[Federal Register Volume 76, Number 188 (Wednesday, September 28, 2011)]
[Notices]
[Pages 60086-60090]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-24873]


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DEPARTMENT OF LABOR

Wage and Hour Division


Proposed Extension of the Approval of Information Collection 
Requirements

AGENCY: Wage and Hour Division, Department of Labor.

ACTION: Notice.

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SUMMARY: The Department of Labor, as part of its continuing effort to 
reduce paperwork and respondent burden, conducts a preclearance 
consultation program to provide the general public and Federal agencies 
with an opportunity to comment on proposed and/or continuing 
collections of information in accordance with the Paperwork Reduction 
Act of 1995 (PRA95). 44 U.S.C. 3506(c)(2)(A). This program helps to 
ensure that requested data can be provided in a desired format, 
reporting burden (time and financial resources) is minimized, 
collection instruments are clearly understood, and the impact of 
collection requirements on respondents can be properly assessed. 
Currently, the Wage and Hour Division is soliciting comments concerning 
its proposal to extend Office of Management and Budget (OMB) approval 
of the Information Collection: The Family and Medical Leave Act 
Optional Forms. A copy of the proposed information request can be 
obtained by contacting the office listed below in the FOR FURTHER 
INFORMATION CONTACT section of this Notice.

DATES: Written comments must be submitted to the office listed in the 
ADDRESSES section below on or before November 28, 2011.

ADDRESSES: You may submit comments identified by Control Number 1235-
0003, by either one of the following methods: E-mail: 
[email protected]; Mail, Hand Delivery, Courier: 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: Please submit one copy of your 
comments by only one method. All submissions received must include the 
agency name and Control Number identified above for this information 
collection. Because we continue to experience delays in receiving mail 
in the Washington, DC area, commenters are strongly encouraged to 
transmit their comments electronically via e-mail or to submit them by 
mail early. Comments, including any personal information provided, 
become a matter of public record. They will also be summarized and/or 
included in the request for OMB approval of the information collection 
request.

FOR FURTHER INFORMATION CONTACT: Mary Ziegler, Director, Division of 
Regulations, Legislation, and Interpretation, Wage and Hour, 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 notice may be obtained in alternative formats 
(Large Print, Braille, Audio Tape, or Disc), upon request, by calling 
(202) 693-0023 (not a toll-free number). TTY/TTD callers may dial toll-
free (877) 889-5627 to obtain information to request materials in 
alternative formats.

SUPPLEMENTARY INFORMATION:
    I. Background: The Family and Medical Leave Act of 1993 (FMLA), 29 
U.S.C. 2601, et seq., requires private sector employers who employ 50 
or more employees, all public and private elementary schools, and all 
public agencies to provide up to 12 weeks of unpaid, job-protected 
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; 
because of a serious health condition that makes the employee unable to 
perform the functions of the employee's job; and to address qualifying 
exigencies arising out of the deployment of the employee's spouse, son, 
daughter, or parent to covered active duty in the military), and up to 
26 weeks of unpaid, job protected leave during a single 12-month period 
to care for a covered servicemember with a serious injury or illness 
who is the spouse, son, daughter, parent, or next of kin to the 
employee. FMLA section 404 requires the Secretary of Labor to prescribe 
such regulations as necessary to enforce this Act. 29 U.S.C. 2654.

[[Page 60087]]

    WHD Publication 1420 allows employers to satisfy the general notice 
requirement. See Sec.  825.300(a).
    A. Employee Notice of Need for FMLA Leave [29 U.S.C. 2612(e); 29 
CFR 825.100(d), -.301(b), -.302, -.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 or 
planned medical treatment for a serious injury or illness of a 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, or a medical emergency, notice must 
be given as soon as practicable under the facts and circumstances of 
the particular case. When an employee seeks leave for the first time 
for an FMLA-qualifying reason, the employee need not expressly assert 
rights under the FMLA or even mention the FMLA. The employee must, 
however, provide sufficient information that indicates that leave is 
potentially FMLA-qualifying and the timing and anticipated duration of 
the absence. Such information may include that a condition renders the 
employee unable to perform the functions of the job, or if the leave is 
to care for a family member, that the condition renders the family 
member unable to perform daily activities or, that the family member is 
a covered servicemember with a serious injury or illness, and whether 
the employee or the employee's family member is under the continuing 
care of a health care provider. Sufficient information for leave due to 
a qualifying family member's call (or impending call) to active duty 
status may include that the military member is on or has been called to 
covered active duty and that the requested leave is for one of the 
categories of qualify exigency leave. 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 and Rights and 
Responsibilities Notice [29 CFR 825.219-.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 reason, the employer 
must notify the employee--within five business days, absent extenuating 
circumstances--of the employee's eligibility to take FMLA leave and any 
additional requirements for taking such leave. The eligibility notice 
must provide information regarding the employee's eligibility for FMLA 
leave and, if the employee is determined not to meet the eligibility 
criteria, provide at least one reason why the employee is not eligible. 
The rights and responsibilities notice must detail the specific rights 
and responsibilities of the employee and explain any consequences of a 
failure to meet these responsibilities. If an employee provides notices 
of a subsequent need for FMLA leave during the applicable 12-month 
period due to a different FMLA-qualifying reason, the employer does not 
have to provide an additional eligibility notice if the employee's 
eligibility status has not changed. If the employee's eligibility 
status has changed, then the employer must notify the employee of the 
change in eligibility status within five business days, absent 
extenuating circumstances. The rights and responsibilities notice must 
be provided to the employee each time the eligibility notice is 
provided to the employee. Form WH-381 allows an employer to satisfy the 
regulatory requirement to provide employees with specific information 
concerning eligibility status and with written notice detailing 
specific rights as well as expectations and obligations of the employee 
and explaining any consequences of a failure to meet these obligations. 
See Sec.  825.300(b) and (c).
    C. Medical Certification and Recertification [29 U.S.C. 2613, 
2614(c)(3); 29 CFR 825.100(d), -.305-.308]. An employer may require 
that an employee's leave 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 or to care for the 
employee's spouse, son, daughter, or parent with a serious health 
condition, be supported by a certification issued by the health care 
provider of the eligible employee or of the employee's family member. 
In addition, an employer may 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 unless the employee is not able to do so despite his or 
her diligent good faith efforts. 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 and must provide the employee 
seven calendar days (unless not practicable under the particular 
circumstances despite the employee's diligent good faith efforts) to 
cure any identified deficiency. 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 identified deficiencies. An employer, at its 
own expense and subject to certain limitations, also may require an 
employee to obtain a second and third medical opinion. Form WH-380-E 
allows an employee requesting FMLA-leave for his or her own serious 
health condition to satisfy the statutory requirement to furnish, upon 
the employer's request, appropriate certification (including a second 
or third opinion and recertification) to support the need for leave for 
the employee's own serious health condition. See Sec.  825.305(a). Form 
WH-380-F allows an employee requesting FMLA-leave for a family member's 
serious health condition to satisfy the statutory requirement to 
furnish, upon the employer's request, appropriate certification 
(including a second or third opinion and recertification) to support 
the need for leave for the family member's serious health condition. 
See Sec.  825.305(a).
    D. Certification for Leave for a Qualifying Exigency. [29 CFR 
825.309] An employer may require an employee who requests FMLA-leave 
due to a qualifying exigency to certify the need for leave. In 
addition, the first time an employee requests leave for a qualifying 
exigency related to a qualifying family member's active duty status, an 
employer may require the employee to provide a copy of the military 
member's active duty orders or other documentation issued by the 
military that indicates the military member is on covered active duty. 
Optional Form WH-384 allows an employee requesting FMLA leave based on 
a qualifying exigency to satisfy the statutory requirement to furnish, 
upon the employer's request, appropriate certification to support leave 
for a qualifying exigency.
    E. Certification for Leave to Care for Covered Servicemember. [29 
CFR 825.310] An employee who requests FMLA-leave to care for a covered 
servicemember may be required by his or her employer to certify the 
need for leave. Optional Form WH-385 currently allows an employee 
requesting FMLA leave based on an active duty covered servicemember's 
serious injury or illness to satisfy the statutory requirement to 
furnish, upon the employer's request, a medical

[[Page 60088]]

certification from an authorized health care provider. An employer must 
accept as sufficient certification of leave to care for a covered 
servicemember an invitational travel order or invitational travel 
authorization (ITO or ITA) issued to the employee or to another family 
member in lieu of optional Form WH-385 or the employer's own form.
    F. Notice to Employees of FMLA Designation [29 CFR Sec. Sec.  
825.300(c) -.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 upon request by the employee but 
not more often than once every 30 days if leave is taken during the 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. In addition, if the employer will require the 
employee to submit a fitness-for-duty certification, the employer must 
provide notice of the requirement with the designation notice. Form WH-
382 allows an employer to meet its obligation to designate leave as 
FMLA-qualifying. See Sec.  825.300(d).
    G. Fitness-for-Duty Medical Certification [29 U.S.C. 2614(a)(4); 29 
CFR 825.312]. 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 in providing a complete and sufficient 
certification to the employer in the fitness-for-duty certification 
process as in the initial certification process. An employer may 
require that the fitness-for-duty certification specifically address 
the employee's essential functions if the employer has provided the 
employee with a list of those essential functions and notified the 
employee of the need for a fitness-for-duty certification in the 
designation notice. Certain managers for an employer, but not the 
employee's immediate supervisor, may contact a health care provider for 
purposes of clarifying and authenticating a fitness-for-duty 
certification. An employer is not entitled to a fitness-for-duty 
certification for each absence taken on an intermittent or reduced 
leave schedule; however, an employee may be required to furnish a 
fitness-for-duty certificate no more often than once every 30 days if 
an employee has used intermittent leave during that period and 
reasonable safety concerns exist.
    H. 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 for FMLA leave reasons 
other than care of a covered servicemember with a serious injury or 
illness (which is subject to a set ``single 12-month period''). An 
employer wishing to change to another alternative is required to give 
at least 60 days notice to all employees.
    I. Key Employee Notification [29 U.S.C. 2614(b)(1)(B); 29 CFR 
825.217 - .219 and 825.300(c)(1)(v)]. 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, 
including 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 again 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.
    J. Periodic Employee Status Reports [29 CFR 825.300(b)(4)]. An 
employer may require an employee to provide periodic reports regarding 
the employee's status and intent to return to work.
    K. 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.
    L. Documenting Family Relationship [29 CFR 825.122(j)]. An employer 
may require an employee giving notice of the need for FMLA leave to 
provide reasonable documentation or statement of family relationship. 
This

[[Page 60089]]

documentation may take the form of a simple statement from the 
employee, or a child's birth certificate, a court document, 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.
    M. 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.
    Covered employers who have eligible employees must maintain 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; total compensation paid; and 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 and 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 Americans with Disabilities Act (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 Regulations 29 
CFR part 516, are currently approved under OMB control number 1215-
0018; 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.
    II. Review Focus: The Department of Labor is particularly 
interested in comments which:
     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;
     Enhance the quality, utility, and clarity of the 
information to be collected;
     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;
     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 technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submissions of responses.
    III. Current Actions: The DOL seeks approval for the extension of 
these information collection requirements that allow covered employers 
and eligible employees seeking FMLA-qualifying leave to provide third-
party disclosures in accordance with the statutory and regulatory 
requirements discussed herein.
    Type of Review: Extension.
    Agency: Wage and Hour Division.
    Title: The Family and Medical Leave Third Party Disclosures.
    OMB Control Number: 1235-0003.
    Affected Public: Business or other for-profit; Not-for-profits 
institutions; Farms; State, Local, and Tribal Government.
    Total Respondents: 91.1 million employees.
    Total Annual Responses: 51,405,741.
    Estimated Total Burden Hours: 19,030,424.

Estimated Time per Response

    Employee Notice of Need for FMLA Leave: 2 minutes.
    Notice to Employee of FMLA Eligibility and Rights and 
Responsibilities Notice: 10 minutes.
    Medical Certification and Recertification: 20 minutes.
    Certification for Leave for a Qualifying Exigency: 20 minutes.
    Certification for Leave to Care for Covered Servicemember: 30 
minutes.
    Notice to Employees of FMLA Designation: 10 minutes.
    Fitness-for-Duty Medical Certification: 10 minutes.
    Notice to Employees of Change of 12-Month Period for Determining 
FMLA Entitlement: 1.79336117 seconds.
    Key Employee Notification: 5 minutes.
    Periodic Employee Status: 2 minutes.
    Notice to Employee of Pending Cancellation of Health Benefits: 5 
minutes.
    Documenting Family Relationship: 5 minutes.
    Recordkeeping: 1.25 minutes.
    Frequency: As needed.
    Total Burden Cost (capital/startup): $0.

[[Page 60090]]

    Total Burden Costs (operation/maintenance): $175,684,518.

    Dated: September 22, 2011.
Mary Ziegler,
Director, Division of Regulations, Legislation, and Interpretation.
[FR Doc. 2011-24873 Filed 9-27-11; 8:45 am]
BILLING CODE 4510-27-P