave.92

The results of this analysis are 

presented in Table A–2. 

TABLE A–2.—DISTRIBUTION OF SERVICEMEMBERS DEPLOYED ON OR ACTIVATED FOR ACTIVE DUTY IN SUPPORT OF

CONTINGENCY OPERATIONS BY AGE AND NUMBER OF COVERED FAMILY MEMBERS

Age of 

service-member 

Thousands 

of 

servicemembers 

Thousands of servicemembers with n family members, 

where n = 

0 1 2 3 4 5+ 

17–18 ....................................................................................................... 9 0 1 8 0 0 0 

19–20 ....................................................................................................... 39 0 3 34 2 0 0 

21–22 ....................................................................................................... 49 0 4 40 5 0 0 

23–24 ....................................................................................................... 43 0 3 31 9 0 0 

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93For a more detailed explanation of the 

methodology used to develop this estimate see 

Appendix A in the CONSAD Report, 2007, available 

at: http://www.wagehour.dol.gov. 

94The Department estimates that 7.0 million 

workers took FMLA leave under the current statute 

in 2005; 332,000 to 348,000 additional workers 

represents an increase of 4.7 to 5.0 percent. 

95For example, only one family member may 

choose to act as the caregiver even though other 

family members are eligible to take family leave 

(e.g., two spouses may be eligible to take FMLA 

leave for a seriously ill child but only one may 

choose to do so). 

TABLE A–2.—DISTRIBUTION OF SERVICEMEMBERS DEPLOYED ON OR ACTIVATED FOR ACTIVE DUTY IN SUPPORT OF

CONTINGENCY OPERATIONS BY AGE AND NUMBER OF COVERED FAMILY MEMBERS—Continued 

Age of 

service-member 

Thousands 

of 

servicemembers 

Thousands of servicemembers with n family members, 

where n = 

0 1 2 3 4 5+ 

25–26 ....................................................................................................... 35 0 2 21 12 0 0 

27–28 ....................................................................................................... 27 0 1 14 11 0 0 

29–30 ....................................................................................................... 22 0 1 10 11 0 0 

31–32 ....................................................................................................... 19 0 1 8 11 0 0 

33–34 ....................................................................................................... 19 0 1 7 11 0 0 

35–36 ....................................................................................................... 18 0 1 6 10 1 0 

37–39 ....................................................................................................... 23 0 1 8 12 2 0 

40–44 ....................................................................................................... 25 0 1 7 11 3 2 

45–49 ....................................................................................................... 8 0 1 2 3 2 1 

50+ ........................................................................................................... 3 0 0 1 1 1 1 

Total .................................................................................................. 339 0 21 197 108 8 4 

Note: Some numbers may not sum due to rounding. 

Source: U.S. DOL/Employment Standards Administration estimates based upon the model used in CONSAD 2007, and Department of Defense data. 

Of the 339,000 servicemembers 

deployed on or activated for 

contingency operations, about 21,000 

are likely to have one covered family 

member, 197,000 are likely to have two 

covered family members, 108,000 are 

likely to have three covered family 

members, and 12,000 are likely to have 

four or more covered family members. 

Based upon Table A–2, the Department 

estimates 792,000 adult family members 

would be impacted by servicemembers’

call to active duty for a contingency 

operation (i.e., 792 = 21 + 197 × 2 + 108 

× 3 + 8 × 4 + 4 × 5); however, not all 

of these family members are employed. 

Utilizing the CONSAD model described 

above, the Department estimates that 

about 330,000 potential FMLA covered 

and eligible family members would be 

eligible to take leave for any qualifying 

exigency under Section 585(a) of H.R. 

4986.93

Estimated Impacts 

Based upon the preceding analyses, 

the Department estimates that the 

number of employees eligible to take 

FMLA leave under Section 585(a) of 

H.R. 4986 range from 332,000 to 348,000 

workers. Although some of these 

workers may already be taking FMLA 

leave for other covered conditions, some 

may not. If the leave usage among the 

workers eligible to take FMLA leave 

under the new military family leave 

provisions of H.R. 4986 and the costs of 

such leave are similar to current FMLA 

leave takers, then one would expect the 

costs of the FMLA to potentially 

increase by as much as 5 percent based 

upon the potential increased number of 

FMLA eligible workers with qualifying 

reasons to take FMLA leave.94 However, 

there are other factors that must be 

considered. 

• H.R. 4986 does not change the 

scope of the FMLA in terms of the 

establishments covered or the eligibility 

of workers. Many of the costs of the 

FMLA are related to the coverage of the 

establishment or the eligibility of 

workers rather than the number of 

workers taking leave. Since the former 

will not change, assuming a 5 percent 

cost increase may be an over-estimate. 

• The Department estimates that the 

number of employees eligible to take 

FMLA leave under the new military 

family leave provisions of H.R. 4986 

range from 332,000 to 348,000 workers. 

However, just as all workers eligible to 

take FMLA leave do not take FMLA 

leave when they or a qualified family 

member have a serious health 

condition,95 similarly, not all employees 

eligible to take FMLA leave under the 

new military family leave provisions of 

H.R. 4986 will take such leave. 

Therefore, assuming a 5 percent cost 

increase may be an over-estimate. 

The Department requests information 

and data related to the impacts of 

workers taking FMLA leave and how 

these impacts might apply to workers 

taking FMLA under the additional 

qualifying circumstances permitted 

under Section 585(a) of H.R. 4986. 

Regulatory Flexibility Act 

The Regulatory Flexibility Act 

requires that agencies prepare initial 

regulatory flexibility analyses for 

proposed rules unless they are not 

expected to have a significant economic 

impact on a substantial number of small 

entities. 5 U.S.C. 603, 605(b). 

The FMLA applies to public agencies 

and to private sector employers that 

employ 50 or more employees for each 

working day during 20 or more calendar 

weeks in the current or preceding 

calendar year. 29 U.S.C. 2611(4). In 

addition, the FMLA excludes employees 

from eligibility for FMLA leave if the 

total number of employees employed by 

that employer within 75 miles of that 

worksite is less than 50. 29 U.S.C. 

2611(2)(B)(ii). As explained in the 

FMLA’s legislative history, ‘‘[t]he act 

exempts small businesses and limits 

coverage of private employers to 

employers who employ 50 or more 

employees for each working day during 

20 or more calendar weeks in the 

current or preceding calendar year. 

* * * The employer must, in addition, 

employ at least 50 people within a 75- 

mile radius of the employee’s worksite.’’

S. Rep. No. 103–3, at 2 (1993). 

The Department has examined the 

impact of these proposed revisions on 

all the firms covered under the FMLA, 

including those with 50 to 500 

employees, and has estimated the net 

impact of the proposed changes would 

reduce the overall costs for all firms, 

both large and small. Most small 

businesses (establishments), 89.4 

percent, were excluded from coverage 

under the FMLA by Congress. However, 

6.3 percent of establishments with less 

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96The Department of Labor based these estimates 

on the Westat 2000 establishment survey data. 

97This estimate is based on the first year costs of 

$14.8 million (see Table 6 of the PRIA) and 1.1 

million establishments (see Table 4 of the PRIA). 

98This estimate is based on the recurring savings 

of $45.2 million (see Table 6 of the PRIA) and 1.1 

million establishments (see Table 4 of the PRIA). 

99Estimates based upon Table 2.2 on page 7 of 

the 2007 CONSAD Report available at: http:// 

www.wagehour.dol.gov. Estimates presented above 

were developed by summing the CONSAD 

estimates for Public Utilities, Public Transit, Public 

Educational Services and Public Administration. 

Note, however that CONSAD did not have an 

estimate for the number of establishments in public 

utilities. 

100This estimate is based on the first year costs 

for all covered establishments of $14.8 million (see 

Table 6 of the PRIA) and 1.1 million establishments 

(see Table 4 of the PRIA). [Note—these numbers are 

all employers, not just State and local government 

entities.] 

101This estimate is based on the recurring savings 

for all covered establishments of $45.2 million (see 

Table 6 of the PRIA) and 1.1 million establishments 

(see Table 4 of the PRIA). 

102State and local governmental entities employ 

about one-quarter (19 million) of the 77 million 

workers covered by Title I of the FMLA. One 

quarter of $200 million is $50 million. 

103See Table 2.2 on page 7 of the 2007 CONSAD 

Report. The $591 billion estimate was the sum of 

the payrolls in Public Utilities, Public Transit, 

Public Educational Services and Public 

Administration. 

than 50 employees are covered by the 

Act due to the ‘‘75 mile’’ provision in 

the statute. The Department estimates 

that 633,000 of the 1.1 million covered 

establishments, or 55.8 percent, have 

less than 50 employees. Another 

481,000 establishments have 50 to 500 

employees. Clearly, this is a substantial 

number (although small percentage—

10.6%) of small employers.96

On average the proposed rule is 

estimated to have a net cost for these 

small businesses of $13 in the first 

year,97 and a net recurring savings of 

$40 per small business every year after 

that.98 Consequently, the Department 

has determined that because the 

proposed revisions primarily clarify the 

existing rules and reduce overall costs 

to all firms (both large and small), the 

proposed rule as drafted will not have 

a significant economic impact on a 

substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act and the Department has 

certified to this effect to the Chief 

Counsel for Advocacy of the SBA. 

Therefore, an initial regulatory 

flexibility analysis is not required for 

this proposed rule. 

However, the new military family 

leave provisions of H.R. 4986 will result 

in an increase in the annual number of 

FMLA leaves taken. If these additional 

leaves significantly increase the 

economic impacts imposed by the 

FMLA regulation on a substantial 

number of small businesses, then a 

regulatory flexibility analysis will be 

required. 

Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act 

of 1995, 2 U.S.C. 1501 et seq, requires 

agencies to prepare a written statement 

that identifies the: (1) Authorizing 

legislation; (2) cost-benefit analysis; (3) 

macro-economic effects; (4) summary of 

State, local, and tribal government 

input; and (5) identification of 

reasonable alternatives and selection, or 

explanation of non-selection, of the least 

costly, most cost-effective or least 

burdensome alternative; for proposed 

rules that include any Federal mandate 

that may result in increased 

expenditures by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

inflation adjusted in any one year, or 

approximately $135 million in 2007 

dollars. 

(1) Authorizing Legislation 

This rule is issued pursuant to Family 

and Medical Leave Act of 1993 (FMLA), 

Public Law 103–3, 107 Stat. 6 (29 U.S.C. 

2601 et seq.). 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. 

Title I of the FMLA applies to private 

sector employers of fifty or more 

employees, public agencies and certain 

Federal employers and entities, such as 

the U.S. Postal Service and Postal 

Regulatory Commission. While Title I 

generally covers employers with 50 or 

more employees, public agencies are 

covered employers without regard to the 

number of workers employed. 

The FMLA references the definition of 

employee in the Fair Labor Standards 

Act, 29 U.S.C. 203(e) so that most 

individuals employed by a State, 

political subdivision of a State, or 

interstate governmental agency meet the 

definition of employee. 

(2) Cost-Benefit Analysis 

Based upon Table 2.2 in the CONSAD 

Report, the Department estimates that 

approximately 90,000 State and local 

governmental entities will be affected by 

the proposed rule. Nationwide, these 

entities employ more than 19 million 

workers and their annual payrolls are 

$591 billion.99

The Department’s Preliminary 

Regulatory Impact Analysis (PRIA) 

includes estimates of the net costs 

associated with the proposed rule. The 

Department estimates that the proposed 

revisions will result in a total first year 

net costs of about $26.1 million, and a 

net savings of about $33.9 million, each 

year thereafter. Moreover, this does not 

include the additional savings expected 

in the time-sensitive high-impact 

operations such as public safety. 

On average the proposed rule is 

estimated to have a net cost per 

employer, including State and local 

governmental entities, of $13 in the first 

year,100 and a net recurring savings of 

$40 per such entities every year after 

that.101 Consequently, the Department 

concludes that the primary impact of 

the proposed revisions will be to reduce 

the burden of the FMLA regulations on 

employers, including State and local 

governmental entities. 

The most significant costs associated 

with the proposed revisions will be the 

first year cost of reviewing and 

implementing the proposed revisions 

($60 million) and the cost of providing 

employees with additional and more 

specific notifications ($139 million). 

Based upon their share of covered 

employment, the share of these first year 

costs for State and local governmental 

entities will be about $50 million, and 

the share of the first year costs for the 

private sector will be about $149 

million.102

Under the worst case assumption that 

no offsetting savings will occur to the 

State and local entities during the first 

year, these $50 million first year costs 

would be equivalent to raising State and 

local payrolls by less than onehundredth percent (0.01 percent) of the 

$591 billion in total payrolls103 for those 

entities for a single year. Therefore, we 

have tentatively concluded that even 

under the worst case scenario, this 

rulemaking does not increase 

expenditures by State, local, and tribal 

governments above the current 

unfunded mandate threshold. 

Under the worst case assumption that 

no offsetting savings will occur to the 

private sector during the first year, we 

estimate that the first year impacts do 

exceed the approximately $135 million 

threshold under the Act for the private 

sector. The Department feels that this 

scenario is very unlikely, however, and 

that the net expenditures of the private 

sector will be less than the Unfunded 

Mandates threshold. The Department 

specifically requests comment on this 

conclusion. Nevertheless, we believe the 

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104OMB Guidance on Implementing Title II of 

S.1, March 31, 1995 Memorandum from Sally 

Kazten to the Heads of Executive Departments and 

Agencies, available at http://www.fws.gov/policy/ 

library/rgkatze.pdf. 

105All 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 http://www.regulations.gov. 

106Also available at http://www.dol.gov/esa/whd/ 

fmla2007report.htm. 

cost-benefit analysis provided pursuant 

to the requirements under Executive 

Order 12866 for this economically 

significant rulemaking would meet the 

requirements for analysis under the 

Unfunded Mandates Reform Act. 

The above analysis does not include 

an assessment of the impact of the new 

military family leave provisions of H.R. 

4986. The Department anticipates that 

the new military family leave provisions 

of H.R. 4986 will increase the annual 

number of FMLA leaves taken. If these 

additional leaves increase the economic 

impacts imposed by the FMLA 

regulation on State and local entities, 

then the Department will appropriately 

revise this analysis for the final rule. 

The FMLA does not provide for 

Federal financial assistance or other 

Federal resources to meet the 

requirements of its intergovernmental 

mandates. The Federal mandate 

imposed by this proposed rule is not 

expected to have a measurable effect on 

health, safety, or the natural 

environment. 

(3) Macro-Economic Effects 

Agencies are expected to estimate the 

effect of a regulation on the national 

economy, such as the effect on 

productivity, economic growth, full 

employment, creation of productive 

jobs, and international competitiveness 

of United States goods and services, if 

accurate estimates are reasonably 

feasible and the effect is relevant and 

material. 5 U.S.C. 1532(a)(4). However, 

OMB guidance on this requirement 

notes that such macro-economic effects 

tend to be measurable in nationwide 

econometric models only if the 

economic impact of the regulation 

reaches 0.25 percent to 0.5 percent of 

gross domestic product, or in the range 

of $1.5 billion to $3.0 billion.104 A 

regulation with smaller aggregate effect 

is not likely to have a measurable 

impact in macro-economic terms unless 

it is highly focused on a particular 

geographic region or economic sector, 

which is not the case with this proposed 

rule. 

The Department’s PRIA estimates that 

the total aggregate economic impact of 

this proposed rule ranges from total first 

year net costs of about $26.1 million to 

total net savings of about $33.9 million, 

each year thereafter. Therefore, the 

Department has determined that a full 

macro-economic analysis is not likely to 

show any measurable impact on the 

economy. However, the analysis in the 

PRIA does not include an assessment of 

the impact of the new military family 

leave provisions of H.R. 4986. The 

Department anticipates that the new 

military family leave provisions of H.R. 

4986 will increase the annual number of 

FMLA leaves taken. If these additional 

leaves substantially increase the 

economic impacts imposed by the 

FMLA regulation, then the Department 

will appropriately reassess this 

conclusion for the final rule. 

(4) Summary of State, Local, and Tribal 

Government Input 

On December 1, 2006, the Department 

published a Request for Information 

(RFI) in the Federal Register (71 FR 

69504). The RFI asked the public, 

including State, local, and tribal 

governments, to comment on their 

experiences with, and observations of, 

the Department’s administration of the 

law and the effectiveness of the FMLA 

regulations. More than 15,000 

comments were received from workers, 

family members, employers, academics, 

and other interested parties.105 This 

input ranged from personal accounts, 

legal reviews, industry and academic 

studies, and surveys, to 

recommendations for regulatory and 

statutory changes to address particular 

areas of concern. The Department 

published a Report on the comments 

received in response to the 

Department’s RFI in June 2007 (see 72 

FR 35550).106

The Department received in response 

to the RFI a number of comments from 

various State and local government 

entities across the country, including 

the City of Philadelphia, the City of 

Gillette, the City of Portland , the City 

of New York, the City of Los Angeles, 

Ohio Department of Administrative 

Services, the Ohio Public Employer 

Labor Relations Association, the 

Commonwealth of Pennsylvania, the 

Indiana State Personnel Department, 

Spokane County, the University of 

Wisconsin-Milwaukee, Fairfax County 

Public Schools, the University of 

Minnesota, Washington Metropolitan 

Area Transit Authority, Metro Regional 

Transit Authority (Akron, Ohio), the 

Port Authority of Allegheny County 

(PA), the Transit Authority (Huntington, 

WV), and the Milwaukee Transport 

Services. Many of these entities 

provided input, for instance, on 

applying uniform call-in procedures and 

seeking medical re-certifications and 

return to work certifications. The 

comments by State and local 

government entities were considered by 

the Department in developing this 

proposed rule and are addressed above 

under the sections of the rule on which 

they commented (see, e.g., preamble 

discussion of §§ 825.302, 825.303, 

825.308, and 825.310). 

(5) Least Burdensome Option or 

Explanation Required 

The Department’s consideration of 

various options is described in the 

preceding section in the preamble. The 

Department believes that it has chosen 

the least burdensome option that 

updates, clarifies, and simplifies the 

rule. 

Executive Order 13132 (Federalism) 

The proposed rule does not have 

federalism implications as outlined in 

Executive Order 13132 regarding 

federalism. The proposed rule does not 

have substantial direct effects on the 

states, on the relationship between the 

national government and the states, or 

on the distribution of power and 

responsibilities among the various 

levels of government. 

Executive Order 13175, Indian Tribal 

Governments 

This proposed rule was reviewed 

under the terms of Executive Order 

13175 and determined not to have 

‘‘tribal implications.’’ The proposed rule 

does not have ‘‘substantial direct effects 

on one or more Indian tribes, on the 

relationship between the Federal 

government and Indian tribes, or on the 

distribution of power and 

responsibilities between the Federal 

government and Indian tribes.’’ As a 

result, no tribal summary impact 

statement has been prepared. 

Effects on Families 

The undersigned hereby certify that 

this proposed rule will not adversely 

affect the well-being of families, as 

discussed under section 654 of the 

Treasury and General Government 

Appropriations Act, 1999. 

Executive Order 13045, Protection of 

Children 

Executive Order 13045, dated April 

23, 1997 (62 FR 19885), applies to any 

rule that (1) is determined to be 

‘‘economically significant’’ as defined in 

Executive Order 12866, and (2) concerns 

an environmental health or safety risk 

that the promulgating agency has reason 

to believe may have a disproportionate 

effect on children. This proposal is not 

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7960 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 

subject to Executive Order 13045 

because, although this proposed rule 

addresses family and medical leave 

provisions of the FMLA including the 

rights of employees to take leave for the 

birth or adoption of a child and to care 

for a healthy newborn or adopted child, 

and to take leave to care for a son or 

daughter with a serious health 

condition, it has no environmental 

health or safety risks that may 

disproportionately affect children. 

Environmental Impact Assessment 

A review of this proposal in 

accordance with the requirements of the 

National Environmental Policy Act of 

1969 (NEPA), 42 U.S.C. 4321 et seq.; the 

regulations of the Council on 

Environmental Quality, 40 CFR 1500 et 

seq.; and the Departmental NEPA 

procedures, 29 CFR part 11, indicates 

that the proposed rule will not have a 

significant impact on the quality of the 

human environment. There is, thus, no 

corresponding environmental 

assessment or an environmental impact 

statement. 

Executive Order 13211, Energy Supply 

This proposed rule is not subject to 

Executive Order 13211. It will not have 

a significant adverse effect on the 

supply, distribution, or use of energy. 

Executive Order 12630, Constitutionally 

Protected Property Rights 

This proposal is not subject to 

Executive Order 12630, because it does 

not involve implementation of a policy 

‘‘that has takings implications’’ or that 

could impose limitations on private 

property use. 

Executive Order 12988, Civil Justice 

Reform Analysis 

This proposed rule was drafted and 

reviewed in accordance with Executive 

Order 12988 and will not unduly 

burden the Federal court system. The 

proposed rule was: (1) Reviewed to 

eliminate drafting errors and 

ambiguities; (2) written to minimize 

litigation; and (3) written to provide a 

clear legal standard for affected conduct 

and to promote burden reduction. 

List of Subjects in 29 CFR Part 825 

Employee benefit plans, Health, 

Health insurance, Labor management 

relations, Maternal and child health, 

Teachers. 

Signed at Washington, DC, this 31st day of 

January 2008. 

Victoria A. Lipnic, 

Assistant Secretary, Employment Standards 

Administration. 

Alexander J. Passantino, 

Acting Administrator, Wage and Hour 

Division. 

For the reasons set out in the 

preamble, the DOL proposes to revise 

Title 29 part 825 of the Code of Federal 

Regulations as follows: 

PART 825—THE FAMILY AND 

MEDICAL LEAVE ACT OF 1993 

Subpart A—Coverage Under the Family and 

Medical Leave Act 

Sec. 

825.100 The Family and Medical Leave Act. 

825.101 Purpose of the Act. 

825.102 [Reserved] 

825.103 [Reserved] 

825.104 Covered employer. 

825.105 Counting employees for 

determining coverage. 

825.106 Joint employer coverage. 

825.107 Successor in interest coverage. 

825.108 Public agency coverage. 

825.109 Federal agency coverage. 

825.110 Eligible employee. 

825.111 Determining whether 50 employees 

are employed within 75 miles. 

825.112 Qualifying reasons for leave, 

general rule. 

825.113 Serious health condition. 

825.114 Inpatient care. 

825.115 Continuing treatment. 

825.116 [Reserved] 

825.117 [Reserved] 

825.118 [Reserved] 

825.119 Leave for treatment of substance 

abuse. 

825.120 Leave for pregnancy or birth. 

825.121 Leave for adoption or foster care. 

825.122 Definitions of spouse, parent, son 

or daughter, adoption, and foster care. 

825.123 Unable to perform the functions of 

the position. 

825.124 Needed to care for a family 

member. 

825.125 Definition of health care provider. 

Subpart B—Employee Leave Entitlements 

Under the Family and Medical Leave Act 

825.200 Amount of leave. 

825.201 Leave to care for a parent. 

825.202 Intermittent leave or reduced leave 

schedule. 

825.203 Scheduling of intermittent or 

reduced schedule leave. 

825.204 Transfer of an employee to an 

alternative position during intermittent 

leave or reduced schedule leave. 

825.205 Increments of leave for intermittent 

or reduced schedule leave. 

825.206 Interaction with the FLSA. 

825.207 Substitution of paid leave. 

825.208 [Reserved] 

825.209 Maintenance of employee benefits. 

825.210 Employee payment of group health 

benefit premiums. 

825.211 Maintenance of benefits under 

multi-employer health plans. 

825.212 Employee failure to pay health 

plan premium payments. 

825.213 Employer recovery of benefit costs. 

825.214 Employee right to reinstatement. 

825.215 Equivalent position. 

825.216 Limitations on an employee’s right 

to reinstatement. 

825.217 Key employee, general rule. 

825.218 Substantial and grievous economic 

injury. 

825.219 Rights of a key employee. 

825.220 Protection for employees who 

request leave or otherwise assert FMLA 

rights. 

Subpart C—Employee and Employer Rights 

and Obligations Under the Act 

825.300 Employer notice requirements. 

825.301 Employer designation of FMLA 

leave. 

825.302 Employee notice requirements for 

foreseeable FMLA leave. 

825.303 Employee notice requirements for 

unforeseeable FMLA leave. 

825.304 Employee failure to provide notice. 

825.305 Medical certification, general rule. 

825.306 Content of medical certification. 

825.307 Authentication and clarification of 

medical certification. 

825.308 Recertifications. 

825.309 Intent to return to work. 

825.310 Fitness-for-duty certification. 

825.311 Failure to provide medical 

certification. 

Subpart D—Enforcement Mechanisms 

825.400 Enforcement, general rules. 

825.401 Filing a complaint with the Federal 

Government. 

825.402 Violations of the posting 

requirement. 

825.403 Appealing the assessment of a 

penalty for willful violation of the 

posting requirement. 

825.404 Consequences for an employer 

when not paying the penalty assessment 

after a final order is issued. 

Subpart E—Recordkeeping Requirements 

825.500 Recordkeeping requirements. 

Subpart F—Special Rules Applicable to 

Employees of Schools 

825.600 Special rules for school employees, 

definitions. 

825.601 Special rules for school employees, 

limitations on intermittent leave. 

825.602 Special rules for school employees, 

limitations on leave near the end of an 

academic term. 

825.603 Special rules for school employees, 

duration of FMLA leave. 

825.604 Special rules for school employees, 

restoration to ‘‘an equivalent position.’’

Subpart G—Effect of Other Laws, Employer 

Practices, and Collective Bargaining 

Agreements on Employee Rights Under 

FMLA 

825.700 Interaction with employer’s 

policies. 

825.701 Interaction with State laws. 

825.702 Interaction with Federal and State 

anti-discrimination laws. 

Subpart H—Definitions 

825.800 Definitions. 

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Appendix A to Part 825—Index [Reserved] 

Appendix B to Part 825—Certification of 

Health Care Provider (Form WH–380) 

Appendix C to Part 825—Notice to 

Employees of Rights Under FMLA (WH 

Publication 1420) 

Appendix D to Part 825—Eligibility Notice to 

Employees Under FMLA (Form WH–

381) 

Appendix E to Part 825—Designation Notice 

Under FMLA (Form WH–382) 

Authority: 29 U.S.C. 2654. 

Subpart A—Coverage Under the 

Family and Medical Leave Act 

§ 825.100 The Family and Medical Leave 

Act. 

(a) The Family and Medical Leave Act 

of 1993 (FMLA or Act) allows ‘‘eligible’’

employees of a covered employer to take 

job-protected, unpaid leave, or to 

substitute appropriate paid leave if the 

employee has earned or accrued it, for 

up to a total of 12 workweeks in any 12 

months because of the birth of a child 

and to care for the newborn child, 

because of the placement of a child with 

the employee for adoption or foster care, 

because the employee is needed to care 

for a family member (child, spouse, or 

parent) with a serious health condition, 

or because the employee’s own serious 

health condition makes the employee 

unable to perform the functions of his 

or her job (see § 825.306(b)(4)). In 

certain cases, this leave may be taken on 

an intermittent basis rather than all at 

once, or the employee may work a parttime schedule. 

(b) An employee on FMLA leave is 

also entitled to have health benefits 

maintained while on leave as if the 

employee had continued to work 

instead of taking the leave. If an 

employee was paying all or part of the 

premium payments prior to leave, the 

employee would continue to pay his or 

her share during the leave period. The 

employer may recover its share only if 

the employee does not return to work 

for a reason other than the serious 

health condition of the employee or the 

employee’s covered family member, or 

another reason beyond the employee’s 

control. 

(c) An employee generally has a right 

to return to the same position or an 

equivalent position with equivalent pay, 

benefits, and working conditions at the 

conclusion of the leave. The taking of 

FMLA leave cannot result in the loss of 

any benefit that accrued prior to the 

start of the leave. 

(d) The employer has a right to 30 

days advance notice from the employee 

where practicable. In addition, the 

employer may require an employee to 

submit certification from a health care 

provider to substantiate that the leave is 

due to the serious health condition of 

the employee or the employee’s covered 

family member. Failure to comply with 

these requirements may result in a delay 

in the start of FMLA leave. Pursuant to 

a uniformly applied policy, the 

employer may also require that an 

employee present a certification of 

fitness to return to work when the 

absence was caused by the employee’s 

serious health condition (see §§ 825.310 

and 825.311(d)). The employer may 

delay restoring the employee to 

employment without such certificate 

relating to the health condition which 

caused the employee’s absence. 

§ 825.101 Purpose of the Act. 

(a) FMLA is intended to allow 

employees to balance their work and 

family life by taking reasonable unpaid 

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. The Act is 

intended to balance the demands of the 

workplace with the needs of families, to 

promote the stability and economic 

security of families, and to promote 

national interests in preserving family 

integrity. It was intended that the Act 

accomplish these purposes in a manner 

that accommodates the legitimate 

interests of employers, and in a manner 

consistent with the Equal Protection 

Clause of the 14th amendment in 

minimizing the potential for 

employment discrimination on the basis 

of sex, while promoting equal 

employment opportunity for men and 

women. 

(b) The enactment of FMLA was 

predicated on two fundamental 

concerns—the needs of the American 

workforce, and the development of 

high-performance organizations. 

Increasingly, America’s children and 

elderly are dependent upon family 

members who must spend long hours at 

work. When a family emergency arises, 

requiring workers to attend to seriouslyill children or parents, or to newly-born 

or adopted infants, or even to their own 

serious illness, workers need 

reassurance that they will not be asked 

to choose between continuing their 

employment, and meeting their personal 

and family obligations or tending to 

vital needs at home. 

(c) The FMLA is both intended and 

expected to benefit employers as well as 

their employees. A direct correlation 

exists between stability in the family 

and productivity in the workplace. 

FMLA will encourage the development 

of high-performance organizations. 

When workers can count on durable 

links to their workplace they are able to 

make their own full commitments to 

their jobs. The record of hearings on 

family and medical leave indicate the 

powerful productive advantages of 

stable workplace relationships, and the 

comparatively small costs of 

guaranteeing that those relationships 

will not be dissolved while workers 

attend to pressing family health 

obligations or their own serious illness. 

§ 825.102 [Reserved] 

§ 825.103 [Reserved] 

§ 825.104 Covered employer. 

(a) An employer covered by FMLA is 

any person engaged in commerce or in 

any industry or activity affecting 

commerce, who employs 50 or more 

employees for each working day during 

each of 20 or more calendar workweeks 

in the current or preceding calendar 

year. Employers covered by FMLA also 

include any person acting, directly or 

indirectly, in the interest of a covered 

employer to any of the employees of the 

employer, any successor in interest of a 

covered employer, and any public 

agency. Public agencies are covered 

employers without regard to the number 

of employees employed. Public as well 

as private elementary and secondary 

schools are also covered employers 

without regard to the number of 

employees employed. (See § 825.600.) 

(b) The terms ‘‘commerce’’ and 

‘‘industry affecting commerce’’ are 

defined in accordance with section 

501(1) and (3) of the Labor Management 

Relations Act of 1947 (LMRA) (29 U.S.C. 

142(1) and (3)), as set forth in the 

definitions at § 825.800 of this part. For 

purposes of the FMLA, employers who 

meet the 50-employee coverage test are 

deemed to be engaged in commerce or 

in an industry or activity affecting 

commerce. 

(c) Normally the legal entity which 

employs the employee is the employer 

under FMLA. Applying this principle, a 

corporation is a single employer rather 

than its separate establishments or 

divisions. 

(1) Where one corporation has an 

ownership interest in another 

corporation, it is a separate employer 

unless it meets the ‘‘joint employment’’

test discussed in § 825.106, or the 

‘‘integrated employer’’ test contained in 

paragraph (c)(2) of this section. 

(2) Separate entities will be deemed to 

be parts of a single employer for 

purposes of FMLA if they meet the 

‘‘integrated employer’’ test. Where this 

test is met, the employees of all entities 

making up the integrated employer will 

be counted in determining employer 

coverage and employee eligibility. A 

determination of whether or not 

separate entities are an integrated 

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employer is not determined by the 

application of any single criterion, but 

rather the entire relationship is to be 

reviewed in its totality. Factors 

considered in determining whether two 

or more entities are an integrated 

employer include: 

(i) Common management; 

(ii) Interrelation between operations; 

(iii) Centralized control of labor 

relations; and 

(iv) Degree of common ownership/ 

financial control. 

(d) An ‘‘employer’’ includes any 

person who acts directly or indirectly in 

the interest of an employer to any of the 

employer’s employees. The definition of 

‘‘employer’’ in section 3(d) of the Fair 

Labor Standards Act (FLSA), 29 U.S.C. 

203(d), similarly includes any person 

acting directly or indirectly in the 

interest of an employer in relation to an 

employee. As under the FLSA, 

individuals such as corporate officers 

‘‘acting in the interest of an employer’’

are individually liable for any violations 

of the requirements of FMLA. 

§ 825.105 Counting employees for 

determining coverage. 

(a) The definition of ‘‘employ’’ for 

purposes of FMLA is taken from the Fair 

Labor Standards Act, § 3(g). The courts 

have made it clear that the employment 

relationship under the FLSA is broader 

than the traditional common law 

concept of master and servant. The 

difference between the employment 

relationship under the FLSA and that 

under the common law arises from the 

fact that the term ‘‘employ’’ as defined 

in the Act includes ‘‘to suffer or permit 

to work.’’ The courts have indicated 

that, while ‘‘to permit’’ requires a more 

positive action than ‘‘to suffer,’’ both 

terms imply much less positive action 

than required by the common law. Mere 

knowledge by an employer of work 

done for the employer by another is 

sufficient to create the employment 

relationship under the Act. The courts 

have said that there is no definition that 

solves all problems as to the limitations 

of the employer/employee relationship 

under the Act; and that determination of 

the relation cannot be based on 

‘‘isolated factors’’ or upon a single 

characteristic or ‘‘technical concepts,’’

but depends ‘‘upon the circumstances of 

the whole activity’’ including the 

underlying ‘‘economic reality.’’ In 

general an employee, as distinguished 

from an independent contractor who is 

engaged in a business of his/her own, is 

one who ‘‘follows the usual path of an 

employee’’ and is dependent on the 

business which he/she serves. 

(b) Any employee whose name 

appears on the employer’s payroll will 

be considered employed each working 

day of the calendar week, and must be 

counted whether or not any 

compensation is received for the week. 

However, the FMLA applies only to 

employees who are employed within 

any State of the United States, the 

District of Columbia or any Territory or 

possession of the United States. 

Employees who are employed outside 

these areas are not counted for purposes 

of determining employer coverage or 

employee eligibility. 

(c) Employees on paid or unpaid 

leave, including FMLA leave, leaves of 

absence, disciplinary suspension, etc., 

are counted as long as the employer has 

a reasonable expectation that the 

employee will later return to active 

employment. If there is no employer/ 

employee relationship (as when an 

employee is laid off, whether 

temporarily or permanently) such 

individual is not counted. Part-time 

employees, like full-time employees, are 

considered to be employed each 

working day of the calendar week, as 

long as they are maintained on the 

payroll. 

(d) An employee who does not begin 

to work for an employer until after the 

first working day of a calendar week, or 

who terminates employment before the 

last working day of a calendar week, is 

not considered employed on each 

working day of that calendar week. 

(e) A private employer is covered if it 

maintained 50 or more employees on 

the payroll during 20 or more calendar 

workweeks (not necessarily consecutive 

workweeks) in either the current or the 

preceding calendar year. 

(f) Once a private employer meets the 

50 employees/20 workweeks threshold, 

the employer remains covered until it 

reaches a future point where it no longer 

has employed 50 employees for 20 

(nonconsecutive) workweeks in the 

current and preceding calendar year. 

For example, if an employer who met 

the 50 employees/20 workweeks test in 

the calendar year as of September 1, 

2007, subsequently dropped below 50 

employees before the end of 2007 and 

continued to employ fewer than 50 

employees in all workweeks throughout 

calendar year 2008, the employer would 

continue to be covered throughout 

calendar year 2008 because it met the 

coverage criteria for 20 workweeks of 

the preceding (i.e., 2007) calendar year. 

§ 825.106 Joint employer coverage. 

(a) 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. Joint employers may be 

separate and distinct entities with 

separate owners, managers and 

facilities. Where the employee performs 

work which simultaneously benefits 

two or more employers, or works for 

two or more employers at different 

times during the workweek, a joint 

employment relationship generally will 

be considered to exist in situations such 

as: 

(1) Where there is an arrangement 

between employers to share an 

employee’s services or to interchange 

employees; 

(2) Where one employer acts directly 

or indirectly in the interest of the other 

employer in relation to the employee; 

or, 

(3) Where the employers are not 

completely disassociated with respect to 

the employee’s employment and may be 

deemed to share control of the 

employee, directly or indirectly, 

because one employer controls, is 

controlled by, or is under common 

control with the other employer. 

(b)(1) 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 second 

employer. 

(2) A type of company that is often 

called a ‘‘Professional Employment 

Organization’’ (PEO) or ‘‘HR 

Outsourcing Vendor’’ contracts with 

client employers merely to perform 

administrative functions—including 

payroll, benefits, regulatory paperwork, 

and updating employment policies. A 

PEO does not enter into a joint 

employment relationship with the 

employees of its client companies 

provided it merely performs these 

administrative functions. On the other 

hand, if in a particular fact situation, a 

PEO has the right to hire, fire, assign, or 

direct and control the client’s 

employees, or benefits from the work 

that the employees perform, such a PEO 

would be a joint employer with the 

client 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. 

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(d) Employees jointly employed by 

two employers must be counted by both 

employers, whether or not maintained 

on one of the employer’s payroll, in 

determining employer coverage and 

employee eligibility. For example, an 

employer who jointly employs 15 

workers from a leasing or temporary 

help agency and 40 permanent workers 

is covered by FMLA. (A special rule 

applies to employees jointly employed 

who physically work at a facility of the 

secondary employer for a period of at 

least one year. See § 825.111(a)(3).) An 

employee on leave who is working for 

a secondary employer is considered 

employed by the secondary employer, 

and must be counted for coverage and 

eligibility purposes, as long as the 

employer has a reasonable expectation 

that that employee will return to 

employment with that employer. 

(e) 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, 

whether or not the secondary employer 

is covered by FMLA (see § 825.220(a)). 

The prohibited acts include prohibitions 

against interfering with an employee’s 

attempt to exercise rights under the Act, 

or discharging or discriminating against 

an employee for opposing a practice 

which is unlawful under FMLA. A 

covered secondary employer will be 

responsible for compliance with all the 

provisions of the FMLA with respect to 

its regular, permanent workforce. 

§ 825.107 Successor in interest coverage. 

(a) For purposes of FMLA, in 

determining whether an employer is 

covered because it is a ‘‘successor in 

interest’’ to a covered employer, the 

factors used under Title VII of the Civil 

Rights Act and the Vietnam Era 

Veterans’ Adjustment Act will be 

considered. However, unlike Title VII, 

whether the successor has notice of the 

employee’s claim is not a consideration. 

Notice may be relevant, however, in 

determining successor liability for 

violations of the predecessor. The 

factors to be considered include: 

(1) Substantial continuity of the same 

business operations; 

(2) Use of the same plant; 

(3) Continuity of the workforce; 

(4) Similarity of jobs and working 

conditions; 

(5) Similarity of supervisory 

personnel; 

(6) Similarity in machinery, 

equipment, and production methods; 

(7) Similarity of products or services; 

and 

(8) The ability of the predecessor to 

provide relief. 

(b) A determination of whether or not 

a ‘‘successor in interest’’ exists is not 

determined by the application of any 

single criterion, but rather the entire 

circumstances are to be viewed in their 

totality. 

(c) When an employer is a ‘‘successor 

in interest,’’ employees’ entitlements are 

the same as if the employment by the 

predecessor and successor were 

continuous employment by a single 

employer. For example, the successor, 

whether or not it meets FMLA coverage 

criteria, must grant leave for eligible 

employees who had provided 

appropriate notice to the predecessor, or 

continue leave begun while employed 

by the predecessor, including 

maintenance of group health benefits 

during the leave and job restoration at 

the conclusion of the leave. A successor 

which meets FMLA’s coverage criteria 

must count periods of employment and 

hours worked for the predecessor for 

purposes of determining employee 

eligibility for FMLA leave. 

§ 825.108 Public agency coverage. 

(a) An ‘‘employer’’ under FMLA 

includes any ‘‘public agency,’’ as 

defined in section 3(x) of the Fair Labor 

Standards Act, 29 U.S.C. 203(x). Section 

3(x) of the FLSA defines ‘‘public 

agency’’ as the government of the 

United States; the government of a State 

or political subdivision of a State; or an 

agency of the United States, a State, or 

a political subdivision of a State, or any 

interstate governmental agency. ‘‘State’’

is further defined in Section 3(c) of the 

FLSA to include any State of the United 

States, the District of Columbia, or any 

Territory or possession of the United 

States. 

(b) The determination of whether an 

entity is a ‘‘public’’ agency, as 

distinguished from a private employer, 

is determined by whether the agency 

has taxing authority, or whether the 

chief administrative officer or board, 

etc., is elected by the voters-at-large or 

their appointment is subject to approval 

by an elected official. 

(c)(1) A State or a political 

subdivision of a State constitutes a 

single public agency and, therefore, a 

single employer for purposes of 

determining employee eligibility. For 

example, a State is a single employer; a 

county is a single employer; a city or 

town is a single employer. Where there 

is any question about whether a public 

entity is a public agency, as 

distinguished from a part of another 

public agency, the U.S. Bureau of the 

Census’ ‘‘Census of Governments’’ will 

be determinative, except for new 

entities formed since the most recent 

publication of the ‘‘Census.’’ For new 

entities, the criteria used by the Bureau 

of the Census will be used to determine 

whether an entity is a public agency or 

a part of another agency, including 

existence as an organized entity, 

governmental character, and substantial 

autonomy of the entity. 

(2) The Census Bureau takes a census 

of governments at 5-year intervals. 

Volume I, Government Organization, 

contains the official counts of the 

number of State and local governments. 

It includes tabulations of governments 

by State, type of government, size, and 

county location. Also produced is a 

universe list of governmental units, 

classified according to type of 

government. Copies of Volume I, 

Government Organization, and 

subsequent volumes are available from 

the Superintendent of Documents, U.S. 

Government Printing Office, 

Washington, DC 20402, U.S. Department 

of Commerce District Offices, or can be 

found in Regional and selective 

depository libraries. For a list of all 

depository libraries, write to the 

Government Printing Office, 710 N. 

Capitol St., NW., Washington, DC 

20402. 

(d) All public agencies are covered by 

the FMLA regardless of the number of 

employees; they are not subject to the 

coverage threshold of 50 employees 

carried on the payroll each day for 20 

or more weeks in a year. However, 

employees of public agencies must meet 

all of the requirements of eligibility, 

including the requirement that the 

employer (e.g., State) employ 50 

employees at the worksite or within 75 

miles. 

§ 825.109 Federal agency coverage. 

(a) Most employees of the government 

of the United States, if they are covered 

by the FMLA, are covered under Title II 

of the FMLA (incorporated in Title V, 

Chapter 63, Subchapter 5 of the United 

States Code) which is administered by 

the U.S. Office of Personnel 

Management (OPM). OPM has separate 

regulations at 5 CFR Part 630, Subpart 

L. Employees of the Government 

Printing Office are covered by Title II. 

While employees of the Government 

Accountability Office and the Library of 

Congress are covered by Title I of the 

FMLA, the Comptroller General of the 

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United States and the Librarian of 

Congress, respectively, have 

responsibility for the administration of 

the FMLA with respect to these 

employees. Other legislative branch 

employees, such as employees of the 

Senate and House of Representatives, 

are covered by the Congressional 

Accountability Act of 1995, 2 U.S.C. 

1301. 

(b) The Federal Executive Branch 

employees within the jurisdiction of 

these regulations include: 

(1) Employees of the Postal Service; 

(2) Employees of the Postal Regulatory 

Commission; 

(3) A part-time employee who does 

not have an established regular tour of 

duty during the administrative 

workweek; and, 

(4) An employee serving under an 

intermittent appointment or temporary 

appointment with a time limitation of 

one year or less. 

(c) Employees of other Federal 

executive agencies are also covered by 

these regulations if they are not covered 

by Title II of FMLA. 

(d) Employees of the judicial branch 

of the United States are covered by these 

regulations only if they are employed in 

a unit which has employees in the 

competitive service. For example, 

employees of the U.S. Tax Court are 

covered by these regulations. 

(e) For employees covered by these 

regulations, the U.S. Government 

constitutes a single employer for 

purposes of determining employee 

eligibility. These employees must meet 

all of the requirements for eligibility, 

including the requirement that the 

Federal Government employ 50 

employees at the worksite or within 75 

miles. 

§ 825.110 Eligible employee. 

(a) An ‘‘eligible employee’’ is an 

employee of a covered employer who: 

(1) Has been employed by the 

employer for at least 12 months, and 

(2) Has been employed for at least 

1,250 hours of service during the 12- 

month period immediately preceding 

the commencement of the leave, and 

(3) Is employed at a worksite where 

50 or more employees are employed by 

the employer within 75 miles of that 

worksite. (See § 825.105(b) regarding 

employees who work outside the U.S.) 

(b) The 12 months an employee must 

have been employed by the employer 

need not be consecutive months, 

provided 

(1) Subject to the exceptions provided 

in paragraph (b)(2) of this section, 

employment periods prior to a break in 

service of five years or more need not 

be counted in determining whether the 

employee has been employed by the 

employer for at least 12 months. 

(2) Employment periods preceding a 

break in service of more than five years 

must be counted in determining 

whether the employee has been 

employed by the employer for at least 

12 months where: 

(i) The employee’s break in service is 

occasioned by the fulfillment of his or 

her National Guard or Reserve military 

service obligation. The time served 

performing the military service must be 

also counted in determining whether 

the employee has been employed for at 

least 12 months by the employer. 

However, this section does not provide 

any greater entitlement to the employee 

than would be available under the 

Uniformed Services Employment and 

Reemployment Rights Act (USERRA); or 

(ii) A written agreement, including a 

collective bargaining agreement, exists 

concerning the employer’s intention to 

rehire the employee after the break in 

service (e.g., for purposes of the 

employee furthering his or her 

education or for childrearing purposes). 

(3) If an employee is maintained on 

the payroll for any part of a week, 

including any periods of paid or unpaid 

leave (sick, vacation) during which 

other benefits or compensation are 

provided by the employer (e.g., workers’

compensation, group health plan 

benefits, etc.), the week counts as a 

week of employment. For purposes of 

determining whether intermittent/ 

occasional/casual employment qualifies 

as ‘‘at least 12 months,’’ 52 weeks is 

deemed to be equal to 12 months. 

(4) Nothing in this section prevents 

employers from considering 

employment prior to a continuous break 

in service of more than five years when 

determining whether an employee has 

met the 12–month employment 

requirement. However, if an employer 

chooses to recognize such prior 

employment, the employer must do so 

uniformly, with respect to all employees 

with similar breaks in service. 

(c)(1) Except as provided in paragraph 

(c)(2) of this section, whether an 

employee has worked the minimum 

1,250 hours of service is determined 

according to the principles established 

under the Fair Labor Standards Act 

(FLSA) for determining compensable 

hours of work. (See 29 CFR part 785.) 

The determining factor is the number of 

hours an employee has worked for the 

employer within the meaning of the 

FLSA. The determination is not limited 

by methods of recordkeeping, or by 

compensation agreements that do not 

accurately reflect all of the hours an 

employee has worked for or been in 

service to the employer. Any accurate 

accounting of actual hours worked 

under FLSA’s principles may be used. 

(2) An employee returning from 

fulfilling his or her National Guard or 

Reserve military obligation shall be 

credited with the hours-of-service that 

would have been performed but for the 

period of military service in 

determining whether the employee 

worked the 1,250 hours of service. 

Accordingly, a person reemployed 

following military service has the hours 

that would have been worked for the 

employer added to any hours actually 

worked during the previous 12-month 

period to meet the 1,250 hour 

requirement. In order to determine the 

hours that would have been worked 

during the period of military service, the 

employee’s pre-service work schedule 

can generally be used for calculations. 

(3) In the event an employer does not 

maintain an accurate record of hours 

worked by an employee, including for 

employees who are exempt from FLSA’s 

requirement that a record be kept of 

their hours worked (e.g., bona fide 

executive, administrative, and 

professional employees as defined in 

FLSA Regulations, 29 CFR part 541), the 

employer has the burden of showing 

that the employee has not worked the 

requisite hours. An employer must be 

able to clearly demonstrate, for example, 

that full-time teachers (see § 825.800 for 

definition) of an elementary or 

secondary school system, or institution 

of higher education, or other 

educational establishment or institution 

(who often work outside the classroom 

or at their homes) did not work 1,250 

hours during the previous 12 months in 

order to claim that the teachers are not 

eligible for FMLA leave. 

(d) The determination of whether an 

employee has worked for the employer 

for at least 1,250 hours in the past 12 

months and has been employed by the 

employer for a total of at least 12 

months must be made as of the date the 

FMLA leave is to start. An employee 

may be on ‘‘non-FMLA leave’’ at the 

time he/she meets the eligibility 

requirements, and in that event, any 

portion of the leave taken for an FMLAqualifying reason after the employee 

meets the eligibility requirement would 

be ‘‘FMLA leave.’’ (See § 825.300(b) for 

rules governing the content of the 

eligibility notice given to employees.) 

(e) Whether 50 employees are 

employed within 75 miles to ascertain 

an employee’s eligibility for FMLA 

benefits is determined when the 

employee gives notice of the need for 

leave. Whether the leave is to be taken 

at one time or on an intermittent or 

reduced leave schedule basis, once an 

employee is determined eligible in 

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response to that notice of the need for 

leave, the employee’s eligibility is not 

affected by any subsequent change in 

the number of employees employed at 

or within 75 miles of the employee’s 

worksite, for that specific notice of the 

need for leave. Similarly, an employer 

may not terminate employee leave that 

has already started if the employeecount drops below 50. For example, if 

an employer employs 60 employees in 

August, but expects that the number of 

employees will drop to 40 in December, 

the employer must grant FMLA benefits 

to an otherwise eligible employee who 

gives notice of the need for leave in 

August for a period of leave to begin in 

December. 

§ 825.111 Determining whether 50 

employees are employed within 75 miles. 

(a) Generally, a worksite can refer to 

either a single location or a group of 

contiguous locations. Structures which 

form a campus or industrial park, or 

separate facilities in proximity with one 

another, may be considered a single site 

of employment. On the other hand, 

there may be several single sites of 

employment within a single building, 

such as an office building, if separate 

employers conduct activities within the 

building. For example, an office 

building with 50 different businesses as 

tenants will contain 50 sites of 

employment. The offices of each 

employer will be considered separate 

sites of employment for purposes of 

FMLA. An employee’s worksite under 

FMLA will ordinarily be the site the 

employee reports to or, if none, from 

which the employee’s work is assigned. 

(1) Separate buildings or areas which 

are not directly connected or in 

immediate proximity are a single 

worksite if they are in reasonable 

geographic proximity, are used for the 

same purpose, and share the same staff 

and equipment. For example, if an 

employer manages a number of 

warehouses in a metropolitan area but 

regularly shifts or rotates the same 

employees from one building to another, 

the multiple warehouses would be a 

single worksite. 

(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.’’ The 

workers who have New Jersey as their 

worksite would not be counted in 

determining eligibility of employees 

whose home base is the Ohio worksite, 

but would be counted in determining 

eligibility of employees whose home 

base is New Jersey. For transportation 

employees, their worksite is the 

terminal to which they are assigned, 

report for work, depart, and return after 

completion of a work assignment. For 

example, an airline pilot may work for 

an airline with headquarters in New 

York, but the pilot regularly reports for 

duty and originates or begins flights 

from the company’s facilities located in 

an airport in Chicago and returns to 

Chicago at the completion of one or 

more flights to go off duty. The pilot’s 

worksite is the facility in Chicago. An 

employee’s personal residence is not a 

worksite in the case of employees such 

as salespersons who travel a sales 

territory and who generally leave to 

work and return from work to their 

personal residence, or employees who 

work at home, as under the concept of 

flexiplace or telecommuting. Rather, 

their worksite is the office to which they 

report and from which assignments are 

made. 

(3) For purposes of determining that 

employee’s eligibility, when an 

employee is jointly employed by two or 

more employers (see § 825.106), the 

employee’s worksite is the primary 

employer’s office from which the 

employee is assigned or reports, unless 

the employee has physically worked for 

at least one year at a facility of a 

secondary employer, in which case the 

employee’s worksite is that location. 

The employee is also counted by the 

secondary employer to determine 

eligibility for the secondary employer’s 

full-time or permanent employees. 

(b) The 75-mile distance is measured 

by surface miles, using surface 

transportation over public streets, roads, 

highways and waterways, by the 

shortest route from the facility where 

the eligible employee needing leave is 

employed. Absent available surface 

transportation between worksites, the 

distance is measured by using the most 

frequently utilized mode of 

transportation (e.g., airline miles). 

(c) The determination of how many 

employees are employed within 75 

miles of the worksite of an employee is 

based on the number of employees 

maintained on the payroll. Employees of 

educational institutions who are 

employed permanently or who are 

under contract are ‘‘maintained on the 

payroll’’ during any portion of the year 

when school is not in session. See 

§ 825.105(c). 

§ 825.112 Qualifying reasons for leave, 

general rule. 

(a) Circumstances qualifying for leave. 

Employers covered by FMLA are 

required to grant leave to eligible 

employees: 

(1) For birth of a son or daughter, and 

to care for the newborn child (see 

§ 825.120); 

(2) For placement with the employee 

of a son or daughter for adoption or 

foster care (see § 825.121); 

(3) To care for the employee’s spouse, 

son, daughter, or parent with a serious 

health condition (see §§ 825.113 and 

825.122); and 

(4) Because of a serious health 

condition that makes the employee 

unable to perform the functions of the 

employee’s job (see §§ 825.113 and 

825.123). 

(b) Equal application. The right to 

take leave under FMLA applies equally 

to male and female employees. A father, 

as well as a mother, can take family 

leave for the birth, placement for 

adoption or foster care of a child. 

(c) Active employee. In situations 

where the employer/employee 

relationship has been interrupted, such 

as an employee who has been on layoff, 

the employee must be recalled or 

otherwise be re-employed before being 

eligible for FMLA leave. Under such 

circumstances, an eligible employee is 

immediately entitled to further FMLA 

leave for a qualifying reason. 

§ 825.113 Serious health condition. 

(a) For purposes of FMLA, ‘‘serious 

health condition’’ entitling an employee 

to FMLA leave means an illness, injury, 

impairment or physical or mental 

condition that involves inpatient care as 

defined in § 825.114 or continuing 

treatment by a health care provider as 

defined in § 825.115. 

(b) The term ‘‘incapacity’’ means 

inability to work, attend school or 

perform other regular daily activities 

due to the serious health condition, 

treatment therefor, or recovery 

therefrom. 

(c) The term ‘‘treatment’’ includes 

(but is not limited to) examinations to 

determine if a serious health condition 

exists and evaluations of the condition. 

Treatment does not include routine 

physical examinations, eye 

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examinations, or dental examinations. A 

regimen of continuing treatment 

includes, for example, a course of 

prescription medication (e.g., an 

antibiotic) or therapy requiring special 

equipment to resolve or alleviate the 

health condition (e.g., oxygen). A 

regimen of continuing treatment that 

includes the taking of over-the-counter 

medications such as aspirin, 

antihistamines, or salves; or bed-rest, 

drinking fluids, exercise, and other 

similar activities that can be initiated 

without a visit to a health care provider, 

is not, by itself, sufficient to constitute 

a regimen of continuing treatment for 

purposes of FMLA leave. 

(d) Conditions for which cosmetic 

treatments are administered (such as 

most treatments for acne or plastic 

surgery) are not ‘‘serious health 

conditions’’ unless inpatient hospital 

care is required or unless complications 

develop. 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. 

Restorative dental or plastic surgery 

after an injury or removal of cancerous 

growths are serious health conditions 

provided all the other conditions of this 

regulation are met. Mental illness 

resulting from stress, or allergies may be 

serious health conditions, but only if all 

the conditions of this section are met. 

§ 825.114 Inpatient care. 

Inpatient care means an overnight 

stay in a hospital, hospice, or residential 

medical care facility, including any 

period of incapacity as defined in 

§ 825.113(b), or any subsequent 

treatment in connection with such 

inpatient care. 

§ 825.115 Continuing treatment. 

A serious health condition involving 

continuing treatment by a health care 

provider includes any one or more of 

the following: 

(a) Incapacity and treatment. A period 

of incapacity of more than three 

consecutive calendar days, and any 

subsequent treatment or period of 

incapacity relating to the same 

condition, that also involves: 

(1) Treatment two or more times, 

within a 30-day period unless 

extenuating circumstances exist, by a 

health care provider, by a nurse under 

direct supervision of a health care 

provider, or by a provider of health care 

services (e.g., physical therapist) under 

orders of, or on referral by, a health care 

provider; or 

(2) 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. 

(b) Pregnancy or prenatal care. Any 

period of incapacity due to pregnancy, 

or for prenatal care. See also § 825.120. 

(c) Chronic conditions. Any period of 

incapacity or treatment for such 

incapacity due to a chronic serious 

health condition. A chronic serious 

health condition is one which: 

(1) Requires periodic visits (defined as 

at least twice a year) for treatment by a 

health care provider, or by a nurse 

under direct supervision of a health care 

provider; 

(2) Continues over an extended period 

of time (including recurring episodes of 

a single underlying condition); and 

(3) May cause episodic rather than a 

continuing period of incapacity (e.g., 

asthma, diabetes, epilepsy, etc.). 

(d) Permanent or long-term 

conditions. A period of incapacity 

which is permanent or long-term due to 

a condition for which treatment may not 

be effective. The employee or family 

member must be under the continuing 

supervision of, but need not be 

receiving active treatment by, a health 

care provider. Examples include 

Alzheimer’s, a severe stroke, or the 

terminal stages of a disease. 

(e) Conditions requiring multiple 

treatments. Any period of absence to 

receive multiple treatments (including 

any period of recovery therefrom) by a 

health care provider or by a provider of 

health care services under orders of, or 

on referral by, a health care provider, 

for: 

(1) Restorative surgery after an 

accident or other injury; or 

(2) A condition that would likely 

result in a period of incapacity of more 

than three consecutive calendar days in 

the absence of medical intervention or 

treatment, such as cancer 

(chemotherapy, radiation, etc.), severe 

arthritis (physical therapy), kidney 

disease (dialysis). 

(f) Absences attributable to incapacity 

under paragraph (b) or (c) of this section 

qualify for FMLA leave even though the 

employee or the covered family member 

does not receive treatment from a health 

care provider during the absence, and 

even if the absence does not last more 

than three consecutive calendar days. 

For example, an employee with asthma 

may be unable to report for work due to 

the onset of an asthma attack or because 

the employee’s health care provider has 

advised the employee to stay home 

when the pollen count exceeds a certain 

level. An employee who is pregnant 

may be unable to report to work because 

of severe morning sickness. 

§ 825.116 [Reserved] 

§ 825.117 [Reserved] 

§ 825.118 [Reserved] 

§ 825.119 Leave for treatment of 

substance abuse. 

(a) Substance abuse may be a serious 

health condition if the conditions of 

§§ 825.113 through 825.115 are met. 

However, FMLA leave may only be 

taken for treatment for substance abuse 

by a health care provider or by a 

provider of health care services on 

referral by a health care provider. On 

the other hand, absence because of the 

employee’s use of the substance, rather 

than for treatment, does not qualify for 

FMLA leave. 

(b) Treatment for substance abuse 

does not prevent an employer from 

taking employment action against an 

employee. The employer may not take 

action against the employee because the 

employee has exercised his or her right 

to take FMLA leave for treatment. 

However, if the employer has an 

established policy, applied in a nondiscriminatory manner that has been 

communicated to all employees, that 

provides under certain circumstances an 

employee may be terminated for 

substance abuse, pursuant to that policy 

the employee may be terminated 

whether or not the employee is 

presently taking FMLA leave. An 

employee may also take FMLA leave to 

care for a covered family member who 

is receiving treatment for substance 

abuse. The employer may not take 

action against an employee who is 

providing care for a covered family 

member receiving treatment for 

substance abuse. 

§ 825.120 Leave for pregnancy or birth. 

(a) General rules. Eligible employees 

are entitled to FMLA leave for 

pregnancy or birth of a child as follows: 

(1) Both the mother and father are 

entitled to FMLA leave for the birth of 

their child. 

(2) Both the mother and father are 

entitled to FMLA leave to be with the 

healthy newborn child (i.e., bonding 

time) during the 12-month period 

beginning on the date of birth. An 

employee’s entitlement to leave for a 

birth expires at the end of the 12-month 

period beginning on the date of the 

birth, unless State law allows, or the 

employer permits, leave to be taken for 

a longer period. Any such FMLA leave 

must be concluded within this one-year 

period. However, see § 825.701 

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regarding non-FMLA leave which may 

be available under applicable State 

laws. Under this section, both the 

mother and father are entitled to FMLA 

leave even if the newborn does not have 

a serious health condition. 

(3) A husband and wife who are 

eligible for FMLA leave and are 

employed by the same covered 

employer may be limited to a combined 

total of 12 weeks of leave during any 12- 

month period if the leave is taken for 

birth of the employee’s son or daughter 

or to care for the child after birth, for 

placement of a son or daughter with the 

employee for adoption or foster care, or 

to care for the child after placement, or 

to care for the employee’s parent with 

a serious health condition. This 

limitation on the total weeks of leave 

applies to leave taken for the reasons 

specified as long as a husband and wife 

are employed by the ‘‘same employer.’’

It would apply, for example, even 

though the spouses are employed at two 

different worksites of an employer 

located more than 75 miles from each 

other, or by two different operating 

divisions of the same company. On the 

other hand, if one spouse is ineligible 

for FMLA leave, the other spouse would 

be entitled to a full 12 weeks of FMLA 

leave. Where the husband and wife both 

use a portion of the total 12-week FMLA 

leave entitlement for either the birth of 

a child, for placement for adoption or 

foster care, or to care for a parent, the 

husband and wife would each be 

entitled to the difference between the 

amount he or she has taken individually 

and 12 weeks for FMLA leave for other 

purposes. For example, if each spouse 

took 6 weeks of leave to care for a 

healthy, newborn child, each could use 

an additional 6 weeks due to his or her 

own serious health condition or to care 

for a child with a serious health 

condition. Note, too, that many State 

pregnancy disability laws specify a 

period of disability either before or after 

the birth of a child; such periods would 

also be considered FMLA leave for a 

serious health condition of the mother, 

and would not be subject to the 

combined limit. 

(4) The mother is entitled to FMLA 

leave for incapacity due to pregnancy, 

for prenatal care, or for her own serious 

health condition following the birth of 

the child. Circumstances may require 

that FMLA leave begin before the actual 

date of birth of a child. An expectant 

mother may take FMLA leave before the 

birth of the child for prenatal care or if 

her condition makes her unable to work. 

The mother is entitled to leave for 

incapacity due to pregnancy even 

though she does not receive treatment 

from a health care provider during the 

absence, and even if the absence does 

not last for more than three consecutive 

calendar days. For example, a pregnant 

employee may be unable to report to 

work because of severe morning 

sickness. 

(5) The father is entitled to FMLA 

leave if needed to care for his pregnant 

spouse who is incapacitated or for 

prenatal care, or if needed to care for the 

spouse following the birth of a child if 

the spouse has a serious health 

condition. See § 825.124. 

(6) Both the mother and father are 

entitled to FMLA leave if needed to care 

for a child with a serious health 

condition if the requirements of 

§§ 825.113 through 825.115 and .122(c) 

are met. Thus, a husband and wife may 

each take their 12 weeks of FMLA leave 

if needed to care for their newborn child 

with a serious health condition, even if 

both are employed by the same 

employer, provided they have not 

exhausted their entitlements during the 

applicable 12-month FMLA leave 

period. 

(b) Intermittent and reduced schedule 

leave. An eligible employee may use 

intermittent or reduced schedule leave 

after the birth to be with a healthy 

newborn child only if the employer 

agrees. For example, an employer and 

employee may agree to a part-time work 

schedule after the birth. If the employer 

agrees to permit intermittent or reduced 

schedule leave for the birth of a child, 

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. Transfer to an alternative 

position may require compliance with 

any applicable collective bargaining 

agreement, Federal law (such as the 

Americans with Disabilities Act), and 

State law. Transfer to an alternative 

position may include altering an 

existing job to better accommodate the 

employee’s need for intermittent or 

reduced leave. The employer’s 

agreement is not required for 

intermittent leave required by the 

serious health condition of the mother 

or newborn child. See §§ 825.202-.205 

for general rules governing the use of 

intermittent and reduced schedule 

leave. See § 825.121 for rules governing 

leave for adoption or foster care. See 

§ 825.601 for special rules applicable to 

instructional employees of schools. 

§ 825.121 Leave for adoption or foster 

care. 

(a) General rules. Eligible employees 

are entitled to FMLA leave for 

placement with the employee of a son 

or daughter for adoption or foster care 

as follows: 

(1) Employees may take FMLA leave 

before the actual placement or adoption 

of a child if an absence from work is 

required for the placement for adoption 

or foster care to proceed. For example, 

the employee may be required to attend 

counseling sessions, appear in court, 

consult with his or her attorney or the 

doctor(s) representing the birth parent, 

submit to a physical examination, or 

travel to another country to complete an 

adoption. The source of an adopted 

child (e.g., whether from a licensed 

placement agency or otherwise) is not a 

factor in determining eligibility for leave 

for this purpose. 

(2) An employee’s entitlement to 

leave for adoption or foster care expires 

at the end of the 12-month period 

beginning on the date of the placement, 

unless State law allows, or the employer 

permits, leave to be taken for a longer 

period. Any such FMLA leave must be 

concluded within this one-year period. 

However, see § 825.701 regarding nonFMLA leave which may be available 

under applicable State laws. Under this 

section, the employee is entitled to 

FMLA leave even if the adopted or 

foster child does not have a serious 

health condition. 

(3) A husband and wife who are 

eligible for FMLA leave and are 

employed by the same covered 

employer may be limited to a combined 

total of 12 weeks of leave during any 12- 

month period if the leave is taken for 

the placement of the employee’s son or 

daughter or to care for the child after 

placement, for the birth of the 

employee’s son or daughter or to care 

for the child after birth, or to care for the 

employee’s parent with a serious health 

condition. This limitation on the total 

weeks of leave applies to leave taken for 

the reasons specified as long as a 

husband and wife are employed by the 

‘‘same employer.’’ It would apply, for 

example, even though the spouses are 

employed at two different worksites of 

an employer located more than 75 miles 

from each other, or by two different 

operating divisions of the same 

company. On the other hand, if one 

spouse is ineligible for FMLA leave, the 

other spouse would be entitled to a full 

12 weeks of FMLA leave. Where the 

husband and wife both use a portion of 

the total 12-week FMLA leave 

entitlement for either the birth of a 

child, for placement for adoption or 

foster care, or to care for a parent, the 

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husband and wife would each be 

entitled to the difference between the 

amount he or she has taken individually 

and 12 weeks for FMLA leave for other 

purposes. For example, if each spouse 

took 6 weeks of leave to care for a 

healthy, newly placed child, each could 

use an additional 6 weeks due to his or 

her own serious health condition or to 

care for a child with a serious health 

condition. 

(4) An eligible employee is entitled to 

FMLA leave in order to care for an 

adopted or foster child with a serious 

health condition if the requirements of 

§§ 825.113 through 825.115 and .122(c) 

are met. Thus, a husband and wife may 

each take 12 weeks of FMLA leave if 

needed to care for an adopted or foster 

child with a serious health condition, 

even if both are employed by the same 

employer, provided they have not 

exhausted their entitlements during the 

applicable 12-month FMLA leave 

period. 

(b) Use of intermittent and reduced 

schedule leave. An eligible employee 

may use intermittent or reduced 

schedule leave after the placement of a 

healthy child for adoption or foster care 

only if the employer agrees. Thus, for 

example, the employer and employee 

may agree to a part-time work schedule 

after the placement for bonding 

purposes. If the employer agrees to 

permit intermittent or reduced schedule 

leave for the placement for adoption or 

foster care, 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. Transfer to 

an alternative position may require 

compliance with any applicable 

collective bargaining agreement, Federal 

law (such as the Americans with 

Disabilities Act), and State law. Transfer 

to an alternative position may include 

altering an existing job to better 

accommodate the employee’s need for 

intermittent or reduced leave. The 

employer’s agreement is not required for 

intermittent leave required by the 

serious health condition of the adopted 

or foster child. See §§ 825.202 through 

825.205 for general rules governing the 

use of intermittent and reduced 

schedule leave. See § 825.120 for 

general rules governing leave for 

pregnancy and birth of a child. See 

§ 825.601 for special rules applicable to 

instructional employees of schools. 

§ 825.122 Definitions of spouse, parent, 

son or daughter, adoption and foster care. 

(a) Spouse. Spouse means a husband 

or wife as defined or recognized under 

State law for purposes of marriage in the 

State where the employee resides, 

including common law marriage in 

States where it is recognized. 

(b) Parent. Parent means a biological, 

adoptive, step or foster father or mother, 

or any other individual who stood in 

loco parentis to the employee when the 

employee was a son or daughter as 

defined in paragraph (c) of this section. 

This term does not include parents ‘‘in 

law.’’

(c) Son or daughter. Son or daughter 

means a biological, adopted, or foster 

child, a stepchild, a legal ward, or a 

child of a person standing in loco 

parentis, who is either under age 18, or 

age 18 or older and ‘‘incapable of selfcare because of a mental or physical 

disability’’ at the time that FMLA leave 

is to commence. 

(1) ‘‘Incapable of self-care’’ means that 

the individual requires active assistance 

or supervision to provide daily self-care 

in three or more of the ‘‘activities of 

daily living’’ (ADLs) or ‘‘instrumental 

activities of daily living’’ (IADLs). 

Activities of daily living include 

adaptive activities such as caring 

appropriately for one’s grooming and 

hygiene, bathing, dressing and eating. 

Instrumental activities of daily living 

include cooking, cleaning, shopping, 

taking public transportation, paying 

bills, maintaining a residence, using 

telephones and directories, using a post 

office, etc. 

(2) ‘‘Physical or mental disability’’

means a physical or mental impairment 

that substantially limits one or more of 

the major life activities of an individual. 

Regulations at 29 CFR 1630.2(h), (i), and 

(j), issued by the Equal Employment 

Opportunity Commission under the 

Americans with Disabilities Act (ADA), 

42 U.S.C. 12101 et seq., define these 

terms. 

(3) Persons who are ‘‘in loco parentis’’

include those with day-to-day 

responsibilities to care for and 

financially support a child, or, in the 

case of an employee, who had such 

responsibility for the employee when 

the employee was a child. A biological 

or legal relationship is not necessary. 

(d) Adoption. ‘‘Adoption’’ means 

legally and permanently assuming the 

responsibility of raising a child as one’s 

own. The source of an adopted child 

(e.g., whether from a licensed placement 

agency or otherwise) is not a factor in 

determining eligibility for FMLA leave. 

See § 825.121 for rules governing leave 

for adoption. 

(e) Foster care. Foster care is 24-hour 

care for children in substitution for, and 

away from, their parents or guardian. 

Such placement is made by or with the 

agreement of the State as a result of a 

voluntary agreement between the parent 

or guardian that the child be removed 

from the home, or pursuant to a judicial 

determination of the necessity for foster 

care, and involves agreement between 

the State and foster family that the foster 

family will take care of the child. 

Although foster care may be with 

relatives of the child, State action is 

involved in the removal of the child 

from parental custody. See § 825.121 for 

rules governing leave for foster care. 

(f) Documenting relationships. For 

purposes of confirmation of family 

relationship, the employer may require 

the employee giving notice of the need 

for leave to provide reasonable 

documentation or statement of family 

relationship. This documentation may 

take the form of a child’s birth 

certificate, a court document, a sworn 

notarized statement, a submitted and 

signed tax return, etc. The employer is 

entitled to examine documentation such 

as a birth certificate, etc., but the 

employee is entitled to the return of the 

official document submitted for this 

purpose. 

§ 825.123 Unable to perform the functions 

of the position. 

(a) Definition. An employee is 

‘‘unable to perform the functions of the 

position’’ where the 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 Americans 

with Disabilities Act (ADA), 42 U.S.C. 

12101 et seq., and the regulations at 29 

CFR 1630.2(n). An employee who must 

be absent from work to receive medical 

treatment for a serious health condition 

is considered to be unable to perform 

the essential functions of the position 

during the absence for treatment. 

(b) Statement of functions. An 

employer has the option, in requiring 

certification from a health care provider, 

to provide a statement of the essential 

functions of the employee’s position for 

the health care provider to review. For 

purposes of FMLA, the essential 

functions of the employee’s position are 

to be determined with reference to the 

position the employee held at the time 

notice is given or leave commenced, 

whichever is earlier. A sufficient 

medical certification must specify what 

functions of the employee’s position the 

employee is unable to perform. See 

§ 825.306. 

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§ 825.124 Needed to care for a family 

member. 

(a) The medical certification provision 

that an employee is ‘‘needed to care for’’

a family member encompasses both 

physical and psychological care. It 

includes situations where, for example, 

because of a serious health condition, 

the family member is unable to care for 

his or her own basic medical, hygienic, 

or nutritional needs or safety, or is 

unable to transport himself or herself to 

the doctor, etc. The term also includes 

providing psychological comfort and 

reassurance which would be beneficial 

to a child, spouse or parent with a 

serious health condition who is 

receiving inpatient or home care. 

(b) The term also includes situations 

where the employee may be needed to 

fill in for others who are caring for the 

family member, or to make 

arrangements for changes in care, such 

as transfer to a nursing home. The 

employee need not be the only 

individual or family member available 

to care for the qualified family member. 

(c) An employee’s intermittent leave 

or a reduced leave schedule necessary to 

care for a family member includes not 

only a situation where the family 

member’s condition itself is 

intermittent, but also where the 

employee is only needed 

intermittently—such as where other 

care is normally available, or care 

responsibilities are shared with another 

member of the family or a third party. 

See §§ 825.202 through 825.205 for rules 

governing the use of intermittent or 

reduced schedule leave. 

§ 825.125 Definition of health care 

provider. 

(a) The Act defines ‘‘health care 

provider’’ as: 

(1) A doctor of medicine or 

osteopathy who is authorized to practice 

medicine or surgery (as appropriate) by 

the State in which the doctor practices; 

or 

(2) Any other person determined by 

the Secretary to be capable of providing 

health care services. 

(b) Others ‘‘capable of providing 

health care services’’ include only: 

(1) Podiatrists, dentists, clinical 

psychologists, optometrists, and 

chiropractors (limited to treatment 

consisting of manual manipulation of 

the spine to correct a subluxation as 

demonstrated by X-ray to exist) 

authorized to practice in the State and 

performing within the scope of their 

practice as defined under State law; 

(2) Nurse practitioners, nursemidwives, clinical social workers and 

physician assistants who are authorized 

to practice under State law and who are 

performing within the scope of their 

practice as defined under State law; 

(3) Christian Science Practitioners 

listed with the First Church of Christ, 

Scientist in Boston, Massachusetts. 

Where an employee or family member is 

receiving treatment from a Christian 

Science practitioner, an employee may 

not object to any requirement from an 

employer that the employee or family 

member submit to examination (though 

not treatment) to obtain a second or 

third certification from a health care 

provider other than a Christian Science 

practitioner except as otherwise 

provided under applicable State or local 

law or collective bargaining agreement. 

(4) Any health care provider from 

whom an employer or the employer’s 

group health plan’s benefits manager 

will accept certification of the existence 

of a serious health condition to 

substantiate a claim for benefits; and 

(5) A health care provider listed above 

who practices in a country other than 

the United States, who is authorized to 

practice in accordance with the law of 

that country, and who is performing 

within the scope of his or her practice 

as defined under such law. 

(c) The phrase ‘‘authorized to practice 

in the State’’ as used in this section 

means that the provider must be 

authorized to diagnose and treat 

physical or mental health conditions. 

Subpart B—Employee Leave 

Entitlements Under the Family and 

Medical Leave Act 

§ 825.200 Amount of leave. 

(a) An eligible employee’s FMLA 

leave entitlement is limited to a total of 

12 workweeks of leave during any 12- 

month period for any one, or more, of 

the following reasons: 

(1) The birth of the employee’s son or 

daughter, and to care for the newborn 

child; 

(2) The placement with the employee 

of a son or daughter for adoption or 

foster care, and to care for the newly 

placed child; 

(3) To care for the employee’s spouse, 

son, daughter, or parent with a serious 

health condition; and 

(4) Because of a serious health 

condition that makes the employee 

unable to perform one or more of the 

essential functions of his or her job. 

(b) An employer is permitted to 

choose any one of the following 

methods for determining the ‘‘12-month 

period’’ in which the 12 weeks of leave 

entitlement occurs: 

(1) The calendar year; 

(2) Any fixed 12-month ‘‘leave year,’’

such as a fiscal year, a year required by 

State law, or a year starting on an 

employee’s ‘‘anniversary’’ date; 

(3) The 12-month period measured 

forward from the date any employee’s 

first FMLA leave begins; or, 

(4) A ‘‘rolling’’ 12-month period 

measured backward from the date an 

employee uses any FMLA leave. 

(c) Under methods in paragraphs 

(b)(1) and (b)(2) of this section an 

employee would be entitled to up to 12 

weeks of FMLA leave at any time in the 

fixed 12-month period selected. An 

employee could, therefore, take 12 

weeks of leave at the end of the year and 

12 weeks at the beginning of the 

following year. Under the method in 

paragraph (b)(3) of this section, an 

employee would be entitled to 12 weeks 

of leave during the year beginning on 

the first date FMLA leave is taken; the 

next 12-month period would begin the 

first time FMLA leave is taken after 

completion of any previous 12-month 

period. Under the method in paragraph 

(b)(4) of this section, the ‘‘rolling’’ 12- 

month period, each time an employee 

takes FMLA leave the remaining leave 

entitlement would be any balance of the 

12 weeks which has not been used 

during the immediately preceding 12 

months. For example, if an employee 

has taken eight weeks of leave during 

the past 12 months, an additional four 

weeks of leave could be taken. If an 

employee used four weeks beginning 

February 1, 2007, four weeks beginning 

June 1, 2007, and four weeks beginning 

December 1, 2007, the employee would 

not be entitled to any additional leave 

until February 1, 2008. However, 

beginning on February 1, 2008, the 

employee would be entitled to four 

weeks of leave, on June 1 the employee 

would be entitled to an additional four 

weeks, etc. 

(d)(1) Employers will be allowed to 

choose any one of the alternatives in 

paragraph (b) of this section provided 

the alternative chosen is applied 

consistently and uniformly to all 

employees. An employer wishing to 

change to another alternative is required 

to give at least 60 days notice to all 

employees, and the transition must take 

place in such a way that the employees 

retain the full benefit of 12 weeks of 

leave under whichever method affords 

the greatest benefit to the employee. 

Under no circumstances may a new 

method be implemented in order to 

avoid the Act’s leave requirements. 

(2) An exception to this required 

uniformity would apply in the case of 

a multi-State employer who has eligible 

employees in a State which has a family 

and medical leave statute. The State 

may require a single method of 

determining the period during which 

use of the leave entitlement is 

measured. This method may conflict 

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with the method chosen by the 

employer to determine ‘‘any 12 months’’

for purposes of the Federal statute. The 

employer may comply with the State 

provision for all employees employed 

within that State, and uniformly use 

another method provided by this 

regulation for all other employees. 

(e) If an employer fails to select one 

of the options in paragraph (b) of this 

section for measuring the 12-month 

period, the option that provides the 

most beneficial outcome for the 

employee will be used. The employer 

may subsequently select an option only 

by providing the 60-day notice to all 

employees of the option the employer 

intends to implement. During the 

running of the 60-day period any other 

employee who needs FMLA leave may 

use the option providing the most 

beneficial outcome to that employee. At 

the conclusion of the 60-day period the 

employer may implement the selected 

option. 

(f) For purposes of determining the 

amount of leave used by an employee, 

the fact that a holiday may occur within 

the week taken as FMLA leave has no 

effect; the week is counted as a week of 

FMLA leave. However, if an employee 

is using FMLA leave in increments of 

less than one week, the holiday will not 

count against the employee’s FMLA 

entitlement unless the employee was 

otherwise scheduled and expected to 

work during the holiday. Similarly, if 

for some reason the employer’s business 

activity has temporarily ceased and 

employees generally are not expected to 

report for work for one or more weeks 

(e.g., a school closing two weeks for the 

Christmas/New Year holiday or the 

summer vacation or an employer closing 

the plant for retooling or repairs), the 

days the employer’s activities have 

ceased do not count against the 

employee’s FMLA leave entitlement. 

Methods for determining an employee’s 

12-week leave entitlement are also 

described in § 825.205. 

§ 825.201 Leave to care for a parent. 

(a) General rule. An eligible employee 

is entitled to FMLA leave if needed to 

care for the employee’s parent with a 

serious health condition. Care for 

parents-in-law is not covered by the 

FMLA. See § 825.122(b) for definition of 

parent. 

(b) ‘‘Same employer’’ limitation. A 

husband and wife who are eligible for 

FMLA leave and are employed by the 

same covered employer may be limited 

to a combined total of 12 weeks of leave 

during any 12-month period if the leave 

is taken to care for the employee’s 

parent with a serious health condition, 

for the birth of the employee’s son or 

daughter or to care for the child after the 

birth, or for placement of a son or 

daughter with the employee for 

adoption or foster care or to care for the 

child after placement. This limitation on 

the total weeks of leave applies to leave 

taken for the reasons specified as long 

as a husband and wife are employed by 

the ‘‘same employer.’’ It would apply, 

for example, even though the spouses 

are employed at two different worksites 

of an employer located more than 75 

miles from each other, or by two 

different operating divisions of the same 

company. On the other hand, if one 

spouse is ineligible for FMLA leave, the 

other spouse would be entitled to a full 

12 weeks of FMLA leave. Where the 

husband and wife both use a portion of 

the total 12-week FMLA leave 

entitlement for either the birth of a 

child, for placement for adoption or 

foster care, or to care for a parent, the 

husband and wife would each be 

entitled to the difference between the 

amount he or she has taken individually 

and 12 weeks for FMLA leave for other 

purposes. For example, if each spouse 

took 6 weeks of leave to care for a 

parent, each could use an additional 6 

weeks due to his or her own serious 

health condition or to care for a child 

with a serious health condition. 

§ 825.202 Intermittent leave or reduced 

leave schedule. 

(a) Definition. FMLA leave may be 

taken ‘‘intermittently or on a reduced 

leave schedule’’ under certain 

circumstances. Intermittent leave is 

FMLA leave taken in separate blocks of 

time due to a single qualifying reason. 

A reduced leave schedule is a leave 

schedule that reduces an employee’s 

usual number of working hours per 

workweek, or hours per workday. A 

reduced leave schedule is a change in 

the employee’s schedule for a period of 

time, normally from full-time to parttime. 

(b) Medical necessity. For intermittent 

leave or leave on a reduced leave 

schedule, there must be a medical need 

for leave (as distinguished from 

voluntary treatments and procedures) 

and it must be that such medical need 

can be best accommodated through an 

intermittent or reduced leave schedule. 

The treatment regimen and other 

information described in the 

certification of a serious health 

condition (see § 825.306) meets the 

requirement for certification of the 

medical necessity of intermittent leave 

or leave on a reduced leave schedule. 

Leave may be taken intermittently or on 

a reduced leave schedule when 

medically necessary for planned and/or 

unanticipated medical treatment of a 

related serious health condition by or 

under the supervision of a health care 

provider, or for recovery from treatment 

or recovery from a serious health 

condition. It may also be taken to 

provide care or psychological comfort to 

a covered family member with a serious 

health condition. 

(1) Intermittent leave may be taken for 

a serious health condition which 

requires treatment by a health care 

provider periodically, rather than for 

one continuous period of time, and may 

include leave of periods from an hour or 

more to several weeks. Examples of 

intermittent leave would include leave 

taken on an occasional basis for medical 

appointments, or leave taken several 

days at a time spread over a period of 

six months, such as for chemotherapy. 

A pregnant employee may take leave 

intermittently for prenatal examinations 

or for her own condition, such as for 

periods of severe morning sickness. An 

example of an employee taking leave on 

a reduced leave schedule is an 

employee who is recovering from a 

serious health condition and is not 

strong enough to work a full-time 

schedule. 

(2) Intermittent or reduced schedule 

leave may be taken for absences where 

the employee or family member is 

incapacitated or unable to perform the 

essential functions of the position 

because of a chronic serious health 

condition even if he or she does not 

receive treatment by a health care 

provider. See § 825.113. 

(c) Birth or placement. When leave is 

taken after the birth of a healthy child 

or placement of a healthy child for 

adoption or foster care, an employee 

may take leave intermittently or on a 

reduced leave schedule only if the 

employer agrees. Such a schedule 

reduction might occur, for example, 

where an employee, with the employer’s 

agreement, works part-time after the 

birth of a child, or takes leave in several 

segments. The employer’s agreement is 

not required, however, for leave during 

which the mother has a serious health 

condition in connection with the birth 

of her child or if the newborn child has 

a serious health condition. See 

§ 825.204 for rules governing transfer to 

an alternative position that better 

accommodates intermittent leave. See 

also § 825.120 (pregnancy) and 

§ 825.121 (adoption and foster care). 

§ 825.203 Scheduling of intermittent or 

reduced schedule leave. 

Eligible employees may take FMLA 

leave on an intermittent or reduced 

schedule basis when medically 

necessary due to the serious health 

condition of a qualified family member 

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or the employee. See § 825.202. If an 

employee needs leave intermittently or 

on a reduced leave schedule for planned 

medical treatment, then the employee 

must make a reasonable effort to 

schedule the leave so as not to disrupt 

unduly the employer’s operations. 

§ 825.204 Transfer of an employee to an 

alternative position during intermittent 

leave or reduced schedule leave. 

(a) Transfer or reassignment. 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, including during a period of 

recovery from a serious health 

condition, or if the employer agrees to 

permit intermittent or reduced schedule 

leave for the birth of a child or for 

placement of a child for adoption or 

foster care, the employer may require 

the employee to transfer temporarily, 

during the period that 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. See 

§ 825.601 for special rules applicable to 

instructional employees of schools. 

(b) Compliance. Transfer to an 

alternative position may require 

compliance with any applicable 

collective bargaining agreement, Federal 

law (such as the Americans with 

Disabilities Act), and State law. Transfer 

to an alternative position may include 

altering an existing job to better 

accommodate the employee’s need for 

intermittent or reduced schedule leave. 

(c) Equivalent pay and benefits. The 

alternative position must have 

equivalent pay and benefits. An 

alternative position for these purposes 

does not have to have equivalent duties. 

The employer may increase the pay and 

benefits of an existing alternative 

position, so as to make them equivalent 

to the pay and benefits of the 

employee’s regular job. The employer 

may also transfer the employee to a parttime job with the same hourly rate of 

pay and benefits, provided the 

employee is not required to take more 

leave than is medically necessary. For 

example, an employee desiring to take 

leave in increments of four hours per 

day could be transferred to a half-time 

job, or could remain in the employee’s 

same job on a part-time schedule, 

paying the same hourly rate as the 

employee’s previous job and enjoying 

the same benefits. The employer may 

not eliminate benefits which otherwise 

would not be provided to part-time 

employees; however, an employer may 

proportionately reduce benefits such as 

vacation leave where an employer’s 

normal practice is to base such benefits 

on the number of hours worked. 

(d) Employer limitations. An 

employer may not transfer the employee 

to an alternative position in order to 

discourage the employee from taking 

leave or otherwise work a hardship on 

the employee. For example, a white 

collar employee may not be assigned to 

perform laborer’s work; an employee 

working the day shift may not be 

reassigned to the graveyard shift; an 

employee working in the headquarters 

facility may not be reassigned to a 

branch a significant distance away from 

the employee’s normal job location. Any 

such attempt on the part of the 

employer to make such a transfer will be 

held to be contrary to the prohibited 

acts of the FMLA. 

(e) Reinstatement of employee. 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. 

§ 825.205 Increments of leave for 

intermittent or reduced schedule leave. 

(a) Minimum increment. When an 

employee takes leave on an intermittent 

or reduced leave schedule, 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. If an 

employee takes leave on an intermittent 

or reduced leave schedule, only the 

amount of leave actually taken may be 

counted toward the 12 weeks of leave to 

which an employee is entitled. The 

normal workweek is the basis of leave 

entitlement. Therefore, if an employee 

who normally works five days a week 

takes off one day, the employee would 

use 1/5 of a week of FMLA leave. 

Similarly, if a full-time employee who 

normally works 8-hour days works 

4-hour days under a reduced leave 

schedule, the employee would use 1/2 

week of FMLA leave. 

(b) Calculation of leave. (1) Where an 

employee normally works a part-time 

schedule or variable hours, the amount 

of leave to which an employee is 

entitled is determined on a pro rata or 

proportional basis by comparing the 

new schedule with the employee’s 

normal schedule. For example, if an 

employee who normally works 30 hours 

per week works only 20 hours a week 

under a reduced leave schedule, the 

employee’s ten hours of leave would 

constitute one-third of a week of FMLA 

leave for each week the employee works 

the reduced leave schedule. 

(2) If an employer has made a 

permanent or long-term change in the 

employee’s schedule (for reasons other 

than FMLA, and prior to the notice of 

need for FMLA leave), the hours worked 

under the new schedule are to be used 

for making this calculation. 

(3) If an employee’s schedule varies 

from week to week, a weekly average of 

the hours worked over the 12 weeks 

prior to the beginning of the leave 

period would be used for calculating the 

employee’s normal workweek. 

§ 825.206 Interaction with the FLSA. 

(a) Leave taken under FMLA may be 

unpaid. If an employee is otherwise 

exempt from minimum wage and 

overtime requirements of the Fair Labor 

Standards Act (FLSA) as a salaried 

executive, administrative, professional, 

or computer employee (under 

regulations issued by the Secretary), 29 

CFR part 541, providing unpaid FMLAqualifying leave to such an employee 

will not cause the employee to lose the 

FLSA exemption. See 29 CFR 

541.602(b)(7). This means that under 

regulations currently in effect, where an 

employee meets the specified duties 

test, is paid on a salary basis, and is paid 

a salary of at least the amount specified 

in the regulations, the employer may 

make deductions from the employee’s 

salary for any hours taken as 

intermittent or reduced FMLA leave 

within a workweek, without affecting 

the exempt status of the employee. The 

fact that an employer provides FMLA 

leave, whether paid or unpaid, and 

maintains records required by this part 

regarding FMLA leave, will not be 

relevant to the determination whether 

an employee is exempt within the 

meaning of 29 CFR part 541. 

(b) For an employee paid in 

accordance with the fluctuating 

workweek method of payment for 

overtime (see 29 CFR 778.114), the 

employer, during the period in which 

intermittent or reduced schedule FMLA 

leave is scheduled to be taken, may 

compensate an employee on an hourly 

basis and pay only for the hours the 

employee works, including time and 

one-half the employee’s regular rate for 

overtime hours. The change to payment 

on an hourly basis would include the 

entire period during which the 

employee is taking intermittent leave, 

including weeks in which no leave is 

taken. The hourly rate shall be 

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determined by dividing the employee’s 

weekly salary by the employee’s normal 

or average schedule of hours worked 

during weeks in which FMLA leave is 

not being taken. If an employer chooses 

to follow this exception from the 

fluctuating workweek method of 

payment, the employer must do so 

uniformly, with respect to all employees 

paid on a fluctuating workweek basis for 

whom FMLA leave is taken on an 

intermittent or reduced leave schedule 

basis. If an employer does not elect to 

convert the employee’s compensation to 

hourly pay, no deduction may be taken 

for FMLA leave absences. Once the need 

for intermittent or reduced scheduled 

leave is over, the employee may be 

restored to payment on a fluctuating 

work week basis. 

(c) This special exception to the 

‘‘salary basis’’ requirements of the FLSA 

exemption or fluctuating workweek 

payment requirements applies only to 

employees of covered employers who 

are eligible for FMLA leave, and to leave 

which qualifies as (one of the four types 

of) FMLA leave. Hourly or other 

deductions which are not in accordance 

with 29 CFR part 541 or 29 CFR 778.114 

may not be taken, for example, from the 

salary of an employee who works for an 

employer with fewer than 50 

employees, or where the employee has 

not worked long enough to be eligible 

for FMLA leave without potentially 

affecting the employee’s eligibility for 

exemption. Nor may deductions which 

are not permitted by 29 CFR part 541 or 

29 CFR 778.114 be taken from such an 

employee’s salary for any leave which 

does not qualify as FMLA leave, for 

example, deductions from an 

employee’s pay for leave required under 

State law or under an employer’s policy 

or practice for a reason which does not 

qualify as FMLA leave, e.g., leave to 

care for a grandparent or for a medical 

condition which does not qualify as a 

serious health condition; or for leave 

which is more generous than provided 

by FMLA, such as leave in excess of 12 

weeks in a year. Employers may comply 

with State law or the employer’s own 

policy/practice under these 

circumstances and maintain the 

employee’s eligibility for exemption or 

for the fluctuating workweek method of 

pay by not taking hourly deductions 

from the employee’s pay, in accordance 

with FLSA requirements, or may take 

such deductions, treating the employee 

as an ‘‘hourly’’ employee and pay 

overtime premium pay for hours worked 

over 40 in a workweek. 

§ 825.207 Substitution of paid leave. 

(a) Generally, FMLA leave is unpaid 

leave. However, under the 

circumstances described in this section, 

FMLA permits an eligible employee to 

choose to substitute paid leave for 

FMLA leave. If an employee does not 

choose to substitute accrued paid leave, 

the employer may require the employee 

to substitute accrued paid leave for 

unpaid FMLA leave. The term 

‘‘substitute’’ means that the paid leave 

provided by the employer, and accrued 

pursuant to established policies of the 

employer, will run concurrently with 

the unpaid FMLA leave. Accordingly, 

the employee receives pay pursuant to 

the employer’s applicable paid leave 

policy during the period of otherwise 

unpaid FMLA leave. An employee’s 

ability to use accrued paid leave is 

determined by the terms and conditions 

of the employer’s normal leave policy. 

Employers may not discriminate against 

employees on FMLA leave in the 

administration of their leave policies. 

When an employee chooses, or an 

employer requires, substitution of 

accrued paid leave, the employer must 

inform the employee that the employee 

must satisfy any procedural 

requirements and meet any additional 

qualifying standards of the paid leave 

policy only in connection with the 

receipt of such payment or benefit. If an 

employee does not comply with the 

additional requirements in an 

employer’s paid leave policy, the 

employee is not entitled to substitute 

accrued paid leave, but the employee 

remains entitled to all the protections of 

unpaid FMLA leave. 

(b) If neither the employee nor the 

employer elects to substitute paid leave 

for unpaid FMLA leave under the above 

conditions and circumstances, the 

employee will remain entitled to all the 

paid leave which is earned or accrued 

under the terms of the employer’s plan. 

(c) If an employee uses paid leave 

under circumstances which do not 

qualify as FMLA leave, the leave will 

not count against the 12 weeks of FMLA 

leave to which the employee is entitled. 

For example, paid sick leave used for a 

medical condition which is not a 

serious health condition does not count 

against the 12 weeks of FMLA leave 

entitlement. 

(d) Disability leave for the birth of a 

child would be considered FMLA leave 

for a serious health condition and 

counted in the 12 weeks of leave 

permitted under FMLA. 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. Employers and employees 

also may agree, where State law permits, 

to have paid leave supplement the 

temporary disability benefits, such as in 

the case where a plan only provides 

replacement income for two-thirds of an 

employee’s salary. 

(e) The Act provides that a serious 

health condition may result from injury 

to the employee ‘‘on or off’’ the job. If 

the employer designates the leave as 

FMLA leave in accordance with 

§ 825.301, the employee’s FMLA 12- 

week leave entitlement may run 

concurrently with a workers’

compensation absence when the injury 

is one that meets the criteria for a 

serious health condition. As the 

workers’ compensation absence is not 

unpaid leave, the provision for 

substitution of the employee’s accrued 

paid leave is not applicable. However, if 

the health care provider treating the 

employee for the workers’ compensation 

injury certifies the employee is able to 

return to a ‘‘light duty job’’ but is unable 

to return to the same or equivalent job, 

the employee may decline the 

employer’s offer of a ‘‘light duty job.’’

As a result the employee may lose 

workers’ compensation payments, but is 

entitled to remain on unpaid FMLA 

leave until the 12-week entitlement is 

exhausted. As of the date workers’

compensation benefits cease, the 

substitution provision becomes 

applicable and either the employee may 

elect or the employer may require the 

use of accrued paid leave. See also 

§§ 825.210(f), 825.216(d), 825.220(d), 

825.307(a) and 825.702(d) (1) and (2) 

regarding the relationship between 

workers’ compensation absences and 

FMLA leave. 

(f) Section 7(o) of the Fair Labor 

Standards Act (FLSA) permits public 

employers under prescribed 

circumstances to substitute 

compensatory time off accrued at one 

and one-half hours for each overtime 

hour worked in lieu of paying cash to 

an employee when the employee works 

overtime hours as prescribed by the Act. 

There are limits to the amounts of hours 

of compensatory time an employee may 

accumulate depending upon whether 

the employee works in fire protection or 

law enforcement (480 hours) or 

elsewhere for a public agency (240 

hours). In addition, under the FLSA, an 

employer always has the right to cash 

out an employee’s compensatory time or 

to require the employee to use the time. 

Therefore, if an employee requests and 

is permitted to use accrued 

compensatory time to receive pay for 

time taken off for an FMLA reason, or 

if the employer requires such use 

pursuant to the FLSA, the time taken off 

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for an FMLA reason may be counted 

against the employee’s FMLA leave 

entitlement. 

§ 825.208 [Reserved] 

§ 825.209 Maintenance of employee 

benefits. 

(a) During any FMLA leave, an 

employer must maintain the employee’s 

coverage under any group health plan 

(as defined in the Internal Revenue 

Code of 1986 at 26 U.S.C. 5000(b)(1)) on 

the same conditions as coverage would 

have been provided if the employee had 

been continuously employed during the 

entire leave period. All employers 

covered by FMLA, including public 

agencies, are subject to the Act’s 

requirements to maintain health 

coverage. The definition of ‘‘group 

health plan’’ is set forth in § 825.800. 

For purposes of FMLA, the term ‘‘group 

health plan’’ shall not include an 

insurance program providing health 

coverage under which employees 

purchase individual policies from 

insurers provided that: 

(1) No contributions are made by the 

employer; 

(2) Participation in the program is 

completely voluntary for employees; 

(3) The sole functions of the employer 

with respect to the program are, without 

endorsing the program, to permit the 

insurer to publicize the program to 

employees, to collect premiums through 

payroll deductions and to remit them to 

the insurer; 

(4) The employer receives no 

consideration in the form of cash or 

otherwise in connection with the 

program, other than reasonable 

compensation, excluding any profit, for 

administrative services actually 

rendered in connection with payroll 

deduction; and, 

(5) The premium charged with respect 

to such coverage does not increase in 

the event the employment relationship 

terminates. 

(b) The same group health plan 

benefits provided to an employee prior 

to taking FMLA leave must be 

maintained during the FMLA leave. For 

example, if family member coverage is 

provided to an employee, family 

member coverage must be maintained 

during the FMLA leave. Similarly, 

benefit coverage during FMLA leave for 

medical care, surgical care, hospital 

care, dental care, eye care, mental health 

counseling, substance abuse treatment, 

etc., must be maintained during leave if 

provided in an employer’s group health 

plan, including a supplement to a group 

health plan, whether or not provided 

through a flexible spending account or 

other component of a cafeteria plan. 

(c) If an employer provides a new 

health plan or benefits or changes health 

benefits or plans while an employee is 

on FMLA leave, the employee is entitled 

to the new or changed plan/benefits to 

the same extent as if the employee were 

not on leave. For example, if an 

employer changes a group health plan 

so that dental care becomes covered 

under the plan, an employee on FMLA 

leave must be given the same 

opportunity as other employees to 

receive (or obtain) the dental care 

coverage. Any other plan changes (e.g., 

in coverage, premiums, deductibles, 

etc.) which apply to all employees of the 

workforce would also apply to an 

employee on FMLA leave. 

(d) Notice of any opportunity to 

change plans or benefits must also be 

given to an employee on FMLA leave. 

If the group health plan permits an 

employee to change from single to 

family coverage upon the birth of a 

child or otherwise add new family 

members, such a change in benefits 

must be made available while an 

employee is on FMLA leave. If the 

employee requests the changed coverage 

it must be provided by the employer. 

(e) An employee may choose not to 

retain group health plan coverage 

during FMLA leave. However, when an 

employee returns from leave, the 

employee is entitled to be reinstated on 

the same terms as prior to taking the 

leave, including family or dependent 

coverages, without any qualifying 

period, physical examination, exclusion 

of pre-existing conditions, etc. See 

§ 825.212(c). 

(f) Except as required by the 

Consolidated Omnibus Budget 

Reconciliation Act of 1986 (COBRA) 

and for ‘‘key’’ employees (as discussed 

below), an employer’s obligation to 

maintain health benefits during leave 

(and to restore the employee to the same 

or equivalent employment) under FMLA 

ceases if and when the employment 

relationship would have terminated if 

the employee had not taken FMLA leave 

(e.g., if the employee’s position is 

eliminated as part of a 

nondiscriminatory reduction in force 

and the employee would not have been 

transferred to another position); an 

employee informs the employer of his or 

her intent not to return from leave 

(including before starting the leave if the 

employer is so informed before the leave 

starts); or the employee fails to return 

from leave or continues on leave after 

exhausting his or her FMLA leave 

entitlement in the 12-month period. 

(g) If a ‘‘key employee’’ (see § 825.218) 

does not return from leave when 

notified by the employer that substantial 

or grievous economic injury will result 

from his or her reinstatement, the 

employee’s entitlement to group health 

plan benefits continues unless and until 

the employee advises the employer that 

the employee does not desire restoration 

to employment at the end of the leave 

period, or FMLA leave entitlement is 

exhausted, or reinstatement is actually 

denied. 

(h) An employee’s entitlement to 

benefits other than group health benefits 

during a period of FMLA leave (e.g., 

holiday pay) is to be determined by the 

employer’s established policy for 

providing such benefits when the 

employee is on other forms of leave 

(paid or unpaid, as appropriate). 

§ 825.210 Employee payment of group 

health benefit premiums. 

(a) Group health plan benefits must be 

maintained on the same basis as 

coverage would have been provided if 

the employee had been continuously 

employed during the FMLA leave 

period. Therefore, any share of group 

health plan premiums which had been 

paid by the employee prior to FMLA 

leave must continue to be paid by the 

employee during the FMLA leave 

period. If premiums are raised or 

lowered, the employee would be 

required to pay the new premium rates. 

Maintenance of health insurance 

policies which are not a part of the 

employer’s group health plan, as 

described in § 825.209(a)(1), are the sole 

responsibility of the employee. The 

employee and the insurer should make 

necessary arrangements for payment of 

premiums during periods of unpaid 

FMLA leave. 

(b) If the FMLA leave is substituted 

paid leave, the employee’s share of 

premiums must be paid by the method 

normally used during any paid leave, 

presumably as a payroll deduction. 

(c) If FMLA leave is unpaid, the 

employer has a number of options for 

obtaining payment from the employee. 

The employer may require that payment 

be made to the employer or to the 

insurance carrier, but no additional 

charge may be added to the employee’s 

premium payment for administrative 

expenses. The employer may require 

employees to pay their share of 

premium payments in any of the 

following ways: 

(1) Payment would be due at the same 

time as it would be made if by payroll 

deduction; 

(2) Payment would be due on the 

same schedule as payments are made 

under COBRA; 

(3) Payment would be prepaid 

pursuant to a cafeteria plan at the 

employee’s option; 

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(4) The employer’s existing rules for 

payment by employees on ‘‘leave 

without pay’’ would be followed, 

provided that such rules do not require 

prepayment (i.e., prior to the 

commencement of the leave) of the 

premiums that will become due during 

a period of unpaid FMLA leave or 

payment of higher premiums than if the 

employee had continued to work 

instead of taking leave; or, 

(5) Another system voluntarily agreed 

to between the employer and the 

employee, which may include 

prepayment of premiums (e.g., through 

increased payroll deductions when the 

need for the FMLA leave is foreseeable). 

(d) The employer must provide the 

employee with advance written notice 

of the terms and conditions under 

which these payments must be made. 

(See § 825.300.) 

(e) An employer may not require more 

of an employee using unpaid FMLA 

leave than the employer requires of 

other employees on ‘‘leave without 

pay.’’

(f) An employee who is receiving 

payments as a result of a workers’

compensation injury must make 

arrangements with the employer for 

payment of group health plan benefits 

when simultaneously taking FMLA 

leave. See § 825.207(e). 

§ 825.211 Maintenance of benefits under 

multi-employer health plans. 

(a) A multi-employer health plan is a 

plan to which more than one employer 

is required to contribute, and which is 

maintained pursuant to one or more 

collective bargaining agreements 

between employee organization(s) and 

the employers. 

(b) An employer under a multiemployer plan must continue to make 

contributions on behalf of an employee 

using FMLA leave as though the 

employee had been continuously 

employed, unless the plan contains an 

explicit FMLA provision for 

maintaining coverage such as through 

pooled contributions by all employers 

party to the plan. 

(c) During the duration of an 

employee’s FMLA leave, coverage by 

the group health plan, and benefits 

provided pursuant to the plan, must be 

maintained at the level of coverage and 

benefits which were applicable to the 

employee at the time FMLA leave 

commenced. 

(d) An employee using FMLA leave 

cannot be required to use ‘‘banked’’

hours or pay a greater premium than the 

employee would have been required to 

pay if the employee had been 

continuously employed. 

(e) As provided in § 825.209(f) of this 

part, group health plan coverage must 

be maintained for an employee on 

FMLA leave until: 

(1) The employee’s FMLA leave 

entitlement is exhausted; 

(2) The employer can show that the 

employee would have been laid off and 

the employment relationship 

terminated; or, 

(3) The employee provides 

unequivocal notice of intent not to 

return to work. 

§ 825.212 Employee failure to pay health 

plan premium payments. 

(a)(1) In the absence of an established 

employer policy providing a longer 

grace period, an employer’s obligations 

to maintain health insurance coverage 

cease under FMLA if an employee’s 

premium payment is more than 30 days 

late. In order to drop the coverage for an 

employee whose premium payment is 

late, the employer must provide written 

notice to the employee that the payment 

has not been received. Such notice must 

be mailed to the employee at least 15 

days before coverage is to cease, 

advising that coverage will be dropped 

on a specified date at least 15 days after 

the date of the letter unless the payment 

has been received by that date. If the 

employer has established policies 

regarding other forms of unpaid leave 

that provide for the employer to cease 

coverage retroactively to the date the 

unpaid premium payment was due, the 

employer may drop the employee from 

coverage retroactively in accordance 

with that policy, provided the 15-day 

notice was given. In the absence of such 

a policy, coverage for the employee may 

be terminated at the end of the 30-day 

grace period, where the required 15-day 

notice has been provided. 

(2) An employer has no obligation 

regarding the maintenance of a health 

insurance policy which is not a ‘‘group 

health plan.’’ See § 825.209(a). 

(3) All other obligations of an 

employer under FMLA would continue; 

for example, the employer continues to 

have an obligation to reinstate an 

employee upon return from leave. 

(b) The employer may recover the 

employee’s share of any premium 

payments missed by the employee for 

any FMLA leave period during which 

the employer maintains health coverage 

by paying the employee’s share after the 

premium payment is missed. 

(c) If coverage lapses because an 

employee has not made required 

premium payments, upon the 

employee’s return from FMLA leave the 

employer must still restore the 

employee to coverage/benefits 

equivalent to those the employee would 

have had if leave had not been taken 

and the premium payment(s) had not 

been missed, including family or 

dependent coverage. See § 825.215(d)(1) 

through (5). In such case, an employee 

may not be required to meet any 

qualification requirements imposed by 

the plan, including any new preexisting 

condition waiting period, to wait for an 

open season, or to pass a medical 

examination to obtain reinstatement of 

coverage. If an employer terminates an 

employee’s insurance in accordance 

with this section and fails to restore the 

employee’s health insurance as required 

by this section upon the employee’s 

return, the employer may be liable for 

benefits lost by reason of the violation, 

for other actual monetary losses 

sustained as a direct result of the 

violation, and for appropriate equitable 

relief tailored to the harm suffered. 

§ 825.213 Employer recovery of benefit 

costs. 

(a) In addition to the circumstances 

discussed in § 825.212(b), an employer 

may recover its share of health plan 

premiums during a period of unpaid 

FMLA leave from an employee if the 

employee fails to return to work after 

the employee’s FMLA leave entitlement 

has been exhausted or expires, unless 

the reason the employee does not return 

is due to: 

(1) The continuation, recurrence, or 

onset of a serious health condition of 

the employee or the employee’s family 

member which would otherwise entitle 

the employee to leave under FMLA; or 

(2) Other circumstances beyond the 

employee’s control. Examples of ‘‘other 

circumstances beyond the employee’s 

control’’ are necessarily broad. They 

include such situations as where a 

parent chooses to stay home with a 

newborn child who has a serious health 

condition; an employee’s spouse is 

unexpectedly transferred to a job 

location more than 75 miles from the 

employee’s worksite; a relative or 

individual other than a covered family 

member has a serious health condition 

and the employee is needed to provide 

care; the employee is laid off while on 

leave; or, the employee is a ‘‘key 

employee’’ who decides not to return to 

work upon being notified of the 

employer’s intention to deny restoration 

because of substantial and grievous 

economic injury to the employer’s 

operations and is not reinstated by the 

employer. Other circumstances beyond 

the employee’s control would not 

include a situation where an employee 

desires to remain with a parent in a 

distant city even though the parent no 

longer requires the employee’s care, or 

a parent chooses not to return to work 

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to stay home with a well, newborn 

child. 

(3) When an employee fails to return 

to work because of the continuation, 

recurrence, or onset of a serious health 

condition, thereby precluding the 

employer from recovering its (share of) 

health benefit premium payments made 

on the employee’s behalf during a 

period of unpaid FMLA leave, the 

employer may require medical 

certification of the employee’s or the 

family member’s serious health 

condition. Such certification is not 

required unless requested by the 

employer. The cost of the certification 

shall be borne by the employee, and the 

employee is not entitled to be paid for 

the time or travel costs spent in 

acquiring the certification. The 

employee is required to provide medical 

certification in a timely manner which, 

for purposes of this section, is within 30 

days from the date of the employer’s 

request. For purposes of medical 

certification, the employee may use the 

optional DOL form developed for this 

purpose (see § 825.306(b) and Appendix 

B of this part). If the employer requests 

medical certification and the employee 

does not provide such certification in a 

timely manner (within 30 days), or the 

reason for not returning to work does 

not meet the test of other circumstances 

beyond the employee’s control, the 

employer may recover 100% of the 

health benefit premiums it paid during 

the period of unpaid FMLA leave. 

(b) Under some circumstances an 

employer may elect to maintain other 

benefits, e.g., life insurance, disability 

insurance, etc., by paying the 

employee’s (share of) premiums during 

periods of unpaid FMLA leave. For 

example, to ensure the employer can 

meet its responsibilities to provide 

equivalent benefits to the employee 

upon return from unpaid FMLA leave, 

it may be necessary that premiums be 

paid continuously to avoid a lapse of 

coverage. If the employer elects to 

maintain such benefits during the leave, 

at the conclusion of leave, the employer 

is entitled to recover only the costs 

incurred for paying the employee’s 

share of any premiums whether or not 

the employee returns to work. 

(c) An employee who returns to work 

for at least 30 calendar days is 

considered to have ‘‘returned’’ to work. 

An employee who transfers directly 

from taking FMLA leave to retirement, 

or who retires during the first 30 days 

after the employee returns to work, is 

deemed to have returned to work. 

(d) When an employee elects or an 

employer requires paid leave to be 

substituted for FMLA leave, the 

employer may not recover its (share of) 

health insurance or other non-health 

benefit premiums for any period of 

FMLA leave covered by paid leave. 

Because paid leave provided under a 

plan covering temporary disabilities 

(including workers’ compensation) is 

not unpaid, recovery of health insurance 

premiums does not apply to such paid 

leave. 

(e) The amount that self-insured 

employers may recover is limited to 

only the employer’s share of allowable 

‘‘premiums’’ as would be calculated 

under COBRA, excluding the 2 percent 

fee for administrative costs. 

(f) When an employee fails to return 

to work, any health and non-health 

benefit premiums which this section of 

the regulations permits an employer to 

recover are a debt owed by the nonreturning employee to the employer. 

The existence of this debt caused by the 

employee’s failure to return to work 

does not alter the employer’s 

responsibilities for health benefit 

coverage and, under a self-insurance 

plan, payment of claims incurred during 

the period of FMLA leave. To the extent 

recovery is allowed, the employer may 

recover the costs through deduction 

from any sums due to the employee 

(e.g., unpaid wages, vacation pay, profit 

sharing, etc.), provided such deductions 

do not otherwise violate applicable 

Federal or State wage payment or other 

laws. Alternatively, the employer may 

initiate legal action against the 

employee to recover such costs. 

§ 825.214 Employee right to reinstatement. 

General rule. On return from FMLA 

leave, an employee is entitled to be 

returned to the same position the 

employee held when leave commenced, 

or to an equivalent position with 

equivalent benefits, pay, and other 

terms and conditions of employment. 

An employee is entitled to such 

reinstatement even if the employee has 

been replaced or his or her position has 

been restructured to accommodate the 

employee’s absence. See also 

§ 825.106(e) for the obligations of joint 

employers. 

§ 825.215 Equivalent position. 

(a) Equivalent position. An equivalent 

position is one that is virtually identical 

to the employee’s former position in 

terms of pay, benefits and working 

conditions, including privileges, 

perquisites and status. It must involve 

the same or substantially similar duties 

and responsibilities, which must entail 

substantially equivalent skill, effort, 

responsibility, and authority. 

(b) Conditions to qualify. If an 

employee is no longer qualified for the 

position because of the employee’s 

inability to attend a necessary course, 

renew a license, fly a minimum number 

of hours, etc., as a result of the leave, the 

employee shall be given a reasonable 

opportunity to fulfill those conditions 

upon return to work. 

(c) Equivalent pay. (1) An employee is 

entitled to any unconditional pay 

increases which may have occurred 

during the FMLA leave period, such as 

cost of living increases. Pay increases 

conditioned upon seniority, length of 

service, or work performed would not 

have to be granted unless it is the 

employer’s policy or practice to do so 

with respect to other employees on 

‘‘leave without pay.’’ In such case, any 

pay increase would be granted based on 

the employee’s seniority, length of 

service, work performed, etc., excluding 

the period of unpaid FMLA leave. An 

employee is entitled to be restored to a 

position with the same or equivalent 

pay premiums, such as a shift 

differential. If an employee departed 

from a position averaging ten hours of 

overtime (and corresponding overtime 

pay) each week, an employee is 

ordinarily entitled to such a position on 

return from FMLA leave. 

(2) Equivalent pay includes any bonus 

or payment, whether it is discretionary 

or non-discretionary, made to 

employees consistent with the 

provisions of paragraph (c)(1) of this 

section. However, if a bonus or other 

payment is based on the achievement of 

a specified goal such as hours worked, 

products sold or perfect attendance, and 

the employee has not met the goal due 

to FMLA leave, then the payment may 

be denied, unless otherwise paid to 

employees on an equivalent non-FMLA 

leave status. For example, if an 

employee who used paid vacation leave 

for a non-FMLA purpose would receive 

the payment, then the employee who 

used vacation leave for an FMLAprotected purpose also must receive the 

payment. 

(d) Equivalent benefits. ‘‘Benefits’’

include all benefits provided or made 

available to employees by an employer, 

including group life insurance, health 

insurance, disability insurance, sick 

leave, annual leave, educational 

benefits, and pensions, regardless of 

whether such benefits are provided by 

a practice or written policy of an 

employer through an employee benefit 

plan as defined in Section 3(3) of the 

Employee Retirement Income Security 

Act of 1974, 29 U.S.C. 1002(3). 

(1) At the end of an employee’s FMLA 

leave, benefits must be resumed in the 

same manner and at the same levels as 

provided when the leave began, and 

subject to any changes in benefit levels 

that may have taken place during the 

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period of FMLA leave affecting the 

entire workforce, unless otherwise 

elected by the employee. Upon return 

from FMLA leave, an employee cannot 

be required to requalify for any benefits 

the employee enjoyed before FMLA 

leave began (including family or 

dependent coverages). For example, if 

an employee was covered by a life 

insurance policy before taking leave but 

is not covered or coverage lapses during 

the period of unpaid FMLA leave, the 

employee cannot be required to meet 

any qualifications, such as taking a 

physical examination, in order to 

requalify for life insurance upon return 

from leave. Accordingly, some 

employers may find it necessary to 

modify life insurance and other benefits 

programs in order to restore employees 

to equivalent benefits upon return from 

FMLA leave, make arrangements for 

continued payment of costs to maintain 

such benefits during unpaid FMLA 

leave, or pay these costs subject to 

recovery from the employee on return 

from leave. See § 825.213(b). 

(2) An employee may, but is not 

entitled to, accrue any additional 

benefits or seniority during unpaid 

FMLA leave. Benefits accrued at the 

time leave began, however, (e.g., paid 

vacation, sick or personal leave to the 

extent not substituted for FMLA leave) 

must be available to an employee upon 

return from leave. 

(3) If, while on unpaid FMLA leave, 

an employee desires to continue life 

insurance, disability insurance, or other 

types of benefits for which he or she 

typically pays, the employer is required 

to follow established policies or 

practices for continuing such benefits 

for other instances of leave without pay. 

If the employer has no established 

policy, the employee and the employer 

are encouraged to agree upon 

arrangements before FMLA leave begins. 

(4) With respect to pension and other 

retirement plans, any period of unpaid 

FMLA leave shall not be treated as or 

counted toward a break in service for 

purposes of vesting and eligibility to 

participate. Also, if the plan requires an 

employee to be employed on a specific 

date in order to be credited with a year 

of service for vesting, contributions or 

participation purposes, an employee on 

unpaid FMLA leave on that date shall 

be deemed to have been employed on 

that date. However, unpaid FMLA leave 

periods need not be treated as credited 

service for purposes of benefit accrual, 

vesting and eligibility to participate. 

(5) Employees on unpaid FMLA leave 

are to be treated as if they continued to 

work for purposes of changes to benefit 

plans. They are entitled to changes in 

benefits plans, except those which may 

be dependent upon seniority or accrual 

during the leave period, immediately 

upon return from leave or to the same 

extent they would have qualified if no 

leave had been taken. For example if the 

benefit plan is predicated on a preestablished number of hours worked 

each year and the employee does not 

have sufficient hours as a result of 

taking unpaid FMLA leave, the benefit 

is lost. (In this regard, § 825.209 

addresses health benefits.) 

(e) Other issues related to equivalent 

terms and conditions of employment. 

An equivalent position must have 

substantially similar duties, conditions, 

responsibilities, privileges and status as 

the employee’s original position. 

(1) The employee must be reinstated 

to the same or a geographically 

proximate worksite (i.e., one that does 

not involve a significant increase in 

commuting time or distance) from 

where the employee had previously 

been employed. If the employee’s 

original worksite has been closed, the 

employee is entitled to the same rights 

as if the employee had not been on leave 

when the worksite closed. For example, 

if an employer transfers all employees 

from a closed worksite to a new 

worksite in a different city, the 

employee on leave is also entitled to 

transfer under the same conditions as if 

he or she had continued to be 

employed. 

(2) The employee is ordinarily 

entitled to return to the same shift or the 

same or an equivalent work schedule. 

(3) The employee must have the same 

or an equivalent opportunity for 

bonuses, profit-sharing, and other 

similar discretionary and nondiscretionary payments. 

(4) FMLA does not prohibit an 

employer from accommodating an 

employee’s request to be restored to a 

different shift, schedule, or position 

which better suits the employee’s 

personal needs on return from leave, or 

to offer a promotion to a better position. 

However, an employee cannot be 

induced by the employer to accept a 

different position against the employee’s 

wishes. 

(f) De minimis exception. The 

requirement that an employee be 

restored to the same or equivalent job 

with the same or equivalent pay, 

benefits, and terms and conditions of 

employment does not extend to de 

minimis, intangible, or unmeasurable 

aspects of the job. 

§ 825.216 Limitations on an employee’s 

right to reinstatement. 

(a) An employee has no greater right 

to reinstatement or to other benefits and 

conditions of employment than if the 

employee had been continuously 

employed during the FMLA leave 

period. An employer must be able to 

show that an employee would not 

otherwise have been employed at the 

time reinstatement is requested in order 

to deny restoration to employment. For 

example: 

(1) If an employee is laid off during 

the course of taking FMLA leave and 

employment is terminated, the 

employer’s responsibility to continue 

FMLA leave, maintain group health 

plan benefits and restore the employee 

cease at the time the employee is laid 

off, provided the employer has no 

continuing obligations under a 

collective bargaining agreement or 

otherwise. An employer would have the 

burden of proving that an employee 

would have been laid off during the 

FMLA leave period and, therefore, 

would not be entitled to restoration. 

Restoration to a job slated for lay-off 

when the employee’s original position is 

not would not meet the requirements of 

an equivalent position. 

(2) If a shift has been eliminated, or 

overtime has been decreased, an 

employee would not be entitled to 

return to work that shift or the original 

overtime hours upon restoration. 

However, if a position on, for example, 

a night shift has been filled by another 

employee, the employee is entitled to 

return to the same shift on which 

employed before taking FMLA leave. 

(3) If an employee was hired for a 

specific term or only to perform work on 

a discrete project, the employer has no 

obligation to restore the employee if the 

employment term or project is over and 

the employer would not otherwise have 

continued to employ the employee. On 

the other hand, if an employee was 

hired to perform work on a contract, and 

after that contract period the contract 

was awarded to another contractor, the 

successor contractor may be required to 

restore the employee if it is a successor 

employer. See § 825.107. 

(b) In addition to the circumstances 

explained above, an employer may deny 

job restoration to salaried eligible 

employees (‘‘key employees,’’ as defined 

in § 825.217(c)), if such denial is 

necessary to prevent substantial and 

grievous economic injury to the 

operations of the employer; or may 

delay restoration to an employee who 

fails to provide a fitness for duty 

certificate to return to work under the 

conditions described in § 825.310. 

(c) If the employee is unable to 

perform an essential function of the 

position because of a physical or mental 

condition, including the continuation of 

a serious health condition or an injury 

or illness also covered by workers’

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compensation, the employee has no 

right to restoration to another position 

under the FMLA. However, the 

employer’s obligations may be governed 

by the Americans with Disabilities Act 

(ADA). See § 825.702, State leave laws, 

or workers’ compensation laws. 

(d) An employee who fraudulently 

obtains FMLA leave from an employer 

is not protected by FMLA’s job 

restoration or maintenance of health 

benefits provisions. 

(e) If the employer has a uniformlyapplied policy governing outside or 

supplemental employment, such a 

policy may continue to apply to an 

employee while on FMLA leave. An 

employer which does not have such a 

policy may not deny benefits to which 

an employee is entitled under FMLA on 

this basis unless the FMLA leave was 

fraudulently obtained as in paragraph 

(d) of this section. 

§ 825.217 Key employee, general rule. 

(a) A ‘‘key employee’’ is a salaried 

FMLA-eligible employee who is among 

the highest paid 10 percent of all the 

employees employed by the employer 

within 75 miles of the employee’s 

worksite. 

(b) The term ‘‘salaried’’ means ‘‘paid 

on a salary basis,’’ as defined in 29 CFR 

541.602. This is the Department of 

Labor regulation defining employees 

who may qualify as exempt from the 

minimum wage and overtime 

requirements of the FLSA as executive, 

administrative, professional, and 

computer employees. 

(c) A ‘‘key employee’’ must be 

‘‘among the highest paid 10 percent’’ of 

all the employees—both salaried and 

non-salaried, eligible and ineligible—

who are employed by the employer 

within 75 miles of the worksite. 

(1) In determining which employees 

are among the highest paid 10 percent, 

year-to-date earnings are divided by 

weeks worked by the employee 

(including weeks in which paid leave 

was taken). Earnings include wages, 

premium pay, incentive pay, and nondiscretionary and discretionary bonuses. 

Earnings do not include incentives 

whose value is determined at some 

future date, e.g., stock options, or 

benefits or perquisites. 

(2) The determination of whether a 

salaried employee is among the highest 

paid 10 percent shall be made at the 

time the employee gives notice of the 

need for leave. No more than 10 percent 

of the employer’s employees within 75 

miles of the worksite may be ‘‘key 

employees.’’

§ 825.218 Substantial and grievous 

economic injury. 

(a) In order to deny restoration to a 

key employee, an employer must 

determine that the restoration of the 

employee to employment will cause 

‘‘substantial and grievous economic 

injury’’ to the operations of the 

employer, not whether the absence of 

the employee will cause such 

substantial and grievous injury. 

(b) An employer may take into 

account its ability to replace on a 

temporary basis (or temporarily do 

without) the employee on FMLA leave. 

If permanent replacement is 

unavoidable, the cost of then reinstating 

the employee can be considered in 

evaluating whether substantial and 

grievous economic injury will occur 

from restoration; in other words, the 

effect on the operations of the company 

of reinstating the employee in an 

equivalent position. 

(c) A precise test cannot be set for the 

level of hardship or injury to the 

employer which must be sustained. If 

the reinstatement of a ‘‘key employee’’

threatens the economic viability of the 

firm, that would constitute ‘‘substantial 

and grievous economic injury.’’ A lesser 

injury which causes substantial, longterm economic injury would also be 

sufficient. Minor inconveniences and 

costs that the employer would 

experience in the normal course of 

doing business would certainly not 

constitute ‘‘substantial and grievous 

economic injury.’’

(d) FMLA’s ‘‘substantial and grievous 

economic injury’’ standard is different 

from and more stringent than the 

‘‘undue hardship’’ test under the ADA 

(see also § 825.702). 

§ 825.219 Rights of a key employee. 

(a) An employer who believes that 

reinstatement may be denied to a key 

employee, must give written notice to 

the employee at the time the employee 

gives notice of the need for FMLA leave 

(or when FMLA leave commences, if 

earlier) that he or she qualifies as a key 

employee. At the same time, the 

employer must also fully inform the 

employee of the potential consequences 

with respect to reinstatement and 

maintenance of health benefits if the 

employer should determine that 

substantial and grievous economic 

injury to the employer’s operations will 

result if the employee is reinstated from 

FMLA leave. If such notice cannot be 

given immediately because of the need 

to determine whether the employee is a 

key employee, it shall be given as soon 

as practicable after being notified of a 

need for leave (or the commencement of 

leave, if earlier). It is expected that in 

most circumstances there will be no 

desire that an employee be denied 

restoration after FMLA leave and, 

therefore, there would be no need to 

provide such notice. However, an 

employer who fails to provide such 

timely notice will lose its right to deny 

restoration even if substantial and 

grievous economic injury will result 

from reinstatement. 

(b) As soon as an employer makes a 

good faith determination, based on the 

facts available, that substantial and 

grievous economic injury to its 

operations will result if a key employee 

who has given notice of the need for 

FMLA leave or is using FMLA leave is 

reinstated, the employer shall notify the 

employee in writing of its 

determination, that it cannot deny 

FMLA leave, and that it intends to deny 

restoration to employment on 

completion of the FMLA leave. It is 

anticipated that an employer will 

ordinarily be able to give such notice 

prior to the employee starting leave. The 

employer must serve this notice either 

in person or by certified mail. This 

notice must explain the basis for the 

employer’s finding that substantial and 

grievous economic injury will result, 

and, if leave has commenced, must 

provide the employee a reasonable time 

in which to return to work, taking into 

account the circumstances, such as the 

length of the leave and the urgency of 

the need for the employee to return. 

(c) If an employee on leave does not 

return to work in response to the 

employer’s notification of intent to deny 

restoration, the employee continues to 

be entitled to maintenance of health 

benefits and the employer may not 

recover its cost of health benefit 

premiums. A key employee’s rights 

under FMLA continue unless and until 

the employee either gives notice that he 

or she no longer wishes to return to 

work, or the employer actually denies 

reinstatement at the conclusion of the 

leave period. 

(d) After notice to an employee has 

been given that substantial and grievous 

economic injury will result if the 

employee is reinstated to employment, 

an employee is still entitled to request 

reinstatement at the end of the leave 

period even if the employee did not 

return to work in response to the 

employer’s notice. The employer must 

then again determine whether there will 

be substantial and grievous economic 

injury from reinstatement, based on the 

facts at that time. If it is determined that 

substantial and grievous economic 

injury will result, the employer shall 

notify the employee in writing (in 

person or by certified mail) of the denial 

of restoration. 

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§ 825.220 Protection for employees who 

request leave or otherwise assert FMLA 

rights. 

(a) The FMLA prohibits interference 

with an employee’s rights under the 

law, and with legal proceedings or 

inquiries relating to an employee’s 

rights. More specifically, the law 

contains the following employee 

protections: 

(1) An employer is prohibited from 

interfering with, restraining, or denying 

the exercise of (or attempts to exercise) 

any rights provided by the Act. 

(2) An employer is prohibited from 

discharging or in any other way 

discriminating against any person 

(whether or not an employee) for 

opposing or complaining about any 

unlawful practice under the Act. 

(3) All persons (whether or not 

employers) are prohibited from 

discharging or in any other way 

discriminating against any person 

(whether or not an employee) because 

that person has—

(i) Filed any charge, or has instituted 

(or caused to be instituted) any 

proceeding under or related to this Act; 

(ii) Given, or is about to give, any 

information in connection with an 

inquiry or proceeding relating to a right 

under this Act; 

(iii) Testified, or is about to testify, in 

any inquiry or proceeding relating to a 

right under this Act. 

(b) Any violations of the Act or of 

these regulations constitute interfering 

with, restraining, or denying the 

exercise of rights provided by the Act. 

An employer may be liable for 

compensation and benefits lost by 

reason of the violation, for other actual 

monetary losses sustained as a direct 

result of the violation, and for 

appropriate equitable or other relief, 

including employment, reinstatement, 

promotion, or any other relief tailored to 

the harm suffered (see § 825.400(c)). 

‘‘Interfering with’’ the exercise of an 

employee’s rights would include, for 

example, not only refusing to authorize 

FMLA leave, but discouraging an 

employee from using such leave. It 

would also include manipulation by a 

covered employer to avoid 

responsibilities under FMLA, for 

example: 

(1) Transferring employees from one 

worksite to another for the purpose of 

reducing worksites, or to keep 

worksites, below the 50-employee 

threshold for employee eligibility under 

the Act; 

(2) Changing the essential functions of 

the job in order to preclude the taking 

of leave; 

(3) Reducing hours available to work 

in order to avoid employee eligibility. 

(c) The Act’s prohibition against 

‘‘interference’’ prohibits an employer 

from discriminating or retaliating 

against an employee or prospective 

employee for having exercised or 

attempted to exercise FMLA rights. For 

example, if an employee on leave 

without pay would otherwise be 

entitled to full benefits (other than 

health benefits), the same benefits 

would be required to be provided to an 

employee on unpaid FMLA leave. By 

the same token, employers cannot use 

the taking of FMLA leave as a negative 

factor in employment actions, such as 

hiring, promotions or disciplinary 

actions; nor can FMLA leave be counted 

under ‘‘no fault’’ attendance policies. 

See § 825.215. 

(d) Employees cannot waive, nor may 

employers induce employees to waive, 

their prospective rights under FMLA. 

For example, employees (or their 

collective bargaining representatives) 

cannot ‘‘trade off’’ the right to take 

FMLA leave against some other benefit 

offered by the employer. This does 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 (see 

§ 825.702(d)). Nor does it prevent the 

settlement of past FMLA claims by 

employees without the approval of the 

Department of Labor or a court. 

(e) Individuals, and not merely 

employees, are protected from 

retaliation for opposing (e.g., filing a 

complaint about) any practice which is 

unlawful under the Act. They are 

similarly protected if they oppose any 

practice which they reasonably believe 

to be a violation of the Act or 

regulations. 

Subpart C—Employee and Employer 

Rights and Obligations Under the Act 

§ 825.300 Employer notice requirements. 

(a) General notice. (1) Every employer 

covered by the FMLA is required to post 

and keep posted on its premises, in 

conspicuous places where employees 

are employed, a notice explaining the 

Act’s provisions and providing 

information concerning the procedures 

for filing complaints of violations of the 

Act with the Wage and Hour Division. 

The notice must be posted prominently 

where it can be readily seen by 

employees and applicants for 

employment. The poster and the text 

must be large enough to be easily read 

and contain fully legible text. Electronic 

posting is sufficient to meet this posting 

requirement as long as it otherwise 

meets the requirements of this 

subsection. An employer that willfully 

violates the posting requirement may be 

assessed a civil money penalty by the 

Wage and Hour Division not to exceed 

$110 for each separate offense. 

(2) Covered employers must post this 

general notice even if no employees are 

eligible for FMLA leave. 

(3) If an FMLA-covered employer has 

any eligible employees, it shall also 

provide this general notice to each 

employee by either including the notice 

in employee handbooks distributed to 

all employees or distributing a copy of 

the general notice to each employee at 

least annually (distribution may be by 

electronic mail). 

(4) To meet the general notice 

requirements of this section, employers 

may duplicate the text of the notice 

contained in Appendix C of this part. 

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 general notices in a 

language in which the employees are 

literate. Prototypes are available in 

several languages from the nearest office 

of the Wage and Hour Division or on the 

Internet at http:// 

www.wagehour.dol.gov. Employers 

furnishing FMLA notices to sensory 

impaired individuals must also comply 

with all applicable requirements under 

Federal or State law. 

(b) Eligibility notice. (1) When an 

employee requests FMLA leave, or 

when the employer acquires knowledge 

that an employee’s leave may be for an 

FMLA-qualifying condition, the 

employer must notify the employee 

within five business days of the 

employee’s eligibility to take FMLA 

leave and any additional requirements 

for qualifying for such leave. This 

eligibility notice shall provide 

information regarding the employee’s 

eligibility for FMLA leave, detail the 

specific responsibilities of the 

employee, and explain any 

consequences of a failure to meet these 

responsibilities. See § 825.110 for 

definition of an eligible employee. 

(2) Specifically, the eligibility notice 

must state whether the employee is 

eligible for FMLA leave and whether the 

employee still has FMLA leave available 

in the current applicable 12-month 

FMLA leave period. If the employee is 

not eligible for FMLA leave, the notice 

must state the reasons why the 

employee is not eligible, including as 

applicable that the employee has no 

remaining FMLA leave available in the 

12-month period, the number of months 

the employee has been employed by the 

employer, the number of hours of 

service during the 12-month period, and 

whether the employee is employed at a 

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worksite where 50 or more employees 

are employed by the employer within 75 

miles of that worksite. 

(3) If the employee is eligible for 

FMLA leave and has FMLA leave 

available, the eligibility notice must 

detail the specific expectations and 

obligations of the employee and explain 

any consequences of a failure to meet 

these obligations. Such specific notice 

must include, as appropriate: 

(i) That the leave may be designated 

and counted against the employee’s 

annual FMLA leave entitlement if 

qualifying (see §§ 825.300(c) and 

825.301); 

(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, whether the employer will 

require the substitution of paid leave, 

the conditions related to any 

substitution, and the employee’s 

entitlement to take unpaid FMLA leave 

if the employee does not comply; 

(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 and a list of 

the essential functions of the employee’s 

position if the employer will require 

that the fitness-for-duty certification 

address those functions (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 § 825.218); 

(vii) The employee’s rights to 

maintenance of benefits during the 

FMLA leave and restoration to the same 

or an equivalent job upon return from 

FMLA 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). 

(4) The eligibility 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. 

(5) The eligibility notice should be 

accompanied by any required medical 

certification form. 

(6) Except as provided in this section, 

the eligibility notice must be provided 

to the employee no less often than the 

first time in each six-month period that 

an employee gives notice of the need for 

FMLA leave (if FMLA leave is taken 

during the six-month period). The 

notice shall be given within a 

reasonable time after notice of the need 

for leave is given by the employee—

within five business days if feasible. If 

leave has already begun, the notice 

should be mailed to the employee’s 

address of record. 

(7) If the specific information 

provided by the notice changes with 

respect to a subsequent period of FMLA 

leave during the six-month period, the 

employer shall, within five business 

days of receipt of the employee’s notice 

of need for leave, provide written notice 

referencing the prior notice and setting 

forth any of the information in the 

eligibility notice which has changed. 

For example, if the initial leave period 

was paid leave and the subsequent leave 

period would be unpaid leave, the 

employer may need to give notice of the 

arrangements for making premium 

payments. 

(8)(i) Except as provided in paragraph 

(b)(8)(ii) of this section, if the employer 

is requiring medical certification or a 

‘‘fitness-for-duty’’ report, written notice 

of the requirement shall be given with 

respect to each employee notice of a 

need for leave. 

(ii) Subsequent written notification 

shall not be required if the initial 

eligibility notice in the six-month 

period and the employer handbook or 

other written documents (if any) 

describing the employer’s leave policies, 

clearly provided that certification or a 

‘‘fitness-for-duty’’ report would be 

required (e.g., by stating that 

certification would be required in all 

cases, by stating that certification would 

be required in all cases in which leave 

of more than a specified number of days 

is taken, or by stating that a ‘‘fitness-forduty’’ report would be required in all 

cases for back injuries for employees in 

a certain occupation). Where subsequent 

written notice is not required, at least 

oral notice shall be provided. See 

§ 825.305(a). 

(9) Employers are also expected to 

responsively answer questions from 

employees concerning their rights and 

responsibilities under the FMLA. 

(10) A prototype eligibility notice is 

contained in Appendix D of this part; 

the prototype may be obtained from 

local offices of the Wage and Hour 

Division or from the Internet at http:// 

www.wagehour.dol.gov. Employers may 

adapt the prototype notice as 

appropriate to meet these notice 

requirements. 

(c) Designation notice. (1) When the 

employer has enough information to 

determine whether the leave qualifies as 

FMLA leave (after receiving a medical 

certification, for example), the employer 

must notify the employee within five 

business days of making such 

determination whether the leave has or 

has not been designated as FMLA leave 

and the number of hours, days or weeks 

that will be counted against the 

employee’s FMLA leave entitlement. If 

it is not possible to provide the hours, 

days or weeks that will be counted 

against the employee’s FMLA leave 

entitlement (such as in the case of 

unforeseeable intermittent leave), then 

such information must be provided 

every 30 days to the employee if leave 

is taken during the prior 30-day period. 

If the employer requires paid leave to be 

substituted for unpaid leave, or that 

paid leave taken under an existing leave 

plan be counted as FMLA leave, this 

designation also must be made at the 

time of the FMLA designation. 

(2) This designation notice must be in 

writing, but may be in any form, 

including a notation on the employee’s 

pay stub. See § 825.301 for rules on 

leave designation. If the leave is not 

designated as FMLA leave because it 

does not meet the requirements of the 

Act, the notice to the employee that the 

leave is not designated as FMLA leave 

may be in the form of a simple written 

statement. 

(3) If the employer has sufficient 

information to designate the leave as 

FMLA leave immediately after receiving 

notice of the employee’s need for leave, 

an employer may provide an employee 

with the designation notice 

immediately, and also must provide the 

employee with the information required 

in the eligibility notice as set forth in 

paragraph (b)(3) of this section. 

(4) A prototype designation notice is 

contained in Appendix E of this part; 

the prototype designation notice may be 

obtained from local offices of the Wage 

and Hour Division or from the Internet 

at www.wagehour.dol.gov. 

(d) Consequences of failing to provide 

notice. Failure to follow the notice 

requirements set forth in this section 

may constitute an interference with, 

restraint or denial of the exercise of an 

employee’s FMLA rights. An employer 

may be liable for compensation and 

benefits lost by reason of the violation, 

for other actual monetary losses 

sustained as a direct result of the 

violation, and for appropriate equitable 

or other relief, including employment, 

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7980 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Proposed Rules 

reinstatement, promotion, or any other 

relief tailored to the harm suffered (see 

§ 825.400(c)). 

§ 825.301 Employer designation of FMLA 

leave. 

(a) Employer responsibilities. In all 

circumstances, 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 as provided in § 825.300. In 

the case of intermittent leave or leave on 

a reduced schedule, only one such 

notice is required unless the 

circumstances regarding the leave have 

changed. The employer’s designation 

decision must be based only on 

information received from the employee 

or the employee’s spokesperson (e.g., if 

the employee is incapacitated, the 

employee’s spouse, adult child, parent, 

doctor, etc., may provide notice to the 

employer of the need to take FMLA 

leave). In any circumstance where the 

employer does not have sufficient 

information about the reason for an 

employee’s use of leave, the employer 

should inquire further of the employee 

or the spokesperson to ascertain 

whether paid leave is potentially FMLAqualifying. Once the employer has 

acquired knowledge that the leave is 

being taken for an FMLA required 

reason, the employer must notify the 

employee within five business days, 

absent extenuating circumstances, that 

the leave is designated and will be 

counted as FMLA leave. 

(b) Employee responsibilities. As 

noted in §§ 825.302(c) and 825.303(b), 

an employee giving notice of the need 

for FMLA leave does not need to 

expressly assert rights under the Act or 

even mention the FMLA to meet his or 

her obligation to provide notice, though 

the employee would need to state a 

qualifying reason for the needed leave 

and otherwise satisfy the notice 

requirements set forth in § 825.302 or 

§ 825.303 depending on whether the 

need for leave is foreseeable or 

unforeseeable. An employee giving 

notice of the need for FMLA leave must 

explain the reasons for the needed leave 

so as to allow the employer to determine 

that the leave qualifies under the Act. If 

the employee fails to explain the 

reasons, leave may be denied. 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 

as FMLA leave. An employee using 

accrued paid leave, especially vacation 

or personal leave, may in some cases not 

spontaneously explain the reasons or 

their plans for using their accrued leave. 

An employee requesting or notifying the 

employer of an intent to use accrued 

paid leave, even if for a purpose covered 

by FMLA, would not need to assert such 

right either. However, if an employee 

requesting to use paid leave for an 

FMLA-qualifying purpose does not 

explain the reason for the leave—

consistent with the employer’s 

established policy or practice—and the 

employer denies the employee’s request, 

the employee will need to provide 

sufficient information to establish an 

FMLA-qualifying reason for the needed 

leave so that the employer is aware of 

the employee’s entitlement (i.e., that the 

leave may not be denied) and, then, may 

designate that the paid leave be 

appropriately counted against 

(substituted for) the employee’s 12-week 

entitlement. Similarly, an employee 

using accrued paid vacation leave who 

seeks an extension of unpaid leave for 

an FMLA-qualifying purpose will need 

to state the reason. If this is due to an 

event which occurred during the period 

of paid leave, the employer may count 

the leave used after the FMLAqualifying event against the employee’s 

12-week entitlement. 

(c) Disputes. If there is a dispute 

between an employer and an employee 

as to whether paid leave qualifies as 

FMLA leave, it should be resolved 

through discussions between the 

employee and the employer. Such 

discussions and the decision must be 

documented. 

(d) Retroactive designation. If an 

employer does not designate leave as 

required by § 825.300, the employer 

may retroactively designate leave as 

FMLA leave with appropriate notice to 

the employee as required by § 825.300 

provided that the employer’s failure to 

timely designate leave does not cause 

harm or injury to the employee. In all 

cases where leave would qualify for 

FMLA protections, an employer and an 

employee can mutually agree that leave 

be retroactively designated as FMLA 

leave. 

(e) Remedies. If an employer’s failure 

to timely designate leave in accordance 

with § 825.300 causes the employee to 

suffer harm, it may constitute an 

interference with, restraint of or denial 

of the exercise of an employee’s FMLA 

rights. An employer may be liable for 

compensation and benefits lost by 

reason of the violation, for other actual 

monetary losses sustained as a direct 

result of the violation, and for 

appropriate equitable or other relief, 

including employment, reinstatement, 

promotion, or any other relief tailored to 

the harm suffered (see § 825.400(c)). For 

example, if an employer that was put on 

notice that an employee needed FMLA 

leave failed to designate the leave 

properly, but the employee’s own 

serious health condition prevented the 

employee from returning to work during 

that time period regardless of the 

designation, an employee may not be 

able to show that the employee suffered 

harm as a result of the employer’s 

actions. However, if an employee took 

leave to provide care for a son or 

daughter with a serious health condition 

believing it would not count toward the 

employee’s FMLA entitlement, and the 

employee planned to later use that 

FMLA leave to provide care for a spouse 

who would need assistance when 

recovering from surgery planned for a 

later date, the employee may be able to 

show that harm has occurred as a result 

of the employer’s failure to designate 

properly. The employee might establish 

this by showing that he or she would 

have arranged for an alternative 

caregiver for the seriously-ill son or 

daughter if the leave had been 

designated timely. 

§ 825.302 Employee notice requirements 

for foreseeable FMLA leave. 

(a) Timing of notice. 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. For example, an employee’s 

health condition may require leave to 

commence earlier than anticipated 

before the birth of a child. Similarly, 

little opportunity for notice may be 

given before placement for adoption. 

Whether the leave is to be continuous or 

is to be taken intermittently or on a 

reduced schedule basis, notice need 

only be given one time, but the 

employee shall advise the employer as 

soon as practicable if dates of scheduled 

leave change or are extended, or were 

initially unknown. In those cases where 

the employee does not provide at least 

30 days notice of foreseeable leave, the 

employee shall explain the reasons why 

such notice was not practicable upon a 

request from the employer for such 

information. 

(b) As soon as practicable means as 

soon as both possible and practical, 

taking into account all of the facts and 

circumstances in the individual case. 

For example, where an employee learns 

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during the work day on Monday that a 

scheduled doctor appointment has been 

rescheduled from Friday to Wednesday 

of the same week, it would ordinarily be 

practicable for the employee to provide 

notice of the schedule change to the 

employer before the end of the work 

day. If the employee did not learn of the 

change in the scheduled appointment 

until after work hours, the employee 

should be able to provide the employer 

with notice the next business day. 

(c) Content of notice. An employee 

shall provide at least verbal notice 

sufficient to make the employer aware 

that the employee needs FMLAqualifying leave, and the anticipated 

timing and duration of the leave. The 

employee need not expressly assert 

rights under the FMLA or even mention 

the FMLA. The employee must provide 

sufficient information that indicates that 

a condition renders the employee 

unable to perform the functions of the 

job, or if the leave is for a family 

member, that the condition renders the 

family member unable to perform daily 

activities; the anticipated duration of 

the absence; and whether the employee 

or the employee’s family member 

intends to visit a health care provider or 

has a condition for which the employee 

or the employee’s family member is 

under the continuing care of a health 

care provider. The employer should 

inquire further of the employee if it is 

necessary to have more information 

about whether FMLA leave is being 

sought by the employee, and obtain the 

necessary details of the leave to be 

taken. In the case of medical conditions, 

the employer may find it necessary to 

inquire further to determine if the leave 

is because of a serious health condition 

and may request medical certification to 

support the need for such leave (see 

§ 825.305). An employee has an 

obligation to respond to an employer’s 

questions designed to determine 

whether an absence is potentially 

FMLA-qualifying. Failure to respond to 

reasonable employer inquiries regarding 

the leave request may result in denial of 

FMLA protection if the employer is 

unable to determine whether the leave 

is FMLA-qualifying. 

(d) Complying with employer policy. 

An employer may require an employee 

to comply with the employer’s usual 

and customary notice and procedural 

requirements for requesting leave, 

absent unusual circumstances. 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. An 

employee also may be required by an 

employer’s policy to contact a specific 

individual. Unusual circumstances 

would include situations such as when 

an employee is unable to call in due to 

his/her medical condition and his/her 

spouse calls the direct supervisor to 

report the absence instead of calling the 

human resources department as 

required by the employer policy. Where 

an employee does not comply with the 

employer’s usual notice and procedural 

requirements, and no unusual 

circumstances justify the failure to 

comply, FMLA-protected leave may be 

delayed or denied. However, FMLAprotected leave may not be delayed or 

denied where the employer’s policy 

requires notice to be given sooner than 

set forth in paragraph (a) of this section 

and the employee provides timely 

notice as set forth in paragraph (a) of 

this section. 

(e) Scheduling planned medical 

treatment. When planning medical 

treatment, the employee must consult 

with the employer and make a 

reasonable effort to schedule the 

treatment so as not to disrupt unduly 

the employer’s operations, subject to the 

approval of the health care provider. 

Employees are ordinarily expected to 

consult with their employers prior to 

the scheduling of treatment in order to 

work out a treatment schedule which 

best suits the needs of both the 

employer and the employee. If an 

employee who provides notice of the 

need to take FMLA leave on an 

intermittent basis for planned medical 

treatment neglects to consult with the 

employer to make a reasonable effort to 

arrange the schedule of treatments so as 

not to unduly disrupt the employer’s 

operations, the employer may initiate 

discussions with the employee and 

require the employee to attempt to make 

such arrangements, subject to the 

approval of the health care provider. See 

§§ 825.203 and 825.205. 

(f) In the case of intermittent leave or 

leave on a reduced leave schedule 

which is medically necessary, an 

employee shall advise the employer, 

upon request, of the reasons why the 

intermittent/reduced leave schedule is 

necessary and of the schedule for 

treatment, if applicable. The employee 

and employer shall attempt to work out 

a schedule which meets the employee’s 

needs without unduly disrupting the 

employer’s operations, subject to the 

approval of the health care provider. 

(g) An employer may waive 

employees’ FMLA notice requirements. 

§ 825.303 Employee notice requirements 

for unforeseeable FMLA leave. 

(a) Timing of notice. When the 

approximate timing of the need for leave 

is not foreseeable, an employee must 

provide notice to the employer as soon 

as practicable under the facts and 

circumstances of the particular case. 

Where the need for leave is 

unforeseeable, it is expected that an 

employee will give notice to the 

employer promptly. Notice may be 

given by the employee’s spokesperson 

(e.g., spouse, adult family member or 

other responsible party) if the employee 

is unable to do so personally. For 

example, if an employee’s child has a 

severe asthma attack and the employee 

takes the child to the emergency room, 

the employee would not be required to 

leave his or her child in order to report 

the absence while the child is receiving 

emergency treatment. However, if the 

child’s asthma attack required only the 

use of an inhaler at home followed by 

period of rest, the employee would be 

expected to call the employer promptly 

after ensuring the child has used the 

inhaler. 

(b) Content of notice. An employee 

shall provide sufficient information for 

an employer to reasonably determine 

whether the FMLA may apply to the 

leave request. The employee need not 

expressly assert rights under the FMLA 

or even mention the FMLA. The 

employee must provide sufficient 

information that indicates that a 

condition renders the employee unable 

to perform the functions of the job, or 

if the leave is for a family member, that 

the condition renders the family 

member unable to perform daily 

activities; the anticipated duration of 

the absence; and whether the employee 

or the employee’s family member 

intends to visit a health care provider or 

has a condition for which the employee 

or the employee’s family member is 

under the continuing care of a health 

care provider. Calling in ‘‘sick’’ without 

providing more information will not be 

considered sufficient notice to trigger an 

employer’s obligations under the Act. 

The employer will be expected to obtain 

any additional required information 

through informal means. An employee 

has an obligation to respond to an 

employer’s questions designed to 

determine whether an absence is 

potentially FMLA-qualifying. Failure to 

respond to reasonable employer 

inquiries regarding the leave request 

may result in denial of FMLA protection 

if the employer is unable to determine 

whether the leave is FMLA-qualifying. 

(c) Complying with employer policy. 

When the need for leave is not 

foreseeable, an employee must comply 

with the employer’s usual and 

customary notice and procedural 

requirements for requesting leave, 

except when extraordinary 

circumstances exist. For example, an 

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employer may require employees to call 

a designated number or a specific 

individual to request leave. However, if 

an employee requires emergency 

medical treatment, he or she would not 

be required to follow the call-in 

procedure until his or her condition is 

stabilized and he or she has access to, 

and is able to use, a phone. FMLAprotected leave may not be delayed or 

denied where the employer’s policy 

requires notice to be given sooner than 

set forth in paragraph (a) of this section 

and the employee provides timely 

notice as set forth in paragraph (a) of 

this section. In the case of a medical 

emergency requiring leave because of an 

employee’s own serious health 

condition or to care for a family member 

with a serious health condition, written 

advance notice pursuant to an 

employer’s internal rules and 

procedures may not be required when 

FMLA leave is involved. 

§ 825.304 Employee failure to provide 

notice. 

(a) Waiver of notice. An employer 

may waive employees’ FMLA notice 

obligations or the employer’s own 

internal rules on leave notice 

requirements. If an employer does not 

waive the employee’s obligations under 

its internal leave rules, the employer 

may take appropriate action under its 

internal rules and procedures for failure 

to follow its usual and customary 

notification rules as long as the actions 

are taken in a manner that does not 

discriminate against employees taking 

FMLA leave and the rules are not 

inconsistent with § 825.303(a). 

(b) Foreseeable leave—30 days. When 

the need for FMLA leave is foreseeable 

at least 30 days in advance and an 

employee fails to give timely advance 

notice with no reasonable excuse, the 

employer may delay FMLA coverage 

until 30 days after the date the 

employee provides notice. The need for 

leave and the approximate date leave 

would be taken must have been clearly 

foreseeable to the employee 30 days in 

advance of the leave. For example, 

knowledge that an employee would 

receive a telephone call about the 

availability of a child for adoption at 

some unknown point in the future 

would not be sufficient to establish the 

leave was clearly foreseeable 30 days in 

advance. 

(c) Foreseeable leave—less than 30 

days. When the need for FMLA leave is 

foreseeable fewer than 30 days in 

advance and an employee fails to give 

notice as soon as practicable under the 

particular facts and circumstances, the 

extent to which an employer may delay 

FMLA coverage for leave depends on 

the facts of the particular case. For 

example, if an employee reasonably 

should have given the employer two 

weeks notice but instead only provided 

one week notice, then the employer may 

delay FMLA-protected leave for one 

week (thus, if the employer elects to 

delay FMLA coverage and the employee 

nonetheless takes leave one week after 

providing the notice (i.e., a week before 

the two week notice period has been 

met) the leave will not be FMLAprotected). 

(d) Unforeseeable leave. When the 

need for FMLA leave is unforeseeable 

and an employee fails to give notice in 

accordance with § 825.303, the extent to 

which an employer may delay FMLA 

coverage for leave depends on the facts 

of the particular case. For example, if it 

would have been practicable for an 

employee to have given the employer 

notice of the need for leave promptly, 

but instead the employee provided 

notice two days after the leave began, 

then the employer may delay FMLA 

coverage of the leave by two days. 

(e) Proper notice required. In all cases, 

in order for the onset of an employee’s 

FMLA leave to be delayed due to lack 

of required notice, it must be clear that 

the employee had actual notice of the 

FMLA notice requirements. This 

condition would be satisfied by the 

employer’s proper posting of the 

required notice at the worksite where 

the employee is employed and the 

employer’s provision of the required 

notice in either an employee handbook 

or annual distribution, as required by 

§ 825.300. 

§ 825.305 Medical certification, general 

rule. 

(a) General. An employer may require 

that an employee’s leave to care for the 

employee’s seriously ill spouse, son, 

daughter, or parent, or due to the 

employee’s own serious health 

condition that makes the employee 

unable to perform one or more of the 

essential functions of the employee’s 

position, be supported by a certification 

issued by the health care provider of the 

employee or the employee’s ill family 

member. An employer must give notice 

of a requirement for medical 

certification each time a certification is 

required; such notice must be written 

notice whenever required by 

§ 825.300(b). An employer’s oral request 

to an employee to furnish any 

subsequent medical certification is 

sufficient. 

(b) Timing. In most cases, the 

employer should request that an 

employee furnish certification from a 

health care provider at the time the 

employee gives notice of the need for 

leave or within five business days 

thereafter, or, in the case of unforeseen 

leave, within five business days after the 

leave commences. The employer may 

request certification at some later date if 

the employer later has reason to 

question the appropriateness of the 

leave or its duration. The employee 

must provide the requested certification 

to the employer within the time frame 

requested by the employer (which must 

allow at least 15 calendar days after the 

employer’s request), unless it is not 

practicable under the particular 

circumstances to do so despite the 

employee’s diligent, good faith efforts. 

(c) Complete and sufficient 

certification. The employee must 

provide a complete and sufficient 

medical certification to the employer if 

required by the employer in accordance 

with § 825.306. The employer shall 

advise an employee whenever the 

employer finds a certification 

incomplete or insufficient, and shall 

state in writing what additional 

information is necessary to make the 

certification complete and sufficient. A 

certification is considered incomplete if 

the employer receives a certification, 

but one or more of the applicable entries 

have not been completed. A certification 

is considered insufficient if the 

employer receives a complete 

certification, but the information 

provided is vague, ambiguous or nonresponsive. The employer must provide 

the employee with seven calendar days 

(unless not practicable under the 

particular circumstances despite the 

employee’s diligent good faith efforts) to 

cure any such deficiency. If the 

deficiencies specified by the employer 

are not cured in the resubmitted 

certification, the employer may deny the 

taking of FMLA leave, in accordance 

with § 825.311. A certification that is 

not returned to the employer is not 

considered incomplete or insufficient, 

but constitutes a failure to provide 

certification. 

(d) Consequences. At the time the 

employer requests certification, the 

employer must also advise an employee 

of the anticipated consequences of an 

employee’s failure to provide adequate 

certification. If the employee fails to 

provide the employer with a complete 

and sufficient medical certification, 

despite the opportunity to cure the 

certification as provided in paragraph 

(c) of this section, or fails to provide any 

certification, the employer may deny the 

taking of FMLA leave, in accordance 

with § 825.311. It is the employee’s 

responsibility either to furnish a 

complete and sufficient certification or 

to furnish the health care provider 

providing the certification with any 

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necessary authorization from the 

employee or the employee’s family 

member in order for the health care 

provider to release a complete and 

sufficient certification to the employer 

to support the employee’s FMLA 

request. This provision will apply in 

any case where an employer requests a 

certification permitted by these 

regulations, whether it is the initial 

certification, a recertification, a second 

or third opinion, or a fitness for duty 

certificate, including any clarifications 

necessary to determine if such 

certifications are authentic and 

sufficient. See §§ 825.306, 825.307, 

825.308, and 825.310. 

(e) Annual medical certification. 

Where the employee’s need for leave 

due to the employee’s own serious 

health condition, or the serious health 

condition of the employee’s spouse, son, 

daughter, or parent lasts beyond a single 

leave year (as defined in § 825.200), the 

employer may require the employee to 

provide a new medical certification in 

each subsequent leave year. 

§ 825.306 Content of medical certification. 

(a) Required information. An 

employer may require an employee to 

obtain a medical certification from a 

health care provider that sets forth the 

following information: 

(1) The name, address, telephone 

number, and fax number of the health 

care provider and type of medical 

practice, including pertinent 

specialization; 

(2) The approximate date on which 

the serious health condition 

commenced, and its probable duration; 

(3) A statement or description of 

appropriate medical facts regarding the 

patient’s health condition for which 

FMLA leave is requested. The medical 

facts must be sufficient to support the 

need for leave. Such medical facts may 

include information on symptoms, 

diagnosis, hospitalization, doctor visits, 

whether medication has been 

prescribed, any referrals for evaluation 

or treatment (physical therapy, for 

example), or any other regimen of 

continuing treatment; 

(4) If the employee is the patient, 

information sufficient to establish that 

the employee cannot perform the 

functions of the employee’s job, as well 

as the nature of any other work 

restrictions, and the likely duration of 

such inability (see § 825.123(b) and (c)); 

(5) If the patient is a qualified family 

member, information sufficient to 

establish that the family member is in 

need of care, as described in § 825.124, 

and an estimate of the frequency and 

duration of the leave required to care for 

the family member; 

(6) If an employee requests leave on 

an intermittent or reduced schedule 

basis for planned medical treatment of 

the employee or a qualified family 

member, information sufficient to 

establish the medical necessity for such 

intermittent or reduced schedule leave 

and an estimate of the dates and 

duration of such treatments and any 

periods of recovery; 

(7) If an employee requests leave on 

an intermittent or reduced schedule 

basis for the employee’s health 

condition, including pregnancy, that 

may result in unforeseeable episodes of 

incapacity, information sufficient to 

establish the medical necessity for such 

intermittent or reduced schedule leave 

and an estimate of the frequency and 

duration of the episodes of incapacity; 

and 

(8) If an employee requests leave on 

an intermittent or reduced schedule 

basis to care for a qualified family 

member, a statement that such leave is 

medically necessary to care for the 

family member, as described in 

§§ 825.124 and 825.203(b), which can 

include assisting in the family member’s 

recovery, and an estimate of the 

frequency and duration of the required 

leave. 

(b) DOL has developed an optional 

form (Form WH–380, as revised) for 

employees’ (or their family members’) 

use in obtaining medical certification, 

including second and third opinions, 

from health care providers that meets 

FMLA’s certification requirements. (See 

Appendix B to these regulations.) This 

optional form reflects certification 

requirements so as to permit the health 

care provider to furnish appropriate 

medical information within his or her 

knowledge. Form WH–380, as revised, 

or another form containing the same 

basic information, may be used by the 

employer; however, no information may 

be required beyond that specified in 

§§ 825.306, 825.307, and 825.308. In all 

instances the information on the form 

must relate only to the serious health 

condition for which the current need for 

leave exists. 

(c) If an employee is on FMLA leave 

running concurrently with a workers’

compensation absence, and the 

provisions of the workers’ compensation 

statute permit the employer or the 

employer’s representative to request 

additional information from the 

employee’s workers’ compensation 

health care provider, the FMLA does not 

prevent the employer from following the 

workers’ compensation provisions. 

Similarly, an employer may request 

additional information in accordance 

with a paid leave policy or disability 

plan that requires greater information to 

qualify for payments or benefits, 

provided that the employer informs the 

employee that the additional 

information only needs to be provided 

in connection with receipt of such 

payments or benefits. If the employee 

fails to provide the information required 

for receipt of such payments or benefits, 

the employee’s entitlement to take 

unpaid FMLA leave will not be affected. 

See § 825.207(a). 

(d) If an employee’s serious health 

condition may also be a disability 

within the meaning of the Americans 

with Disabilities Act (ADA), the FMLA 

does not prevent the employer from 

following the procedures for requesting 

medical information under the ADA. 

(e) While an employee may choose to 

comply with the certification 

requirement by providing the employer 

with an authorization release or waiver 

allowing the employer to communicate 

directly with the employee’s health care 

provider, the employee may not be 

required to provide such an 

authorization release or waiver. In all 

instances in which certification is 

requested, it is the employee’s 

responsibility to provide the employer 

with complete and sufficient 

certification and failure to do so may 

result in the denial of FMLA leave. See 

§ 825.305(d). 

§ 825.307 Authentication and clarification 

of medical certification. 

(a) Clarification and authentication. If 

an employee submits a complete and 

sufficient certification signed by the 

health care provider, the employer may 

not request additional information from 

the employee’s health care provider. 

However, the employer may contact the 

employee’s health care provider for 

purposes of clarification and 

authentication of the medical 

certification (whether initial 

certification or recertification) after the 

employer has given the employee an 

opportunity to cure any deficiencies as 

set forth in § 825.305(c). For purposes of 

these regulations, ‘‘authentication’’

means providing the health care 

provider with a copy of the certification 

and requesting verification that the 

information contained on the 

certification form was completed and/or 

authorized by the health care provider 

who signed the document; no additional 

medical information may be requested 

and the employee’s permission is not 

required. ‘‘Clarification’’ means 

contacting the health care provider to 

understand the handwriting on the 

medical certification or to understand 

the meaning of a response. Employers 

may not ask health care providers for 

additional information beyond that 

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required by the certification form. 

Contact between the employer and the 

employee’s health care provider for 

purposes of clarification must comply 

with the requirements of the Health 

Insurance Portability and 

Accountability Act (‘‘HIPAA’’) Privacy 

Rule (see 45 CFR parts 160 and 164). If 

an employee chooses not to provide the 

employer with authorization allowing 

the employer to clarify the certification 

with the employee’s health care 

provider, and does not otherwise clarify 

the certification, the employer may deny 

the taking of FMLA leave if the 

certification is unclear. See § 825.305(d). 

It is the employee’s responsibility to 

provide the employer with a complete 

and sufficient certification or to provide 

the health care provider with sufficient 

authorization from the employee or the 

employee’s family member to clarify the 

certification so that it is complete and 

sufficient. 

(b) Second opinion. (1) An employer 

who has reason to doubt the validity of 

a medical certification may require the 

employee to obtain a second opinion at 

the employer’s expense. Pending receipt 

of the second (or third) medical opinion, 

the employee is provisionally entitled to 

the benefits of the Act, including 

maintenance of group health benefits. If 

the certifications do not ultimately 

establish the employee’s entitlement to 

FMLA leave, the leave shall not be 

designated as FMLA leave and may be 

treated as paid or unpaid leave under 

the employer’s established leave 

policies. In addition, the consequences 

set forth in § 825.305(d) will apply if the 

employee or the employee’s family 

member fails to authorize his or her 

health care provider to release all 

relevant medical information pertaining 

to the serious health condition at issue 

if requested by the health care provider 

designated to provide a second opinion 

in order to render a sufficient and 

complete second opinion. 

(2) The employer is permitted to 

designate the health care provider to 

furnish the second opinion, but the 

selected health care provider may not be 

employed on a regular basis by the 

employer. The employer may not 

regularly contract with or otherwise 

regularly utilize the services of the 

health care provider furnishing the 

second opinion unless the employer is 

located in an area where access to 

health care is extremely limited (e.g., a 

rural area where no more than one or 

two doctors practice in the relevant 

specialty in the vicinity). 

(c) Third opinion. If the opinions of 

the employee’s and the employer’s 

designated health care providers differ, 

the employer may require the employee 

to obtain certification from a third 

health care provider, again at the 

employer’s expense. This third opinion 

shall be final and binding. The third 

health care provider must be designated 

or approved jointly by the employer and 

the employee. The employer and the 

employee must each act in good faith to 

attempt to reach agreement on whom to 

select for the third opinion provider. If 

the employer does not attempt in good 

faith to reach agreement, the employer 

will be bound by the first certification. 

If the employee does not attempt in 

good faith to reach agreement, the 

employee will be bound by the second 

certification. For example, an employee 

who refuses to agree to see a doctor in 

the specialty in question may be failing 

to act in good faith. On the other hand, 

an employer that refuses to agree to any 

doctor on a list of specialists in the 

appropriate field provided by the 

employee and whom the employee has 

not previously consulted may be failing 

to act in good faith. In addition, the 

consequences set forth in § 825.305(d) 

will apply if the employee or the 

employee’s family member fails to 

authorize his or her health care provider 

to release all relevant medical 

information pertaining to the serious 

health condition at issue if requested by 

the health care provider designated to 

provide a third opinion in order to 

render a sufficient and complete third 

opinion. 

(d) Copies of opinions. The employer 

is required to provide the employee 

with a copy of the second and third 

medical opinions, where applicable, 

upon request by the employee. 

Requested copies are to be provided 

within five business days unless 

extenuating circumstances prevent such 

action. 

(e) Travel expenses. If the employer 

requires the employee to obtain either a 

second or third opinion, the employer 

must reimburse an employee or family 

member for any reasonable ‘‘out of 

pocket’’ travel expenses incurred to 

obtain the second and third medical 

opinions. The employer may not require 

the employee or family member to travel 

outside normal commuting distance for 

purposes of obtaining the second or 

third medical opinions except in very 

unusual circumstances. 

(f) Medical certification abroad. In 

circumstances when the employee or a 

family member is visiting in another 

country, or a family member resides in 

another country, and a serious health 

condition develops, the employer shall 

accept a medical certification as well as 

second and third opinions from a health 

care provider who practices in that 

country. 

§ 825.308 Recertifications. 

(a) 30-day rule. Generally, an 

employer may request recertification no 

more often than every 30 days and only 

in connection with an absence by the 

employee. 

(b) More than 30 days. If the medical 

certification indicates that the minimum 

duration of incapacity is more than 30 

days, an employer must wait until that 

minimum duration expires before 

requesting a recertification, unless 

paragraph (c) applies. For example, if 

the medical certification states that an 

employee will be unable to work, 

whether continuously or on an 

intermittent basis, for 40 days, the 

employer must wait 40 days before 

requesting a recertification. In all cases, 

an employer may request a 

recertification every six months in 

connection with an absence by the 

employee. 

(c) Less than 30 days. An employer 

may request recertification in less than 

30 days if: 

(1) The employee requests an 

extension of leave; 

(2) Circumstances described by the 

previous certification have changed 

significantly (e.g., the duration or 

frequency of the absence, the nature or 

severity of the illness, complications). 

For example, if a medical certification 

stated that an employee would need 

leave for one to two days when the 

employee suffered a migraine headache 

and the employee’s absences for his/her 

last two migraines lasted four days each, 

then the increased duration of absence 

might constitute a significant change in 

circumstances allowing the employer to 

request a recertification in less than 30 

days. Likewise, if an employee had a 

pattern of using unscheduled FMLA 

leave for migraines in conjunction with 

his/her scheduled days off, then the 

timing of the absences also might 

constitute a significant change in 

circumstances sufficient for an 

employer to request a recertification 

more frequently than every 30 days; or 

(3) The employer receives information 

that casts doubt upon the employee’s 

stated reason for the absence or the 

continuing validity of the certification. 

For example, if an employee is on 

FMLA leave for four weeks due to the 

employee’s knee surgery, including 

recuperation, and the employee plays in 

company softball league games during 

the employee’s third week of FMLA 

leave, such information might be 

sufficient to cast doubt upon the 

continuing validity of the certification 

allowing the employer to request a 

recertification in less than 30 days. 

(d) Timing. The employee must 

provide the requested recertification to 

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the employer within the time frame 

requested by the employer (which must 

allow at least 15 calendar days after the 

employer’s request), unless it is not 

practicable under the particular 

circumstances to do so despite the 

employee’s diligent, good faith efforts. 

(e) Content. The employer may ask for 

the same information when obtaining 

recertification as that permitted for the 

original certification as set forth in 

§ 825.306. The employee has the same 

obligations to participate and cooperate 

(including providing a complete and 

sufficient certification or adequate 

authorization to the health care 

provider) in the recertification process 

as in the initial certification process. See 

§ 825.305(d). As part of the information 

allowed to be obtained on 

recertification, the employer may 

provide the health care provider with a 

record of the employee’s absence 

pattern and ask the health care provider 

if the serious health condition and need 

for leave is consistent with such a 

pattern. 

(f) Any recertification requested by 

the employer shall be at the employee’s 

expense unless the employer provides 

otherwise. No second or third opinion 

on recertification may be required. 

§ 825.309 Intent to return to work. 

(a) An employer may require an 

employee on FMLA leave to report 

periodically on the employee’s status 

and intent to return to work. The 

employer’s policy regarding such 

reports may not be discriminatory and 

must take into account all of the 

relevant facts and circumstances related 

to the individual employee’s leave 

situation. 

(b) If an employee gives unequivocal 

notice of intent not to return to work, 

the employer’s obligations under FMLA 

to maintain health benefits (subject to 

COBRA requirements) and to restore the 

employee cease. However, these 

obligations continue if an employee 

indicates he or she may be unable to 

return to work but expresses a 

continuing desire to do so. 

(c) It may be necessary for an 

employee to take more leave than 

originally anticipated. Conversely, an 

employee may discover after beginning 

leave that the circumstances have 

changed and the amount of leave 

originally anticipated is no longer 

necessary. An employee may not be 

required to take more FMLA leave than 

necessary to resolve the circumstance 

that precipitated the need for leave. In 

both of these situations, the employer 

may require that the employee provide 

the employer reasonable notice (i.e., 

within two business days) of the 

changed circumstances where 

foreseeable. The employer may also 

obtain information on such changed 

circumstances through requested status 

reports. 

§ 825.310 Fitness-for-duty certification. 

(a) As a condition of restoring an 

employee whose FMLA leave was 

occasioned by the employee’s own 

serious health condition that made the 

employee unable to perform the 

employee’s job, an employer may have 

a uniformly-applied policy or practice 

that requires all similarly-situated 

employees (i.e., same occupation, same 

serious health condition) who take leave 

for such conditions to obtain and 

present certification from the 

employee’s health care provider that the 

employee is able to resume work. The 

employee has the same obligations to 

participate and cooperate (including 

providing a complete and sufficient 

certification or providing sufficient 

authorization to the health care provider 

to provide the information directly to 

the employer) in the fitness-for-duty 

certification process as in the initial 

certification process. See § 825.305(d). 

(b) If State or local law or the terms 

of a collective bargaining agreement 

govern an employee’s return to work, 

those provisions shall be applied. 

Similarly, requirements under the 

Americans with Disabilities Act (ADA) 

that any return-to-work physical be jobrelated and consistent with business 

necessity apply. For example, an 

attorney could not be required to submit 

to a medical examination or inquiry just 

because her leg had been amputated. 

The essential functions of an attorney’s 

job do not require use of both legs; 

therefore such an inquiry would not be 

job related. An employer may require a 

warehouse laborer, whose back 

impairment affects the ability to lift, to 

be examined by an orthopedist, but may 

not require this employee to submit to 

an HIV test where the test is not related 

to either the essential functions of his/ 

her job or to his/her impairment. 

(c) An employer may seek fitness-forduty certification only with regard to 

the particular health condition that 

caused the employee’s need for FMLA 

leave. The certification from the 

employee’s health care provider must 

certify that the employee is able to 

resume work. An employer may require 

that the certification address the 

employee’s ability to perform the 

essential functions of the employee’s job 

by providing a list of essential functions 

with the eligibility notice required by 

§ 825.300(b). If the employer timely 

provides such a list, the employee’s 

health care provider must certify that 

the employee can perform the identified 

essential functions of his or her job. 

Following the procedures set forth in 

§ 825.307(a), the employer may contact 

the employee’s health care provider for 

purposes of clarifying and 

authenticating the fitness-for-duty 

certification. Clarification may be 

requested only for the serious health 

condition for which FMLA leave was 

taken. The employer may not delay the 

employee’s return to work while contact 

with the health care provider is being 

made. 

(d) The cost of the certification shall 

be borne by the employee, and the 

employee is not entitled to be paid for 

the time or travel costs spent in 

acquiring the certification. 

(e) The eligibility notice required in 

§ 825.300(b) shall advise the employee if 

the employer will require fitness-forduty certification to return to work. No 

second or third fitness-for-duty 

certification may be required. 

(f) An employer may delay restoration 

to employment until an employee 

submits a required fitness-for-duty 

certification unless the employer has 

failed to provide the notice required in 

paragraph (e) of this section. If an 

employer provides the notice required, 

an employee who does not provide a 

fitness-for-duty certification or request 

additional FMLA leave is no longer 

entitled to reinstatement under the 

FMLA. See § 825.311(d). 

(g) An employer is not entitled to 

certification of fitness to return to duty 

for each absence taken on an 

intermittent or reduced leave schedule 

as set forth in §§ 825.203 through 

825.205. However, an employer is 

entitled to a certification of fitness to 

return to duty for such absences up to 

once every 30 days if reasonable safety 

concerns exist regarding the employee’s 

ability to perform his or her duties, 

based on the serious health condition 

for which the employee took such leave. 

The employer may not terminate the 

employment of the employee while 

awaiting such a certification of fitness to 

return to duty for an intermittent or 

reduced schedule leave absence. 

§ 825.311 Failure to provide medical 

certification. 

(a) Foreseeable leave. In the case of 

foreseeable leave, if an employee fails to 

provide certification in a timely manner 

as required by § 825.305, then an 

employer may deny FMLA coverage 

until the required certification is 

provided. For example, if an employee 

has 15 days to provide a certification 

and does not provide the certification 

for 45 days without sufficient reason for 

the delay, the employer can deny FMLA 

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protections for the 30 day period 

following the expiration of the 15 day 

time period, if the employee takes leave 

during such period. 

(b) Unforeseeable leave. In the case of 

unforeseeable leave, an employer may 

deny FMLA coverage for the requested 

leave if the employee fails to provide a 

medical certification within 15 calendar 

days from receipt of the request for 

certification unless not practicable due 

to extenuating circumstances. For 

example, in the case of a medical 

emergency, it may not be practicable for 

an employee to provide the required 

certification within 15 calendar days. 

Absent such extenuating circumstances, 

if the employee fails to timely return the 

certification, the employer can deny 

FMLA protections for the leave 

following the expiration of the 15-day 

time period until a sufficient 

certification is provided. If the 

employee never produces the 

certification, the leave is not FMLA 

leave. 

(c) Recertification. An employee must 

provide recertification within the time 

requested by the employer (which must 

allow at least 15 calendar days after the 

request) or as soon as practicable under 

the particular facts and circumstances. If 

an employee fails to provide a 

recertification within a reasonable time 

under the particular facts and 

circumstances, then the employer may 

deny continuation of the FMLA leave 

protections until the employee produces 

a sufficient recertification. If the 

employee never produces the 

recertification, the leave is not FMLA 

leave. 

(d) Fitness-for-duty certification. 

When requested by the employer 

pursuant to a uniformly applied policy 

for similarly-situated employees, the 

employee must provide medical 

certification at the time the employee 

seeks reinstatement at the end of FMLA 

leave taken for the employee’s serious 

health condition, that the employee is 

fit for duty and able to return to work 

(see § 825.310(a)) if the employer has 

provided the required notice (see 

§ 825.300(c)); the employer may delay 

restoration until the certification is 

provided. In this situation, unless the 

employee provides either a fitness-forduty certification or a new medical 

certification for a serious health 

condition at the time FMLA leave is 

concluded, the employee may be 

terminated. See also § 825.213(a)(3). 

Subpart D—Enforcement Mechanisms 

§ 825.400 Enforcement, general rules. 

(a) The employee has the choice of: 

(1) Filing, or having another person 

file on his or her behalf, a complaint 

with the Secretary of Labor, or 

(2) Filing a private lawsuit pursuant 

to section 107 of FMLA. 

(b) If the employee files a private 

lawsuit, it must be filed within two 

years after the last action which the 

employee contends was in violation of 

the Act, or three years if the violation 

was willful. 

(c) If an employer has violated one or 

more provisions of FMLA, and if 

justified by the facts of a particular case, 

an employee may receive one or more 

of the following: wages, employment 

benefits, or other compensation denied 

or lost to such employee by reason of 

the violation; or, where no such tangible 

loss has occurred, such as when FMLA 

leave was unlawfully denied, any actual 

monetary loss sustained by the 

employee as a direct result of the 

violation, such as the cost of providing 

care, up to a sum equal to 12 weeks of 

wages for the employee. In addition, the 

employee may be entitled to interest on 

such sum, calculated at the prevailing 

rate. An amount equaling the preceding 

sums may also be awarded as liquidated 

damages unless such amount is reduced 

by the court because the violation was 

in good faith and the employer had 

reasonable grounds for believing the 

employer had not violated the Act. 

When appropriate, the employee may 

also obtain appropriate equitable relief, 

such as employment, reinstatement and 

promotion. When the employer is found 

in violation, the employee may recover 

a reasonable attorney’s fee, reasonable 

expert witness fees, and other costs of 

the action from the employer in 

addition to any judgment awarded by 

the court. 

§ 825.401 Filing a complaint with the 

Federal Government. 

(a) A complaint may be filed in 

person, by mail or by telephone, with 

the Wage and Hour Division, 

Employment Standards Administration, 

U.S. Department of Labor. A complaint 

may be filed at any local office of the 

Wage and Hour Division; the address 

and telephone number of local offices 

may be found in telephone directories 

or on the Department’s website. 

(b) A complaint filed with the 

Secretary of Labor should be filed 

within a reasonable time of when the 

employee discovers that his or her 

FMLA rights have been violated. In no 

event may a complaint be filed more 

than two years after the action which is 

alleged to be a violation of FMLA 

occurred, or three years in the case of 

a willful violation. 

(c) No particular form of complaint is 

required, except that a complaint must 

be reduced to writing and should 

include a full statement of the acts and/ 

or omissions, with pertinent dates, 

which are believed to constitute the 

violation. 

§ 825.402 Violations of the posting 

requirement. 

Section 825.300 describes the 

requirements for covered employers to 

post a notice for employees that 

explains the Act’s provisions. If a 

representative of the Department of 

Labor determines that an employer has 

committed a willful violation of this 

posting requirement, and that the 

imposition of a civil money penalty for 

such violation is appropriate, the 

representative may issue and serve a 

notice of penalty on such employer in 

person or by certified mail. Where 

service by certified mail is not accepted, 

notice shall be deemed received on the 

date of attempted delivery. Where 

service is not accepted, the notice may 

be served by regular mail. 

§ 825.403 Appealing the assessment of a 

penalty for willful violation of the posting 

requirement. 

(a) An employer may obtain a review 

of the assessment of penalty from the 

Wage and Hour Regional Administrator 

for the region in which the alleged 

violation(s) occurred. If the employer 

does not seek such a review or fails to 

do so in a timely manner, the notice of 

the penalty constitutes the final ruling 

of the Secretary of Labor. 

(b) To obtain review, an employer 

may file a petition with the Wage and 

Hour Regional Administrator for the 

region in which the alleged violations 

occurred. No particular form of petition 

for review is required, except that the 

petition must be in writing, should 

contain the legal and factual bases for 

the petition, and must be mailed to the 

Regional Administrator within 15 days 

of receipt of the notice of penalty. The 

employer may request an oral hearing 

which may be conducted by telephone. 

(c) The decision of the Regional 

Administrator constitutes the final order 

of the Secretary. 

§ 825.404 Consequences for an employer 

when not paying the penalty assessment 

after a final order is issued. 

The Regional Administrator may seek 

to recover the unpaid penalty pursuant 

to the Debt Collection Act (DCA), 31 

U.S.C. 3711 et seq., and, in addition to 

seeking recovery of the unpaid final 

order, may seek interest and penalties as 

provided under the DCA. The final 

order may also be referred to the 

Solicitor of Labor for collection. The 

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Secretary may file suit in any court of 

competent jurisdiction to recover the 

monies due as a result of the unpaid 

final order, interest, and penalties. 

Subpart E—Recordkeeping 

Requirements 

§ 825.500 Recordkeeping requirements. 

(a) FMLA provides that covered 

employers shall make, keep, and 

preserve records pertaining to their 

obligations under the Act in accordance 

with the recordkeeping requirements of 

section 11(c) of the Fair Labor Standards 

Act (FLSA) and in accordance with 

these regulations. FMLA also restricts 

the authority of the Department of Labor 

to require any employer or plan, fund or 

program to submit books or records 

more than once during any 12-month 

period unless the Department has 

reasonable cause to believe a violation 

of the FMLA exists or the DOL is 

investigating a complaint. These 

regulations establish no requirement for 

the submission of any records unless 

specifically requested by a Departmental 

official. 

(b) No particular order or form of 

records is required. These regulations 

establish no requirement that any 

employer revise its computerized 

payroll or personnel records systems to 

comply. However, employers must keep 

the records specified by these 

regulations for no less than three years 

and make them available for inspection, 

copying, and transcription by 

representatives of the Department of 

Labor upon request. The records may be 

maintained and preserved on microfilm 

or other basic source document of an 

automated data processing memory 

provided that adequate projection or 

viewing equipment is available, that the 

reproductions are clear and identifiable 

by date or pay period, and that 

extensions or transcriptions of the 

information required herein can be and 

are made available upon request. 

Records kept in computer form must be 

made available for transcription or 

copying. 

(c) Covered employers who have 

eligible employees must maintain 

records that must disclose the following: 

(1) Basic payroll and identifying 

employee data, including name, 

address, and occupation; rate or basis of 

pay and terms of compensation; daily 

and weekly hours worked per pay 

period; additions to or deductions from 

wages; and total compensation paid. 

(2) Dates FMLA leave is taken by 

FMLA eligible employees (e.g., available 

from time records, requests for leave, 

etc., if so designated). Leave must be 

designated in records as FMLA leave; 

leave so designated may not include 

leave required under State law or an 

employer plan which is not also covered 

by FMLA. 

(3) If FMLA leave is taken by eligible 

employees in increments of less than 

one full day, the hours of the leave. 

(4) Copies of employee notices of 

leave furnished to the employer under 

FMLA, if in writing, and copies of all 

eligibility notices given to employees as 

required under FMLA and these 

regulations (see § 825.300(b)). Copies 

may be maintained in employee 

personnel files. 

(5) Any documents (including written 

and electronic records) describing 

employee benefits or employer policies 

and practices regarding the taking of 

paid and unpaid leaves. 

(6) Premium payments of employee 

benefits. 

(7) Records of any dispute between 

the employer and an eligible employee 

regarding designation of leave as FMLA 

leave, including any written statement 

from the employer or employee of the 

reasons for the designation and for the 

disagreement. 

(d) Covered employers with no 

eligible employees must maintain the 

records set forth in paragraph (c)(1) of 

this section. 

(e) Covered employers in a joint 

employment situation (see § 825.106) 

must keep all the records required by 

paragraph (c) of this section with 

respect to any primary employees, and 

must keep the records required by 

paragraph (c)(1) with respect to any 

secondary employees. 

(f) If FMLA-eligible employees are not 

subject to FLSA’s recordkeeping 

regulations for purposes of minimum 

wage or overtime compliance (i.e., not 

covered by or exempt from FLSA), an 

employer need not keep a record of 

actual hours worked (as otherwise 

required under FLSA, 29 CFR 

516.2(a)(7)), provided that: 

(1) Eligibility for FMLA leave is 

presumed for any employee who has 

been employed for at least 12 months; 

and 

(2) With respect to employees who 

take FMLA leave intermittently or on a 

reduced leave schedule, the employer 

and employee agree on the employee’s 

normal schedule or average hours 

worked each week and reduce their 

agreement to a written record 

maintained in accordance with 

paragraph (b) of this section. 

(g) Records and documents relating to 

medical certifications, recertifications or 

medical histories of employees or 

employees’ family members, created for 

purposes of FMLA, shall be maintained 

as confidential medical records in 

separate files/records from the usual 

personnel files, and if ADA is also 

applicable, such records shall be 

maintained in conformance with ADA 

confidentiality requirements (see 29 

CFR 1630.14(c)(1)), except that: 

(1) Supervisors and managers may be 

informed regarding necessary 

restrictions on the work or duties of an 

employee and necessary 

accommodations; 

(2) First aid and safety personnel may 

be informed (when appropriate) if the 

employee’s physical or medical 

condition might require emergency 

treatment; and 

(3) Government officials investigating 

compliance with FMLA (or other 

pertinent law) shall be provided 

relevant information upon request. 

Subpart F—Special Rules Applicable 

to Employees of Schools 

§ 825.600 Special rules for school 

employees, definitions. 

(a) Certain special rules apply to 

employees of ‘‘local educational 

agencies,’’ including public school 

boards and elementary and secondary 

schools under their jurisdiction, and 

private elementary and secondary 

schools. The special rules do not apply 

to other kinds of educational 

institutions, such as colleges and 

universities, trade schools, and 

preschools. 

(b) Educational institutions are 

covered by FMLA (and these special 

rules) and the Act’s 50-employee 

coverage test does not apply. The usual 

requirements for employees to be 

‘‘eligible’’ do apply, however, including 

employment at a worksite where at least 

50 employees are employed within 75 

miles. For example, employees of a rural 

school would not be eligible for FMLA 

leave if the school has fewer than 50 

employees and there are no other 

schools under the jurisdiction of the 

same employer (usually, a school board) 

within 75 miles. 

(c) The special rules affect the taking 

of intermittent leave or leave on a 

reduced leave schedule, or leave near 

the end of an academic term (semester), 

by instructional employees. 

‘‘Instructional employees’’ are those 

whose principal function is to teach and 

instruct students in a class, a small 

group, or an individual setting. This 

term includes not only teachers, but also 

athletic coaches, driving instructors, 

and special education assistants such as 

signers for the hearing impaired. It does 

not include, and the special rules do not 

apply to, teacher assistants or aides who 

do not have as their principal job actual 

teaching or instructing, nor does it 

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include auxiliary personnel such as 

counselors, psychologists, or curriculum 

specialists. It also does not include 

cafeteria workers, maintenance workers, 

or bus drivers. 

(d) Special rules which apply to 

restoration to an equivalent position 

apply to all employees of local 

educational agencies. 

§ 825.601 Special rules for school 

employees, limitations on intermittent 

leave. 

(a) Leave taken for a period that ends 

with the school year and begins the next 

semester is leave taken consecutively 

rather than intermittently. The period 

during the summer vacation when the 

employee would not have been required 

to report for duty is not counted against 

the employee’s FMLA leave entitlement. 

An instructional employee who is on 

FMLA leave at the end of the school 

year must be provided with any benefits 

over the summer vacation that 

employees would normally receive if 

they had been working at the end of the 

school year. 

(1) If an eligible instructional 

employee needs intermittent leave or 

leave on a reduced leave schedule to 

care for a family member, or for the 

employee’s own serious health 

condition, which is foreseeable based on 

planned medical treatment, and the 

employee would be on leave for more 

than 20 percent of the total number of 

working days over the period the leave 

would extend, the employer may 

require the employee to choose either 

to: 

(i) Take leave for a period or periods 

of a particular duration, not greater than 

the duration of the planned treatment; 

or 

(ii) Transfer temporarily to an 

available alternative position for which 

the employee is qualified, which has 

equivalent pay and benefits and which 

better accommodates recurring periods 

of leave than does the employee’s 

regular position. 

(2) These rules apply only to a leave 

involving more than 20 percent of the 

working days during the period over 

which the leave extends. For example, 

if an instructional employee who 

normally works five days each week 

needs to take two days of FMLA leave 

per week over a period of several weeks, 

the special rules would apply. 

Employees taking leave which 

constitutes 20 percent or less of the 

working days during the leave period 

would not be subject to transfer to an 

alternative position. ‘‘Periods of a 

particular duration’’ means a block, or 

blocks, of time beginning no earlier than 

the first day for which leave is needed 

and ending no later than the last day on 

which leave is needed, and may include 

one uninterrupted period of leave. 

(b) If an instructional employee does 

not give required notice of foreseeable 

FMLA leave (see § 825.302) to be taken 

intermittently or on a reduced leave 

schedule, the employer may require the 

employee to take leave of a particular 

duration, or to transfer temporarily to an 

alternative position. Alternatively, the 

employer may require the employee to 

delay the taking of leave until the notice 

provision is met. 

§ 825.602 Special rules for school 

employees, limitations on leave near the 

end of an academic term. 

(a) There are also different rules for 

instructional employees who begin 

leave more than five weeks before the 

end of a term, less than five weeks 

before the end of a term, and less than 

three weeks before the end of a term. 

Regular rules apply except in 

circumstances when: 

(1) An instructional employee begins 

leave more than five weeks before the 

end of a term. The employer may 

require the employee to continue taking 

leave until the end of the term if—

(i) The leave will last at least three 

weeks, and 

(ii) The employee would return to 

work during the three-week period 

before the end of the term. 

(2) The employee begins leave for a 

purpose other than the employee’s own 

serious health condition during the fiveweek period before the end of a term. 

The employer may require the employee 

to continue taking leave until the end of 

the term if —

(i) The leave will last more than two 

weeks, and 

(ii) The employee would return to 

work during the two-week period before 

the end of the term. 

(3) The employee begins leave for a 

purpose other than the employee’s own 

serious health condition during the 

three-week period before the end of a 

term, and the leave will last more than 

five working days. The employer may 

require the employee to continue taking 

leave until the end of the term. 

(b) For purposes of these provisions, 

‘‘academic term’’ means the school 

semester, which typically ends near the 

end of the calendar year and the end of 

spring each school year. In no case may 

a school have more than two academic 

terms or semesters each year for 

purposes of FMLA. An example of leave 

falling within these provisions would be 

where an employee plans two weeks of 

leave to care for a family member which 

will begin three weeks before the end of 

the term. In that situation, the employer 

could require the employee to stay out 

on leave until the end of the term. 

§ 825.603 Special rules for school 

employees, duration of FMLA leave. 

(a) If an employee chooses to take 

leave for ‘‘periods of a particular 

duration’’ in the case of intermittent or 

reduced schedule leave, the entire 

period of leave taken will count as 

FMLA leave. 

(b) In the case of an employee who is 

required to take leave until the end of 

an academic term, only the period of 

leave until the employee is ready and 

able to return to work shall be charged 

against the employee’s FMLA leave 

entitlement. The employer has the 

option not to require the employee to 

stay on leave until the end of the school 

term. Therefore, any additional leave 

required by the employer to the end of 

the school term is not counted as FMLA 

leave; however, the employer shall be 

required to maintain the employee’s 

group health insurance and restore the 

employee to the same or equivalent job 

including other benefits at the 

conclusion of the leave. 

§ 825.604 Special rules for school 

employees, restoration to ‘‘an equivalent 

position.’’

The determination of how an 

employee is to be restored to ‘‘an 

equivalent position’’ upon return from 

FMLA leave will be made on the basis 

of ‘‘established school board policies 

and practices, private school policies 

and practices, and collective bargaining 

agreements.’’ The ‘‘established policies’’

and collective bargaining agreements 

used as a basis for restoration must be 

in writing, must be made known to the 

employee prior to the taking of FMLA 

leave, and must clearly explain the 

employee’s restoration rights upon 

return from leave. Any established 

policy which is used as the basis for 

restoration of an employee to ‘‘an 

equivalent position’’ must provide 

substantially the same protections as 

provided in the Act for reinstated 

employees. See § 825.215. In other 

words, the policy or collective 

bargaining agreement must provide for 

restoration to an ‘‘equivalent position’’

with equivalent employment benefits, 

pay, and other terms and conditions of 

employment. For example, an employee 

may not be restored to a position 

requiring additional licensure or 

certification. 

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Subpart G—Effect of Other Laws, 

Employer Practices, and Collective 

Bargaining Agreements on Employee 

Rights Under FMLA 

§ 825.700 Interaction with employer’s 

policies. 

(a) An employer must observe any 

employment benefit program or plan 

that provides greater family or medical 

leave rights to employees than the rights 

established by the FMLA. Conversely, 

the rights established by the Act may 

not be diminished by any employment 

benefit program or plan. For example, a 

provision of a CBA which provides for 

reinstatement to a position that is not 

equivalent because of seniority (e.g., 

provides lesser pay) is superseded by 

FMLA. If an employer provides greater 

unpaid family leave rights than are 

afforded by FMLA, the employer is not 

required to extend additional rights 

afforded by FMLA, such as maintenance 

of health benefits (other than through 

COBRA), to the additional leave period 

not covered by FMLA. 

(b) Nothing in this Act prevents an 

employer from amending existing leave 

and employee benefit programs, 

provided they comply with FMLA. 

However, nothing in the Act is intended 

to discourage employers from adopting 

or retaining more generous leave 

policies. 

§ 825.701 Interaction with State laws. 

(a) Nothing in FMLA supersedes any 

provision of State or local law that 

provides greater family or medical leave 

rights than those provided by FMLA. 

The Department of Labor will not, 

however, enforce State family or 

medical leave laws, and States may not 

enforce the FMLA. Employees are not 

required to designate whether the leave 

they are taking is FMLA leave or leave 

under State law, and an employer must 

comply with the appropriate 

(applicable) provisions of both. An 

employer covered by one law and not 

the other has to comply only with the 

law under which it is covered. 

Similarly, an employee eligible under 

only one law must receive benefits in 

accordance with that law. If leave 

qualifies for FMLA leave and leave 

under State law, the leave used counts 

against the employee’s entitlement 

under both laws. Examples of the 

interaction between FMLA and State 

laws include: 

(1) If State law provides 16 weeks of 

leave entitlement over two years, an 

employee would be entitled to take 16 

weeks one year under State law and 12 

weeks the next year under FMLA. 

Health benefits maintenance under 

FMLA would be applicable only to the 

first 12 weeks of leave entitlement each 

year. If the employee took 12 weeks the 

first year, the employee would be 

entitled to a maximum of 12 weeks the 

second year under FMLA (not 16 

weeks). An employee would not be 

entitled to 28 weeks in one year. 

(2) If State law provides half-pay for 

employees temporarily disabled because 

of pregnancy for six weeks, the 

employee would be entitled to an 

additional six weeks of unpaid FMLA 

leave (or accrued paid leave). 

(3) A shorter notice period under 

State law must be allowed by the 

employer unless an employer has 

already provided, or the employee is 

requesting, more leave than required 

under State law. 

(4) If State law provides for only one 

medical certification, no additional 

certifications may be required by the 

employer unless the employer has 

already provided, or the employee is 

requesting, more leave than required 

under State law. 

(5) If State law provides six weeks of 

leave, which may include leave to care 

for a seriously-ill grandparent or a 

‘‘spouse equivalent,’’ and leave was 

used for that purpose, the employee is 

still entitled to 12 weeks of FMLA leave, 

as the leave used was provided for a 

purpose not covered by FMLA. If FMLA 

leave is used first for a purpose also 

provided under State law, and State 

leave has thereby been exhausted, the 

employer would not be required to 

provide additional leave to care for the 

grandparent or ‘‘spouse equivalent.’’

(6) If State law prohibits mandatory 

leave beyond the actual period of 

pregnancy disability, an instructional 

employee of an educational agency 

subject to special FMLA rules may not 

be required to remain on leave until the 

end of the academic term, as permitted 

by FMLA under certain circumstances. 

(See Subpart F of this part.) 

(b) [Reserved] 

§ 825.702 Interaction with Federal and 

State anti-discrimination laws. 

(a) Nothing in FMLA modifies or 

affects any Federal or State law 

prohibiting discrimination on the basis 

of race, religion, color, national origin, 

sex, age, or disability (e.g., Title VII of 

the Civil Rights Act of 1964, as amended 

by the Pregnancy Discrimination Act). 

FMLA’s legislative history explains that 

FMLA is ‘‘not intended to modify or 

affect the Rehabilitation Act of 1973, as 

amended, the regulations concerning 

employment which have been 

promulgated pursuant to that statute, or 

the Americans with Disabilities Act of 

1990, or the regulations issued under 

that act. Thus, the leave provisions of 

the [FMLA] are wholly distinct from the 

reasonable accommodation obligations 

of employers covered under the [ADA], 

employers who receive Federal financial 

assistance, employers who contract with 

the Federal government, or the Federal 

government itself. The purpose of the 

FMLA is to make leave available to 

eligible employees and employers 

within its coverage, and not to limit 

already existing rights and protection.’’

S. Rep. No. 103–3, at 38 (1993). An 

employer must therefore provide leave 

under whichever statutory provision 

provides the greater rights to employees. 

When an employer violates both FMLA 

and a discrimination law, an employee 

may be able to recover under either or 

both statutes (double relief may not be 

awarded for the same loss; when 

remedies coincide a claimant may be 

allowed to utilize whichever avenue of 

relief is desired (Laffey v. Northwest 

Airlines, Inc., 567 F.2d 429, 445 (D.C. 

Cir. 1976), cert. denied, 434 U.S. 1086 

(1978))). 

(b) If an employee is a qualified 

individual with a disability within the 

meaning of the Americans with 

Disabilities Act (ADA), the employer 

must make reasonable accommodations, 

etc., barring undue hardship, in 

accordance with the ADA. At the same 

time, the employer must afford an 

employee his or her FMLA rights. 

ADA’s ‘‘disability’’ and FMLA’s 

‘‘serious health condition’’ are different 

concepts, and must be analyzed 

separately. FMLA entitles eligible 

employees to 12 weeks of leave in any 

12-month period, whereas the ADA 

allows an indeterminate amount of 

leave, barring undue hardship, as a 

reasonable accommodation. FMLA 

requires employers to maintain 

employees’ group health plan coverage 

during FMLA leave on the same 

conditions as coverage would have been 

provided if the employee had been 

continuously employed during the leave 

period, whereas ADA does not require 

maintenance of health insurance unless 

other employees receive health 

insurance during leave under the same 

circumstances. 

(c)(1) A reasonable accommodation 

under the ADA might be accomplished 

by providing an individual with a 

disability with a part-time job with no 

health benefits, assuming the employer 

did not ordinarily provide health 

insurance for part-time employees. 

However, FMLA would permit an 

employee to work a reduced leave 

schedule until the equivalent of 12 

workweeks of leave were used, with 

group health benefits maintained during 

this period. FMLA permits an employer 

to temporarily transfer an employee 

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who is taking leave intermittently or on 

a reduced leave schedule for planned 

medical treatment to an alternative 

position, whereas the ADA allows an 

accommodation of reassignment to an 

equivalent, vacant position only if the 

employee cannot perform the essential 

functions of the employee’s present 

position and an accommodation is not 

possible in the employee’s present 

position, or an accommodation in the 

employee’s present position would 

cause an undue hardship. The examples 

in the following paragraphs of this 

section demonstrate how the two laws 

would interact with respect to a 

qualified individual with a disability. 

(2) A qualified individual with a 

disability who is also an ‘‘eligible 

employee’’ entitled to FMLA leave 

requests 10 weeks of medical leave as a 

reasonable accommodation, which the 

employer grants because it is not an 

undue hardship. The employer advises 

the employee that the 10 weeks of leave 

is also being designated as FMLA leave 

and will count towards the employee’s 

FMLA leave entitlement. This 

designation does not prevent the parties 

from also treating the leave as a 

reasonable accommodation and 

reinstating the employee into the same 

job, as required by the ADA, rather than 

an equivalent position under FMLA, if 

that is the greater right available to the 

employee. At the same time, the 

employee would be entitled under 

FMLA to have the employer maintain 

group health plan coverage during the 

leave, as that requirement provides the 

greater right to the employee. 

(3) If the same employee needed to 

work part-time (a reduced leave 

schedule) after returning to his or her 

same job, the employee would still be 

entitled under FMLA to have group 

health plan coverage maintained for the 

remainder of the two-week equivalent of 

FMLA leave entitlement, 

notwithstanding an employer policy 

that part-time employees do not receive 

health insurance. This employee would 

be entitled under the ADA to reasonable 

accommodations to enable the employee 

to perform the essential functions of the 

part-time position. In addition, because 

the employee is working a part-time 

schedule as a reasonable 

accommodation, the FMLA’s provision 

for temporary assignment to a different 

alternative position would not apply. 

Once the employee has exhausted his or 

her remaining FMLA leave entitlement 

while working the reduced (part-time) 

schedule, if the employee is a qualified 

individual with a disability, and if the 

employee is unable to return to the same 

full-time position at that time, the 

employee might continue to work parttime as a reasonable accommodation, 

barring undue hardship; the employee 

would then be entitled to only those 

employment benefits ordinarily 

provided by the employer to part-time 

employees. 

(4) At the end of the FMLA leave 

entitlement, an employer is required 

under FMLA to reinstate the employee 

in the same or an equivalent position, 

with equivalent pay and benefits, to that 

which the employee held when leave 

commenced. The employer’s FMLA 

obligations would be satisfied if the 

employer offered the employee an 

equivalent full-time position. If the 

employee were unable to perform the 

essential functions of that equivalent 

position even with reasonable 

accommodation, because of a disability, 

the ADA may require the employer to 

make a reasonable accommodation at 

that time by allowing the employee to 

work part-time or by reassigning the 

employee to a vacant position, barring 

undue hardship. 

(d)(1) If FMLA entitles an employee to 

leave, an employer may not, in lieu of 

FMLA leave entitlement, require an 

employee to take a job with a reasonable 

accommodation. However, ADA may 

require that an employer offer an 

employee the opportunity to take such 

a position. An employer may not change 

the essential functions of the job in 

order to deny FMLA leave. See 

§ 825.220(b). 

(2) An employee may be on a workers’

compensation absence due to an on-thejob injury or illness which also qualifies 

as a serious health condition under 

FMLA. The workers’ compensation 

absence and FMLA leave may run 

concurrently (subject to proper notice 

and designation by the employer). At 

some point the health care provider 

providing medical care pursuant to the 

workers’ compensation injury may 

certify the employee is able to return to 

work in a ‘‘light duty’’ position. If the 

employer offers such a position, the 

employee is permitted but not required 

to accept the position (see § 825.220(d)). 

As a result, the employee may no longer 

qualify for payments from the workers’

compensation benefit plan, but the 

employee is entitled to continue on 

unpaid FMLA leave either until the 

employee is able to return to the same 

or equivalent job the employee left or 

until the 12-week FMLA leave 

entitlement is exhausted. See 

§ 825.207(e). If the employee returning 

from the workers’ compensation injury 

is a qualified individual with a 

disability, he or she will have rights 

under the ADA. 

(e) If an employer requires 

certifications of an employee’s fitness 

for duty to return to work, as permitted 

by FMLA under a uniform policy, it 

must comply with the ADA requirement 

that a fitness for duty physical be jobrelated and consistent with business 

necessity. 

(f) Under Title VII of the Civil Rights 

Act of 1964, as amended by the 

Pregnancy Discrimination Act, an 

employer should provide the same 

benefits for women who are pregnant as 

the employer provides to other 

employees with short-term disabilities. 

Because Title VII does not require 

employees to be employed for a certain 

period of time to be protected, an 

employee employed for less than 12 

months by the employer (and, therefore, 

not an ‘‘eligible’’ employee under 

FMLA) may not be denied maternity 

leave if the employer normally provides 

short-term disability benefits to 

employees with the same tenure who 

are experiencing other short-term 

disabilities. 

(g) Under the Uniformed Services 

Employment and Reemployment Rights 

Act of 1994, 38 U.S.C. 4301–4333 

(USERRA), veterans are entitled to 

receive all rights and benefits of 

employment that they would have 

obtained if they had been continuously 

employed. Therefore, under USERRA, a 

returning service member would be 

eligible for FMLA leave if the months 

and hours that he or she would have 

worked for the civilian employer during 

the period of military service, combined 

with the months employed and the 

hours actually worked, meet the FMLA 

eligibility threshold of 12 months and 

1,250 hours of employment. See 

§ 825.110(b)(2)(i) and .110(c)(2). 

(h) For further information on Federal 

antidiscrimination laws, including Title 

VII and the ADA, individuals are 

encouraged to contact the nearest office 

of the U.S. Equal Employment 

Opportunity Commission. 

Subpart H—Definitions 

§ 825.800 Definitions. 

For purposes of this part: 

Act or FMLA means the Family and 

Medical Leave Act of 1993, Public Law 

103–3 (February 5, 1993), 107 Stat. 6 (29 

U.S.C. 2601 et seq.) 

ADA means the Americans With 

Disabilities Act (42 U.S.C. 12101 et seq.) 

Administrator means the 

Administrator of the Wage and Hour 

Division, Employment Standards 

Administration, U.S. Department of 

Labor, and includes any official of the 

Wage and Hour Division authorized to 

perform any of the functions of the 

Administrator under this part. 

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COBRA means the continuation 

coverage requirements of Title X of the 

Consolidated Omnibus Budget 

Reconciliation Act of 1986, As 

Amended (Pub. L. 99–272, title X, 

section 10002; 100 Stat 227; 29 U.S.C. 

1161–1168). 

Commerce and industry or activity 

affecting commerce mean any activity, 

business, or industry in commerce or in 

which a labor dispute would hinder or 

obstruct commerce or the free flow of 

commerce, and include ‘‘commerce’’

and any ‘‘industry affecting commerce’’

as defined in sections 501(1) and 501(3) 

of the Labor Management Relations Act 

of 1947, 29 U.S.C. 142(1) and (3). 

Continuing treatment by a health care 

provider means any one of the 

following: 

(1) Incapacity and treatment. A 

period of incapacity of more than three 

consecutive calendar days, and any 

subsequent treatment or period of 

incapacity relating to the same 

condition, that also involves: 

(i) Treatment two or more times, 

within a 30-day period unless 

extenuating circumstances exist, by a 

health care provider, by a nurse under 

direct supervision of a health care 

provider, or by a provider of health care 

services (e.g., physical therapist) under 

orders of, or on referral by, a health care 

provider; or 

(ii) 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. 

(2) Pregnancy or prenatal care. Any 

period of incapacity due to pregnancy, 

or for prenatal care. See also § 825.120. 

(3) Chronic conditions. Any period of 

incapacity or treatment for such 

incapacity due to a chronic serious 

health condition. A chronic serious 

health condition is one which: 

(i) Requires periodic visits (defined as 

at least twice a year) for treatment by a 

health care provider, or by a nurse 

under direct supervision of a health care 

provider; 

(ii) Continues over an extended 

period of time (including recurring 

episodes of a single underlying 

condition); and 

(iii) May cause episodic rather than a 

continuing period of incapacity (e.g., 

asthma, diabetes, epilepsy, etc.). 

(4) Permanent or long-term 

conditions. A period of incapacity 

which is permanent or long-term due to 

a condition for which treatment may not 

be effective. The employee or family 

member must be under the continuing 

supervision of, but need not be 

receiving active treatment by, a health 

care provider. Examples include 

Alzheimer’s, a severe stroke, or the 

terminal stages of a disease. 

(5) Conditions requiring multiple 

treatments. Any period of absence to 

receive multiple treatments (including 

any period of recovery therefrom) by a 

health care provider or by a provider of 

health care services under orders of, or 

on referral by, a health care provider, 

for: 

(i) Restorative surgery after an 

accident or other injury; or 

(ii) A condition that would likely 

result in a period of incapacity of more 

than three consecutive calendar days in 

the absence of medical intervention or 

treatment, such as cancer 

(chemotherapy, radiation, etc.), severe 

arthritis (physical therapy), kidney 

disease (dialysis). 

(6) Absences attributable to incapacity 

under paragraphs (2) or (3) of this 

definition qualify for FMLA leave even 

though the employee or the covered 

family member does not receive 

treatment from a health care provider 

during the absence, and even if the 

absence does not last more than three 

consecutive calendar days. For example, 

an employee with asthma may be 

unable to report for work due to the 

onset of an asthma attack or because the 

employee’s health care provider has 

advised the employee to stay home 

when the pollen count exceeds a certain 

level. An employee who is pregnant 

may be unable to report to work because 

of severe morning sickness. 

Eligible employee means: 

(1) An employee who has been 

employed for a total of at least 12 

months by the employer on the date on 

which any FMLA leave is to commence, 

except that an employer need not 

consider any period of previous 

employment that occurred more than 

five years before the date of the most 

recent hiring of the employee, unless: 

(i) The break in service is occasioned 

by the fulfillment of the employee’s 

National Guard or Reserve military 

service obligation (the time served 

performing the military service must be 

also counted in determining whether 

the employee has been employed for at 

least 12 months by the employer, but 

this section does not provide any greater 

entitlement to the employee than would 

be available under the Uniformed 

Services Employment and 

Reemployment Rights Act (USERRA)); 

or 

(ii) A written agreement, including a 

collective bargaining agreement, exists 

concerning the employer’s intention to 

rehire the employee after the break in 

service (e.g., for purposes of the 

employee furthering his or her 

education or for childrearing purposes); 

and 

(2) Who, on the date on which any 

FMLA leave is to commence, has been 

employed for at least 1,250 hours of 

service with such employer during the 

previous 12-month period; and 

(3) Who is employed in any State of 

the United States, the District of 

Columbia or any Territories or 

possession of the United States. 

(4) Excludes any Federal officer or 

employee covered under subchapter V 

of chapter 63 of title 5, United States 

Code. 

(5) Excludes any employee of the 

United States House of Representatives 

or the United States Senate covered by 

the Congressional Accountability Act of 

1995, 2 U.S.C. 1301. 

(6) Excludes any employee who is 

employed at a worksite at which the 

employer employs fewer than 50 

employees if the total number of 

employees employed by that employer 

within 75 miles of that worksite is also 

fewer than 50. 

(7) Excludes any employee employed 

in any country other than the United 

States or any Territory or possession of 

the United States. 

Employ means to suffer or permit to 

work. 

Employee has the meaning given the 

same term as defined in section 3(e) of 

the Fair Labor Standards Act, 29 U.S.C. 

203(e), as follows: 

(1) The term ‘‘employee’’ means any 

individual employed by an employer; 

(2) In the case of an individual 

employed by a public agency, 

‘‘employee’’ means—

(i) Any individual employed by the 

Government of the United States—

(A) As a civilian in the military 

departments (as defined in section 102 

of Title 5, United States Code), 

(B) In any executive agency (as 

defined in section 105 of Title 5, United 

States Code), excluding any Federal 

officer or employee covered under 

subchapter V of chapter 63 of Title 5, 

United States Code, 

(C) In any unit of the legislative or 

judicial branch of the Government 

which has positions in the competitive 

service, excluding any employee of the 

United States House of Representatives 

or the United States Senate who is 

covered by the Congressional 

Accountability Act of 1995, 

(D) In a nonappropriated fund 

instrumentality under the jurisdiction of 

the Armed Forces, or 

(ii) Any individual employed by the 

United States Postal Service or the 

Postal Regulatory Commission; and 

(iii) Any individual employed by a 

State, political subdivision of a State, or 

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an interstate governmental agency, other 

than such an individual—

(A) Who is not subject to the civil 

service laws of the State, political 

subdivision, or agency which employs 

the employee; and 

(B) Who—

(1) Holds a public elective office of 

that State, political subdivision, or 

agency, 

(2) Is selected by the holder of such 

an office to be a member of his personal 

staff, 

(3) Is appointed by such an 

officeholder to serve on a policymaking 

level, 

(4) Is an immediate adviser to such an 

officeholder with respect to the 

constitutional or legal powers of the 

office of such officeholder, or 

(5) Is an employee in the legislative 

branch or legislative body of that State, 

political subdivision, or agency and is 

not employed by the legislative library 

of such State, political subdivision, or 

agency. 

Employee employed in an 

instructional capacity. See the 

definition of Teacher in this section. 

Employer means any person engaged 

in commerce or in an industry or 

activity affecting commerce who 

employs 50 or more employees for each 

working day during each of 20 or more 

calendar workweeks in the current or 

preceding calendar year, and includes—

(1) Any person who acts, directly or 

indirectly, in the interest of an employer 

to any of the employees of such 

employer; 

(2) Any successor in interest of an 

employer; and 

(3) Any public agency. 

Employment benefits means all 

benefits provided or made available to 

employees by an employer, including 

group life insurance, health insurance, 

disability insurance, sick leave, annual 

leave, educational benefits, and 

pensions, regardless of whether such 

benefits are provided by a practice or 

written policy of an employer or 

through an ‘‘employee benefit plan’’ as 

defined in section 3(3) of the Employee 

Retirement Income Security Act of 1974, 

29 U.S.C. 1002(3). The term does not 

include non-employment related 

obligations paid by employees through 

voluntary deductions such as 

supplemental insurance coverage. (See 

§ 825.209(a)). 

FLSA means the Fair Labor Standards 

Act (29 U.S.C. 201 et seq.). 

Group health plan means any plan of, 

or contributed to by, an employer 

(including a self-insured plan) to 

provide health care (directly or 

otherwise) to the employer’s employees, 

former employees, or the families of 

such employees or former employees. 

For purposes of FMLA the term ‘‘group 

health plan’’ shall not include an 

insurance program providing health 

coverage under which employees 

purchase individual policies from 

insurers provided that: 

(1) No contributions are made by the 

employer; 

(2) Participation in the program is 

completely voluntary for employees; 

(3) The sole functions of the employer 

with respect to the program are, without 

endorsing the program, to permit the 

insurer to publicize the program to 

employees, to collect premiums through 

payroll deductions and to remit them to 

the insurer; 

(4) The employer receives no 

consideration in the form of cash or 

otherwise in connection with the 

program, other than reasonable 

compensation, excluding any profit, for 

administrative services actually 

rendered in connection with payroll 

deduction; and, 

(5) The premium charged with respect 

to such coverage does not increase in 

the event the employment relationship 

terminates. 

Health care provider means: 

(1) The Act defines ‘‘health care 

provider’’ as: 

(i) A doctor of medicine or osteopathy 

who is authorized to practice medicine 

or surgery (as appropriate) by the State 

in which the doctor practices; or 

(ii) Any other person determined by 

the Secretary to be capable of providing 

health care services. 

(2) Others ‘‘capable of providing 

health care services’’ include only: 

(i) Podiatrists, dentists, clinical 

psychologists, optometrists, and 

chiropractors (limited to treatment 

consisting of manual manipulation of 

the spine to correct a subluxation as 

demonstrated by X-ray to exist) 

authorized to practice in the State and 

performing within the scope of their 

practice as defined under State law; 

(ii) Nurse practitioners, nursemidwives, clinical social workers and 

physician assistants who are authorized 

to practice under State law and who are 

performing within the scope of their 

practice as defined under State law; 

(iii) Christian Science Practitioners 

listed with the First Church of Christ, 

Scientist in Boston, Massachusetts. 

Where an employee or family member is 

receiving treatment from a Christian 

Science practitioner, an employee may 

not object to any requirement from an 

employer that the employee or family 

member submit to examination (though 

not treatment) to obtain a second or 

third certification from a health care 

provider other than a Christian Science 

practitioner except as otherwise 

provided under applicable State or local 

law or collective bargaining agreement. 

(iv) Any health care provider from 

whom an employer or the employer’s 

group health plan’s benefits manager 

will accept certification of the existence 

of a serious health condition to 

substantiate a claim for benefits; and 

(v) A health care provider listed above 

who practices in a country other than 

the United States, who is authorized to 

practice in accordance with the law of 

that country, and who is performing 

within the scope of his or her practice 

as defined under such law. 

(3) The phrase ‘‘authorized to practice 

in the State’’ as used in this section 

means that the provider must be 

authorized to diagnose and treat 

physical or mental health conditions. 

Incapable of self-care means that the 

individual requires active assistance or 

supervision to provide daily self-care in 

several of the ‘‘activities of daily living’’

(ADLs) or ‘‘instrumental activities of 

daily living’’ (IADLs). Activities of daily 

living include adaptive activities such 

as caring appropriately for one’s 

grooming and hygiene, bathing, dressing 

and eating. Instrumental activities of 

daily living include cooking, cleaning, 

shopping, taking public transportation, 

paying bills, maintaining a residence, 

using telephones and directories, using 

a post office, etc. 

Instructional employee: See the 

definition of Teacher in this section. 

Intermittent leave means leave taken 

in separate periods of time due to a 

single illness or injury, rather than for 

one continuous period of time, and may 

include leave of periods from an hour or 

more to several weeks. Examples of 

intermittent leave would include leave 

taken on an occasional basis for medical 

appointments, or leave taken several 

days at a time spread over a period of 

six months, such as for chemotherapy. 

Mental disability: See the definition of 

Physical or mental disability in this 

section. 

Parent means a biological, adoptive, 

step or foster father or mother, or any 

other individual who stood in loco 

parentis to the employee when the 

employee was a son or daughter as 

defined below. This term does not 

include parents ‘‘in law.’’

Person means an individual, 

partnership, association, corporation, 

business trust, legal representative, or 

any organized group of persons, and 

includes a public agency for purposes of 

this part. 

Physical or mental disability means a 

physical or mental impairment that 

substantially limits one or more of the 

major life activities of an individual. 

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Regulations at 29 CFR part 1630.2(h), (i), 

and (j), issued by the Equal Employment 

Opportunity Commission under the 

Americans with Disabilities Act (ADA), 

42 U.S.C. 12101 et seq., define these 

terms. 

Public agency means the government 

of the United States; the government of 

a State or political subdivision thereof; 

any agency of the United States 

(including the United States Postal 

Service and Postal Regulatory 

Commission), a State, or a political 

subdivision of a State, or any interstate 

governmental agency. Under section 

101(5)(B) of the Act, a public agency is 

considered to be a ‘‘person’’ engaged in 

commerce or in an industry or activity 

affecting commerce within the meaning 

of the Act. 

Reduced leave schedule means a 

leave schedule that reduces the usual 

number of hours per workweek, or 

hours per workday, of an employee. 

Secretary means the Secretary of 

Labor or authorized representative. 

Serious health condition means an 

illness, injury, impairment or physical 

or mental condition that involves 

inpatient care as defined in § 825.114 or 

continuing treatment by a health care 

provider as defined in § 825.115. 

Conditions for which cosmetic 

treatments are administered (such as 

most treatments for acne or plastic 

surgery) are not ‘‘serious health 

conditions’’ unless inpatient hospital 

care is required or unless complications 

develop. Restorative dental or plastic 

surgery after an injury or removal of 

cancerous growths are serious health 

conditions provided all the other 

conditions of this regulation are met. 

Mental illness resulting from stress, or 

allergies may be serious health 

conditions, but only if all the conditions 

of § 825.113 are met. 

Son or daughter means a biological, 

adopted, or foster child, a stepchild, a 

legal ward, or a child of a person 

standing in loco parentis, who is either 

under age 18, or age 18 or older and 

‘‘incapable of self-care because of a 

mental or physical disability’’ at the 

time that FMLA leave is to commence. 

Spouse means a husband or wife as 

defined or recognized under State law 

for purposes of marriage in the State 

where the employee resides, including 

common law marriage in States where it 

is recognized. 

State means any State of the United 

States or the District of Columbia or any 

Territory or possession of the United 

States. 

Teacher (or employee employed in an 

instructional capacity, or instructional 

employee) means an employee 

employed principally in an 

instructional capacity by an educational 

agency or school whose principal 

function is to teach and instruct 

students in a class, a small group, or an 

individual setting, and includes athletic 

coaches, driving instructors, and special 

education assistants such as signers for 

the hearing impaired. The term does not 

include teacher assistants or aides who 

do not have as their principal function 

actual teaching or instructing, nor 

auxiliary personnel such as counselors, 

psychologists, curriculum specialists, 

cafeteria workers, maintenance workers, 

bus drivers, or other primarily 

noninstructional employees. 

Appendix A to Part 825—Index 

[Reserved] 

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