[Federal Register Volume 85, Number 138 (Friday, July 17, 2020)]
[Proposed Rules]
[Pages 43513-43517]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14873]
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DEPARTMENT OF LABOR
Wage and Hour Division
29 CFR Part 825
RIN 1235-AA30
Family and Medical Leave Act of 1993
AGENCY: Wage and Hour Division, U.S. Department of Labor.
ACTION: Request for information.
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SUMMARY: The Department of Labor (Department) is seeking information
from the public regarding the regulations implementing the Family and
Medical Leave Act of 1993 (FMLA or the Act). The Department is
publishing this Request for Information (RFI) to gather information
concerning the effectiveness of the current regulations and to aid the
Department in its administration of the FMLA. The information provided
will help the Department identify topics for which additional
compliance assistance could be helpful, including opportunities for
outreach to ensure employers are aware of their obligations under the
law and employees are informed about their rights and responsibilities
in using FMLA leave.
DATES: Submit written comments on or before September 15, 2020.
ADDRESSES: To facilitate the receipt and processing of written comments
on this RFI, the Department encourages interested persons to submit
their comments electronically. You may submit comments, identified by
Regulatory Information Number (RIN) 1235-AA30, by either of the
following methods:
Electronic Comments: Follow the instructions for submitting
comments on the Federal eRulemaking Portal http://www.regulations.gov.
Mail: Address written submissions to Amy DeBisschop, Director,
Division of Regulations, Legislation, and Interpretation, Wage and Hour
Division, U.S. Department of Labor, Room S-3502, 200 Constitution
Avenue NW, Washington, DC 20210.
Instructions: This RFI is available through the Federal Register
and the http://www.regulations.gov website. You may also access this
document via the Wage and Hour Division's (WHD) website at http://www.dol.gov/whd/. All comment submissions must include the agency name
and Regulatory Information Number (RIN 1235-AA30) for this RFI.
Response to this RFI is voluntary and respondents need not reply to all
questions listed below. The Department requests that no business
proprietary information, copyrighted information, individual medical
information, or personally identifiable information be submitted in
response to this RFI. Submit only one copy of your comment by only one
method (e.g., persons submitting comments electronically are encouraged
not to submit paper copies). Anyone who submits a comment (including
duplicate comments) should understand and expect that the comment will
become a matter of public record and will be posted without change to
http://www.regulations.gov, including any personal or medical
information provided. All comments must be received by 11:59 p.m. on
the date indicated for consideration in this RFI; comments received
after the comment period closes will not be considered. Commenters
should transmit comments
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early to ensure timely receipt prior to the close of the comment
period. Electronic submission via http://www.regulations.gov enables
prompt receipt of comments submitted as the Department continues to
experience delays in the receipt of mail in our area. For access to the
docket to read background documents or comments, go to the Federal
eRulemaking Portal at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Amy DeBisschop, Director, Division of
Regulations, Legislation, and Interpretation, Wage and Hour Division,
U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW,
Washington, DC 20210; telephone: (202) 693-0406 (this is not a toll-
free number). Copies of this RFI may be obtained in alternative formats
(Large Print, braille, Audio Tape or Disc), upon request, by calling
(202) 693-0675 (this is not a toll-free number). TTY/TDD callers may
dial toll-free 1 (877) 889-5627 to obtain information or request
materials in alternative formats.
Questions concerning enforcement of the agency's regulations may be
directed to the nearest WHD district office. Locate the nearest office
by calling the WHD'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 visit WHD's
website at http://www.dol.gov/whd/america2.htm for a nationwide listing
of WHD district and area offices.
SUPPLEMENTARY INFORMATION:
I. Background
Administering the FMLA while responding to the COVID-19 public
health emergency is an ongoing priority for the Department. Workplace
flexibility ensured by job-protected leave is essential to American
prosperity. Workers are more productive and more likely to remain
employed if they do not have to choose between taking care of
themselves or their loved ones and keeping their jobs. Likewise,
businesses attract and retain the best talent when they give their
workers flexibility that encourages productivity and retention.
In keeping with these principles, the FMLA, 29 U.S.C. 2601 et seq.,
entitles eligible employees of covered employers to take up to a total
of 12 workweeks of job-protected, unpaid leave, or to substitute
accrued paid leave, during a 12-month period for the birth of the
employee's child; for the placement of a child with the employee for
adoption or foster care; to care for the newborn or newly-placed child;
to care for the employee's spouse, parent, son, or daughter with a
serious health condition; when the employee is unable to work due to
the employee's own serious health condition; or for any qualifying
exigency arising out of the fact that the employee's spouse, son,
daughter, or parent is a military member on covered active duty. See 29
U.S.C. 2612(a)(1). An eligible employee may also take up to 26
workweeks of FMLA leave during a ``single 12-month period'' to care for
a covered servicemember with a serious injury or illness when the
employee is the spouse, son, daughter, parent, or next of kin of the
servicemember. See 29 U.S.C. 2612(a)(3).
FMLA leave may be taken in a block or, under certain circumstances,
intermittently or on a reduced leave schedule. See 29 U.S.C. 2612(b).
In addition to providing job-protected leave, employers covered by the
law must maintain for the employee any preexisting group health
coverage during the leave period and, once the leave period has
concluded, reinstate the employee to the same or an equivalent job with
equivalent employment benefits, pay, and other terms and conditions of
employment. See 29 U.S.C. 2614.
The Department issued an initial interim final rule after the FMLA
became law in 1993, 58 FR 31794, and issued final FMLA regulations in
1995, 60 FR 2180. The Department published significant revisions to the
FMLA regulations in 2008, 73 FR 67934, which were informed, in part, by
a 2006 Request for Information, 71 FR 69504. The Department next
changed the FMLA regulations in 2013 to implement statutory amendments
affecting military family leave provisions and airline flight crew
eligibility. 78 FR 8834. The FMLA regulations were last updated in 2015
to update the definition of spouse. 80 FR 9989.\1\
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\1\ Additionally, the Department has regularly sought employer
and employee feedback on the administration and use of the FMLA
through surveys designed to understand the range of perspectives on
the FMLA in the U.S. The Department has commissioned four series of
these surveys; the fourth is currently underway. Information about
the Wave 4 FMLA surveys may be found at https://www.dol.gov/asp/evaluation/currentstudies/Family-and-Medical-Leave-Act-Wave-4-Surveys.htm. Further, the results from the prior Wave 3 FMLA survey
(referred to as the 2012 FMLA survey elsewhere in this document) may
be found at https://www.dol.gov/asp/evaluation/completed-studies/Family_Medical_Leave_Act_Survey/TECHNICAL_REPORT_family_medical_leave_act_survey.pdf.
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On August 5, 2019, the Department published a Federal Register
notice seeking public comment on proposed revisions to its optional-use
FMLA forms. 84 FR 38061. The Department created forms--WH-380-E, WH-
380-F, WH-381, WH-382, WH-384, WH-385, and WH-385-V--to assist
employers and employees in meeting their FMLA notification and
certification obligations. The Department's proposed revisions to the
forms were based on feedback from employees, employers, and health care
professionals and are designed to reduce administrative burden,
increase compliance with regulatory requirements, and improve customer
service. We received 139 comments from employers, industry
associations, individual employees, worker advocacy groups, law firms,
and other interested members of the public during the notice and
comment process and made additional revisions to incorporate this
feedback. Additional revisions to incorporate that feedback are in the
process of being finalized.
The Department notes that the new Families First Coronavirus
Response Act (FFCRA), Public Law 116-127 (Mar. 18, 2020), which was
passed in response to the public health emergency caused by COVID-19
and ensures that workers are not forced to choose between their
paychecks and the public health measures needed to combat the
coronavirus, includes temporary amendments to the FMLA.\2\ The amended
FMLA protections provided under the FFCRA are not addressed in this
Request for Information, and the Department does not seek comment on
them here. The most up-to-date information about the FFCRA is available
at https://www.dol.gov/agencies/whd/ffcra.
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\2\ The FFCRA amended the FMLA to permit certain employees to
take up to ten weeks of paid expanded family and medical leave if
the employee is unable to work because the employee is caring for
his or her son or daughter whose school or place of care is closed
or whose child care provider is unavailable for reasons related to
COVID-19. This expanded family and medical leave entitlement, which
became effective on April 1, 2020, will expire on December 31, 2020.
The Department's regulations implementing paid leave under the FFCRA
appear at 29 CFR part 826; all references in this document to FMLA
regulations refer to those that appear at 29 CFR part 825.
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II. Request for Public Comment
The Department is aware that its regulations need to be regularly
reviewed to explore how such regulations can remain current with
workplace and demographic changes. Further, the Department understands
the need for compliance assistance, in particular in the form of
written informational materials that provide the public with up-to-date
information about the protections and requirements of the law in plain
language.
Extensive compliance assistance regarding the FMLA is currently
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available. In particular, the Department's FMLA web pages, which
received more than 5 million views over the last year, contain a wealth
of material including Frequently Asked Questions, Fact Sheets, Employee
Guides, interactive online tools, and a comprehensive Employer's Guide
developed for human resource managers and other leave administrators.
Additionally, while the requirements of the FMLA are set by statute and
regulations, as part of the administration of the Act, interested
parties may seek an opinion (i.e., an official written explanation) of
what the FMLA requires in fact-specific situations. Opinion letters
serve as an important means by which the public can develop a clearer
understanding of what FMLA compliance entails. The Department has
issued seven opinion letters \3\ on FMLA-related topics since 2018.
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\3\ FMLA2020-1-A (Jan. 7, 2020), available at https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/2020_01_07_1A_FMLA.pdf; FMLA2019-3-A (Sept. 10, 2019), available at
https://www.dol.gov/whd/opinion/FMLA/2019/2019_09_10_3A_FMLA.pdf;
FMLA2019-2-A (Aug. 8, 2019), available at https://www.dol.gov/whd/opinion/FMLA/2019/2019_08_08_2A_FMLA.pdf; FMLA2019-1-A (Mar. 14,
2019), available at https://www.dol.gov/whd/opinion/FMLA/2019/2019_03_14_1A_FMLA.pdf; FMLA2018-2-A (Aug. 28, 2018) available at
https://www.dol.gov/whd/opinion/FMLA/2018/2018_08_28_2A_FMLA.pdf;
FMLA2018-1-A (Aug. 28, 2018), available at https://www.dol.gov/whd/opinion/FMLA/2018/2018_08_28_1A_FMLA.pdf; FLSA2018-19 (Apr. 12,
2018), available at https://www.dol.gov/whd/opinion/FLSA/2018/2018_04_12_02_FLSA.pdf.
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Nevertheless, the results of employee and employer surveys continue
to show an ongoing need for education and awareness in the
administration and use of FMLA leave. Information from the public on
what is and is not working well in the administration of the FMLA can
further inform and guide the Department in issuing modernized tools to
aid in understanding and applying the FMLA. As such, the Department
seeks input from employers and employees on the current FMLA
regulations, specifically:
What would employees like to see changed in the FMLA
regulations to better effectuate the rights and obligations under the
FMLA?
What would employers like to see changed in the FMLA
regulations to better effectuate the rights and obligations under the
FMLA?
The Department invites interested parties who have knowledge of, or
experience with, the FMLA to submit comments, information, and data to
provide a foundation for examining the effectiveness of the current
regulations in meeting the statutory objectives of the FMLA. The
Department suggests the following questions to frame the responses.
These questions are not intended to be an exclusive list of issues for
which the Departments seeks information.
1. A serious health condition is defined as an illness, injury,
impairment, or physical or mental condition that involves either
inpatient care or continuing treatment by a health care provider. See
29 U.S.C. 2611(11); 29 CFR 825.113-.115. The regulations outline
several types of serious health conditions involving continuing
treatment by a health care provider: (1) Incapacity and treatment, with
specific definitions and time-frames for the incapacity and the
treatment; (2) pregnancy or prenatal care; (3) chronic conditions,
which require, among other things, at least two visits for treatment by
a health care provider per year; (4) permanent or long-term conditions;
and (5) conditions that require multiple treatments. See 29 CFR
825.115. Several opinion letters issued by the Wage and Hour Division
address questions related to the definition of serious health
condition. For example, FMLA2018-2-A, issued on August 28, 2018,
clarified that organ donation can qualify as a serious health condition
when it involves either inpatient care or continuing treatment as
defined by the FMLA regulations. While information provided in the 2012
FMLA survey indicates that most employers report that complying with
the FMLA imposes minimal burden on their operations, the Department is
aware that the medical certification process used to support the
existence of a serious health condition can, at times, present
challenges to both employers and employees.
What, if any, challenges have employers and employees experienced
in applying the regulatory definition of a serious health condition?
For example, what, if any, conditions or circumstances have employers
encountered that meet the regulatory definition of a ``serious health
condition'' but that they believe the statute does not cover? What, if
any, difficulties have employers experienced in determining when an
employee has a chronic condition that qualifies as a serious health
condition under the regulations? Conversely, what, if any, conditions
or circumstances have employees experienced that they believe the
statute covers, but which their employer determined did not meet the
regulatory definition of ``serious health condition''? What, if any,
difficulties have employees experienced in establishing that a chronic
condition qualifies as a serious health condition under the
regulations? The Department welcomes information that will further its
understanding of FMLA serious health conditions so it can better
effectuate the purposes of the Act.
2. An employee may take FMLA leave on an intermittent basis (i.e.,
taking leave in separate blocks of time for a single qualifying reason)
or on a reduced leave schedule (i.e., reducing the employee's usual
weekly or daily work schedule) due to his or her own serious health
condition, to care for an immediate family member who has a serious
health condition, or to care for a covered servicemember with a serious
illness or injury when such leave is medically necessary. See 29 U.S.C.
2612(b); 29 CFR 825.202-.205. Information provided in the 2012 FMLA
employer survey indicated that unscheduled leave, particularly
unplanned intermittent or episodic leave, was sometimes disruptive to
the workplace.
What, if any, specific challenges or impacts do employers and
employees experience when an employee takes FMLA leave on an
intermittent basis or on a reduced leave schedule? For example, what,
if any, specific challenges do employers experience when the timing or
need for intermittent leave is unforeseeable? Similarly, what, if any,
challenges do employees seeking or taking intermittent leave or using a
reduced leave schedule experience? For example, do employees find it
difficult to request and use intermittent leave in their workplaces?
The Department also seeks information from employers and employees on
best practices and suggestions to improve implementation of these
intermittent leave provisions. The Department welcomes information that
will further its understanding of FMLA leave usage so it can better
effectuate the purposes of the Act.
3. The requirements regarding the notice that an employee must
provide to an employer of his or her need for FMLA leave are set out at
29 U.S.C. 2612(e) and 29 CFR 825.302-.304. An employee seeking to use
FMLA leave is required to provide 30-days advance notice of the need to
take FMLA leave when the need is foreseeable and such notice is
practicable. If leave is foreseeable fewer than 30 days in advance, the
employee must notify the employer as soon as practicable--generally,
either the same or next business day. When the need for leave is not
foreseeable, the employee must notify the employer as soon as
practicable under the facts and circumstances of the particular case.
Absent unusual circumstances, an employee must comply with the
employer's usual and customary notice
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and procedural requirements for requesting leave. An employee must
provide sufficient information for an employer to reasonably determine
whether the FMLA may apply to the leave request. When an employee seeks
leave for an FMLA-qualifying reason for the first time, the employee
need not expressly assert FMLA rights or even mention the FMLA. When an
employee seeks leave due to an FMLA-qualifying reason for which the
employer has previously provided the employee FMLA-protected leave,
however, the employee must specifically reference either the qualifying
reason for the leave or the need for FMLA leave.
What, if any, specific challenges do employers and employees
experience when employees request leave or notify their employers of
their need for leave? For example, do employees convey sufficient
information to notify employers that the employee may have an FMLA-
qualifying reason for leave or that the employee is requesting FMLA
leave? Similarly, are employees aware of and able to comply with their
employers' specific procedural requirements for providing such notice?
Are they aware of the specific information they need to provide? The
Department welcomes suggestions of how to better assist employers and
employees in understanding their rights and obligations under the FMLA
regulations. The Department also specifically seeks input on additional
tools the Department could provide to facilitate FMLA compliance.
4. An employer may require an employee to provide a certification
issued by a health care provider to support the need for leave for a
serious health condition of the employee or the employee's immediate
family member. See 29 U.S.C. 2613; 29 CFR 825.305-.308. The employer
must allow the employee at least 15 calendar days to obtain the medical
certification. If the employer determines the certification is
incomplete or insufficient, the employer must advise the employee in
writing of the additional information needed and allow the employee a
reasonable opportunity to cure the deficiency. See 29 CFR 825.305.
As noted above, the Department recently published in the Federal
Register proposed revisions to the optional-use forms employers and
employees may use to meet their FMLA notification and certification
obligations. The Department is interested in understanding what, if
any, challenges employers and employees have experienced with the
medical certification process that are not addressed by those proposed
revisions. For example, what, if any, challenges have employers
encountered in determining whether a certification establishes that the
employee or employee's immediate family member has a serious health
condition under the FMLA and the amount of leave needed? Similarly,
what, if any, challenges have employees encountered in obtaining a
certification that contains sufficient information to establish the
existence of a serious health condition and the amount of leave needed?
The Department welcomes suggestions regarding strategies to address
challenges with the certification process.
5. As indicated above, the Department has issued seven opinion
letters on FMLA topics since 2018. The first, FLSA2018-19, issued on
April 12, 2018, concerned the compensability of frequent 15-minute rest
breaks under the Fair Labor Standards Act when the breaks are necessary
due to a serious health condition under the FMLA and concluded that
such short periods of FMLA-protected leave may be unpaid. The letter
noted, however, that employees are entitled to compensation for rest
periods of short duration on the same basis as co-workers who take non-
FMLA leave breaks during a work shift. FMLA2018-1-A, issued on August
28, 2018, addressed an employer's no-fault attendance policy which
effectively froze, throughout the duration of an employee's FMLA leave,
the number of attendance points that the employee accrued prior to
taking his or her leave. The letter concluded that such a policy does
not violate the FMLA, provided it is applied in a nondiscriminatory
manner. As noted above, FMLA2018-2-A, also issued on August 28, 2018,
stated that organ donation can be a qualifying serious health condition
if it requires inpatient care or continuing treatment as defined by the
FMLA regulations.
Two letters addressed designation of FMLA leave. FMLA2019-1-A,
issued on March 14, 2019, stated that an employer may not delay
designating an employee's leave as FMLA leave if the circumstances
qualify for FMLA leave, even if the employee prefers to delay the
designation. The letter also stated that, while nothing prevents an
employer from providing more generous leave policies than those
established in the FMLA, doing so does not expand an employee's FMLA
entitlement. Therefore, an employer may not designate more than 12
weeks of leave as FMLA leave. FMLA2019-3-A, issued on September 10,
2019, similarly stated that an employer may not delay designating an
employee's leave as FMLA leave if the circumstances qualify for FMLA
leave, in this case, even if a collective bargaining agreement provides
that an employee may exhaust paid leave before using unpaid FMLA leave.
However, the letter noted that the paid leave could be substituted
(i.e., run concurrently) with the FMLA leave. This letter also stated
that if an employer provides for the accrual of seniority when
employees use paid leave, it must also permit employees to accrue
seniority when they substitute FMLA leave for paid leave. FMLA2019-2-A,
issued on August 8, 2019, concluded that a parent's need to attend an
Individualized Education Plan meeting addressing the educational and
special medical needs of his or her child who has a serious health
condition is a qualifying reason for taking intermittent FMLA leave.
FMLA2020-1-A, issued on January 7, 2020, addressed whether a combined
general health district must count the employees of the County in which
it is located for purposes of determining employee eligibility to take
FMLA leave.
The Department requests comments about whether it would be helpful
to provide additional guidance regarding the interpretations contained
in any of these opinion letters through the regulatory process.
6. Please provide specific information and any available data
regarding other specific challenges that employers experience in
administering FMLA leave or that employees experience in taking or
attempting to take FMLA leave. The Department welcomes any information
on the administration and effectiveness of the current regulations and
suggestions regarding specific strategies to address such challenges.
The Department also welcomes information concerning best practices
employees and employers may have experienced in using or administering
the FMLA.
III. Conclusion
The Department invites interested parties to submit comments and
data during the public comment period and welcomes any pertinent
information and data that will provide a basis for analyzing the
effectiveness of the current regulations in meeting the statutory
objectives of the FMLA.
List of Subjects in 29 CFR Part 825
Administrative practice and procedure, Airmen, Employee benefit
plans, Health, Health insurance, Labor management relations, Maternal
and child health, Penalties, Reporting and recordkeeping requirements,
Teachers.
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Signed at Washington, DC, this 6th day of July, 2020.
Cheryl M. Stanton,
Administrator, Wage and Hour Division.
[FR Doc. 2020-14873 Filed 7-16-20; 8:45 am]
BILLING CODE 4510-27-P