[Federal Register Volume 79, Number 124 (Friday, June 27, 2014)]
[Proposed Rules]
[Pages 36445-36455]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-14762]


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DEPARTMENT OF LABOR

Wage and Hour Division

29 CFR Part 825

RIN 1235-AA09


The Family and Medical Leave Act

AGENCY: Wage and Hour Division, Department of Labor.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Labor's Wage and Hour Division proposes to 
revise the regulation defining ``spouse'' under the Family and Medical 
Leave Act of 1993 (FMLA or the Act) in light of the United States 
Supreme Court's decision in United States v. Windsor, which found 
section 3 of the Defense of Marriage Act (DOMA) to be unconstitutional. 
This Notice of Proposed Rulemaking (NPRM) proposes to amend the 
definition of spouse to include all legally married spouses.

DATES: Comments must be received on or before August 11, 2014.

ADDRESSES: You may submit comments, identified by Regulatory 
Information Number (RIN) 1235-AA09, by electronic submission through 
the Federal eRulemaking Portal http://www.regulations.gov. Follow

[[Page 36446]]

instructions for submitting comments. You may also submit comments by 
mail. Address written submissions to Mary Ziegler, Director of the 
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 only one copy of your comments by only 
one method. All submissions must include the agency name and 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, and should not include any 
individual's personal medical information. For questions concerning the 
application of the FMLA provisions, individuals may contact the Wage 
and Hour Division (WHD) local district offices (see contact information 
below). Mailed written submissions commenting on these provisions must 
be received by the date indicated for consideration in this rulemaking. 
Comments submitted through http://www.regulations.gov must be received 
by 11:59 p.m. Eastern Standard Time on the date indicated for 
consideration in this rulemaking. 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, go to the Federal eRulemaking Portal at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Mary Ziegler, Director of the 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 rule 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 of interpretation and/or 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 log onto the WHD's Web site for a nationwide listing of WHD 
district and area offices at http://www.dol.gov/whd/america2.htm.

SUPPLEMENTARY INFORMATION: 

I. Electronic Access and Filing Comments

    Public Participation: This NPRM is available through the Federal 
Register and the http://www.regulations.gov Web site. You may also 
access this document via the WHD's Web site at http://www.dol.gov/whd/. 
To comment electronically on Federal rulemakings, go to the Federal e-
Rulemaking 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. You must identify 
all comments submitted by including the RIN 1235-AA09 in your 
submission. Commenters should transmit comments early to ensure timely 
receipt prior to the close of the comment period (date identified 
above); comments received after the comment period closes will not be 
considered. Submit only one copy of your comments by only one method. 
Please be advised that all comments received will be posted without 
change to http://www.regulations.gov, including any personal 
information provided, and should not include any individual's personal 
medical information.

I. Background

A. What the FMLA Provides

    The Family and Medical Leave Act of 1993, 29 U.S.C. 2601 et seq., 
entitles eligible employees of covered employers to take job-protected, 
unpaid leave, or to substitute appropriate accrued paid leave, for up 
to a total of 12 workweeks in a 12-month period for the birth of the 
employee's son or daughter and to care for the newborn child; for the 
placement of a son or daughter with the employee for adoption or foster 
care; 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. 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.
    FMLA leave may be taken in a block, or under certain circumstances, 
intermittently or on a reduced leave schedule. In addition to providing 
job protected family and medical leave, employers must also maintain 
any preexisting group health plan coverage for an employee on FMLA 
protected leave under the same conditions that would apply if the 
employee had not taken leave. 29 U.S.C. 2614. Once the leave period is 
concluded, the employer is required to restore the employee to the same 
or an equivalent position with equivalent employment benefits, pay, and 
other terms and conditions of employment. Id. If an employee believes 
that his or her FMLA rights have been violated, the employee may file a 
complaint with the Department of Labor or file a private lawsuit in 
federal or state court. If the employer has violated the 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. 29 U.S.C. 2617.
    Title I of the FMLA is administered by the U.S. Department of Labor 
and applies to private sector employers of 50 or more employees, public 
agencies, and certain federal employers and entities, such as the U.S. 
Postal Service and Postal Rate Commission. Title II is administered by 
the U.S. Office of Personnel Management and applies to civil service 
employees covered by the annual and sick leave system established under 
5 U.S.C. Chapter 63 and certain employees covered by other federal 
leave systems.

B. Who the Law Covers

    The FMLA generally covers employers with 50 or more employees. To 
be eligible to take FMLA leave, an employee must meet specified 
criteria, including employment with a covered employer for at least 12 
months, performance of a specified number of hours of service in the 12 
months prior to the start of leave, and work at a location where there 
are at least 50 employees within 75 miles.

C. Regulatory History

    The FMLA required the Department to issue initial regulations to 
implement Title I and Title IV of the FMLA within 120 days of enactment 
(by June 5, 1993) with an effective date of August 5, 1993. The 
Department published an NPRM in the Federal Register on March 10, 1993. 
58 FR 13394. The Department received comments from a wide variety of 
stakeholders, and after considering these comments the Department 
issued an interim final rule on June 4, 1993, effective August 5, 1993. 
58 FR 31794.
    After publication, the Department invited further public comment on 
the

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interim regulations. 58 FR 45433 (Aug. 30, 1993). During this comment 
period, the Department received a significant number of 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 February 3, 1995 (60 
FR 6658) and March 30, 1995 (60 FR 16382) to make minor technical 
corrections. The final regulations went into effect on April 6, 1995.
    The Department published a Request for Information (RFI) in the 
Federal Register on December 1, 2006 requesting public comments on 
experiences with the FMLA (71 FR 69504) and issued a report on the RFI 
responses on June 28, 2007 (72 FR 35550). The Department published an 
NPRM in the Federal Register on February 11, 2008 proposing changes to 
the FMLA's regulations based on the Department's experience 
administering the law, two Department of Labor studies and reports on 
the FMLA issued in 1996 and 2001, several U.S. Supreme Court and lower 
court rulings on the FMLA, and a review of the comments received in 
response to the 2006 RFI. 73 FR 7876. The Department also sought 
comments on the military family leave statutory provisions, enacted by 
the National Defense Authorization Act for Fiscal Year 2008. In 
response to the NPRM, the Department received thousands of comments 
from a wide variety of stakeholders. The Department issued a final rule 
on November 17, 2008, which became effective on January 16, 2009. 73 FR 
67934.
    The Department published an NPRM in the Federal Register on 
February 15, 2012 primarily focused on changes to the FMLA's 
regulations to implement amendments to the military leave provisions 
made by the National Defense Authorization Act for Fiscal Year 2010 and 
to the employee eligibility requirements for airline flight crew 
employees made by the Airline Flight Crew Technical Corrections Act. 77 
FR 8960. The Department issued a final rule on February 6, 2013, which 
became effective on March 8, 2013. 78 FR 8834.

II. FMLA Spousal Leave

    The FMLA provides eligible employees with leave to care for a 
spouse in the following situations: (1) When needed to care for a 
spouse due to the spouse's serious health condition; (2) when needed to 
care for a spouse who is a covered servicemember with a serious illness 
or injury; and (3) for a qualifying exigency related to the covered 
military service of a spouse. The FMLA defines ``spouse'' as ``a 
husband or wife, as the case may be.'' 29 U.S.C. 2611(13). In the 1993 
Interim Final Rule, the Department defined spouse as ``a husband or 
wife as defined or recognized under State law for purposes of marriage, 
including common law marriage in States where it is recognized.'' 58 FR 
31817, 31835 (June 4, 1993). In commenting on the Interim Final Rule, 
both the Society for Human Resource Management and William M. Mercer, 
Inc., questioned which state law would apply when an employee resided 
in one State but worked in another State. 60 FR 2190 (June 6, 1995). In 
response to these comments, the 1995 Final Rule clarified that the law 
of the State of the employee's residence would control for determining 
eligibility for FMLA spousal leave. Id. at 2191. Accordingly, since 
1995 the FMLA regulations have contained the following definition of 
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.'' 29 CFR 825.102, 825.122(a) (prior to the 2013 final rule 
the same definition appeared at 29 CFR 825.113(a) and 825.800).
    In 1996 the Defense of Marriage Act (DOMA) was enacted. Public Law 
104-199, 110 Stat. 2419. Section 3 of DOMA restricted the definitions 
of ``marriage'' and ``spouse'' for purposes of federal law, 
regulations, and administrative interpretations: ``the word `marriage' 
means only a legal union between one man and one woman as husband and 
wife, and the word `spouse' refers only to a person of the opposite sex 
who is a husband or a wife.'' 1 U.S.C. 7. For purposes of employee 
leave under the FMLA, the effect of DOMA was to limit the availability 
of FMLA leave based on a spousal relationship to opposite-sex 
marriages. While the Department did not revise the FMLA regulatory 
definition of ``spouse'' to incorporate DOMA's restrictions, in 1998 
the Wage and Hour Division (WHD) issued an opinion letter that 
addressed, in part, the limitation Section 3 of DOMA imposed on the 
availability of FMLA spousal leave.

Under the FMLA (29 U.S.C. 2611(13)), the term ``spouse'' is defined 
as a husband or wife, which the regulations (29 CFR 825.113(a)) 
clarified to mean 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. The legislative history confirms that this definition 
was adapted to ensure that employers were not required to grant FMLA 
leave to an employee to care for an unmarried domestic partner. (See 
Congressional Record, S 1347, February 4, 1993). Moreover, the 
subsequently enacted Defense of Marriage Act of 1996 (DOMA) (Public 
Law 104-199) establishes a Federal definition of ``marriage'' as 
only a legal union between one man and one woman as husband and 
wife, and a ``spouse'' as only a person of the opposite sex who is a 
husband or wife. Because FMLA is a Federal law, it is our 
interpretation that only the Federal definition of marriage and 
spouse as established under DOMA may be recognized for FMLA leave 
purposes.

Opinion Letter FMLA-98 (Nov. 18, 1998). The WHD also referenced DOMA's 
limitations on spousal FMLA leave in a number of sub-regulatory 
guidance documents posted on its Web site.
    On June 26, 2013, the Supreme Court held in United States v. 
Windsor, 133 S. Ct. 2675 (2013), that Section 3 of DOMA was 
unconstitutional under the Fifth Amendment. It concluded that this 
section ``undermines both the public and private significance of state-
sanctioned same-sex marriages'' and found that ``no legitimate purpose 
overcomes'' Section 3's ``purpose and effect to disparage and to injure 
those whom the State, by its marriage laws, sought to protect[.]'' Id. 
at 2694-96.
    Because of the Supreme Court's holding in Windsor that Section 3 of 
DOMA is unconstitutional, the Department is no longer prohibited from 
recognizing same-sex marriages. Accordingly, as of June 26, 2013, under 
the current FMLA regulatory definition of spouse, eligible employees in 
a legal same-sex marriage who reside in a State that recognizes their 
marriage may take FMLA spousal leave. On August 9, 2013, the Department 
updated its FMLA sub-regulatory guidance to remove any references to 
the restrictions imposed by Section 3 of DOMA and to expressly note 
that the regulatory definition of spouse covers same-sex spouses 
residing in States that recognize such marriages.

III. Discussion of Proposed Changes to the FMLA Regulations

    Both Section 825.102 (Definitions) and paragraph (b) of Section 
825.122 (Definitions of covered servicemember, spouse, parent, son or 
daughter, next of kin of a covered service member, adoption, foster 
care, son or daughter on covered active duty or call to covered active 
duty status, son or daughter of a covered servicemember, and parent of 
a covered servicemember) set forth the definition of ``spouse'' for 
purposes of

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FMLA leave as ``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.'' 29 
CFR 825.102, 825.122(b).
    The Department proposes to change the regulatory definition of 
spouse in sections 825.102 and 825.122(b) to look to the law of the 
jurisdiction in which the marriage was entered into (including for 
common law marriages), as opposed to the law of the State in which the 
employee resides, and to expressly reference the inclusion of same-sex 
marriages in addition to common law marriages. The Department also 
proposes to include in the definition same-sex marriages entered into 
abroad. The Department proposes to define spouse as the other person to 
whom an individual is married as defined or recognized under State law 
for purposes of marriage in the State in which the marriage was entered 
into or, in the case of a marriage entered into outside of any State, 
if the marriage is valid in the place where entered into and could have 
been entered into in at least one State. The proposed definition 
includes an individual in a same-sex or common law marriage.
    The proposed definition includes the statutory language defining 
spouse as a husband or wife but makes clear that these terms include 
all individuals in lawfully recognized marriages. The Department is 
aware that the language surrounding marriage is evolving and that not 
all married individuals choose to use the traditional terms of husband 
or wife when referring to their spouse. The Department intends the 
proposed definition to cover all spouses in legal marriages as defined 
in the regulation regardless of whether they use the terms husband or 
wife.
    The Department is proposing to move from a state of residence rule 
to a rule based on the jurisdiction where the marriage was entered into 
(place of celebration) to ensure that same-sex couples who have legally 
married will have consistent FMLA rights regardless of where they live. 
As of June 18, 2014, nineteen States and the District of Columbia 
extend the right to marry to both same-sex and opposite-sex couples 
(California, Connecticut, Delaware, District of Columbia, Hawaii, 
Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New 
Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, 
Rhode Island, Vermont, and Washington). Additionally, sixteen countries 
extend the right to marry to same-sex couples (Argentina, Belgium, 
Brazil, Canada, Denmark, England/Wales/Scotland,\1\ France, Iceland, 
The Netherlands, New Zealand, Norway, Portugal, Spain, South Africa, 
Sweden, and Uruguay). A place of celebration rule will allow all 
legally married couples, whether opposite-sex or same-sex, to have 
consistent federal family leave rights regardless of the State in which 
they reside.
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    \1\ Legislation to legalize same-sex marriage has been approved 
in Scotland and marriages of same-sex couples are expected to begin 
there in the autumn of 2014.
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    A place of celebration rule will ensure that all legally married 
employees have consistent FMLA leave rights regardless of where they 
live. The Department believes that a place of celebration rule will 
give fullest effect to the purpose of the FMLA to permit employees to 
take unpaid leave to care for a seriously ill spouse. The need to 
provide care for a spouse is the same for all married couples and does 
not change depending on their state of residence. Additionally, a place 
of celebration rule will provide consistent federal family leave rights 
for legally married couples regardless of the State in which they 
reside, thus reducing barriers to the mobility of employees in same-sex 
marriages in the labor market. The Department believes such a rule will 
also reduce the administrative burden on employers that operate in more 
than one State, or that have employees who move between States with 
different marriage recognition rules; such employers would not have to 
consider the employee's state of residence and the laws of that State 
in determining the employee's eligibility for FMLA leave.
    As noted above, the FMLA military leave provisions also entitle 
employees to take FMLA leave for a qualifying exigency related to the 
covered military service of a spouse and when needed to care for a 
spouse who is a covered servicemember with a serious illness or injury. 
See 825.126, 825.127. The Department's proposed place of celebration 
rule is consistent with the Department of Defense's (DOD) policy of 
treating all married members of the military equally. In administering 
its policy DOD looks to the place of celebration to determine if a 
military member is in a valid marriage. The Department believes it is 
appropriate wherever possible to align the availability of FMLA 
military leave with the availability of other marriage-based benefits 
provided by DOD.
    The proposed change to a place of celebration rule for the 
definition of spouse under the FMLA would also have some impact beyond 
spousal leave. The right to take FMLA leave to care for a child 
includes the right to take leave to care for a stepchild. See 825.102, 
which defines ``son or daughter'' to include a stepchild; see also 
825.122(d), 825.122(h), and 825.122(i). Under the Department's proposed 
rule, an employee in a valid same-sex marriage would be able to take 
leave to care for a stepchild to whom the employee does not stand in 
loco parentis. The Department has consistently recognized the 
eligibility of same-sex partners (whether married or not) to take leave 
to care for a partner's child provided that they meet the in loco 
parentis requirement of providing day-to-day care or financial support 
for the child. Administrator Interpretation FMLA 2010-3. Prior to the 
Supreme Court's decision in Windsor, Section 3 of DOMA prevented 
employees in same-sex marriages from taking such leave for a stepchild 
unless they satisfied the requirements of in loco parentis status. 
However, in light of the June 26, 2013 Windsor decision, under the 
current version of the regulation, employees in same-sex marriages 
residing in States that recognize such marriages can take leave for a 
stepchild to whom they do not stand in loco parentis. 29 CFR 
825.122(d)(3). Under the proposed place of celebration rule, an 
employee in a valid same-sex marriage would be able to take leave to 
care for a stepchild to whom the employee does not stand in loco 
parentis, regardless of the State in which he or she resides.
    Similarly, the proposed change would allow an employee to take FMLA 
leave to care for the employee's parent's same-sex spouse who did not 
stand in loco parentis to the employee. The regulatory definitions 
allow for FMLA leave to be taken to care for a stepparent as well as a 
parent. See 825.102, which defines ``parent'' to include a stepparent; 
see also 825.122(c) and 825.122(j). Prior to the Windsor decision, if 
an employee's parent's same-sex spouse did not have an in loco parentis 
relationship with the employee (e.g., if the employee's parent entered 
into a same-sex marriage when the employee was no longer a child), then 
the employee would not have been able to take leave to care for that 
stepparent. After Windsor, employees with a parent in a valid same-sex 
marriage living in a State that recognizes such marriages can take 
leave to care for the stepparent. Under the proposed place of 
celebration rule, an employee would be able to take leave to care for a 
parent's same-sex spouse, regardless of the State.
    Accordingly, because the Department believes that expanding the 
definition of spouse to include all legally married couples is 
consistent both with the

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Court's decision in Windsor and with the purpose of the FMLA to provide 
eligible employees with unpaid leave to care for a seriously ill 
spouse, child, or parent, the Department proposes to define ``spouse'' 
according to the law of the place of celebration. Of course, an 
employer may offer an employment benefit program or plan that provides 
greater family or medical leave rights to employees than the rights 
established by the FMLA. See 29 CFR 825.700(a). FMLA regulations state: 
``[N]othing in the Act is intended to discourage employers from 
adopting or retaining more generous leave policies.'' 29 CFR 
825.700(b). The Department seeks comments on its proposed definition.

IV. Conforming Changes

    Minor editorial changes are proposed to sections 825.120, 825.121, 
825.122, 825.127, 825.201 and 825.202 to make references to husbands 
and wives, and mothers and fathers gender neutral where appropriate so 
that they apply equally to opposite-sex and same-sex spouses. The 
Department proposes using the terms ``spouses'' and ``parents,'' as 
appropriate, in these regulations. These editorial changes do not 
change the availability of FMLA leave but simply clarify its 
availability for all eligible employees who are legally married.

V. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., 
and its attendant regulations, 5 CFR part 1320, require that the 
Department consider the impact of paperwork and other information 
collection burdens imposed on the public. Under the PRA, an agency may 
not collect or sponsor the collection of information, nor may it impose 
an information collection requirement unless it displays a currently 
valid Office of Management and Budget (OMB) control number. See 5 CFR 
1320.8(b)(3)(vi).
    OMB has assigned control number 1235-0003 to the FMLA information 
collections. As required by the PRA (44 U.S.C. 3507(d)), the Department 
has submitted these proposed information collection amendments to OMB 
for its review.
    Summary: The Department 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.
    The PRA requires all federal agencies to analyze proposed 
regulations for potential time burdens on the regulated community 
created by provisions within the proposed regulations that require the 
submission of information. These information collection (IC) 
requirements must be submitted to OMB for approval. Persons are not 
required to respond to the information collection requirements as 
contained in this proposal unless and until they are approved by OMB 
under the PRA at the final rule stage. This ``paperwork burden'' 
analysis estimates the burdens for the proposed regulations as drafted.
    The Department proposes to revise the regulation defining 
``spouse'' under the FMLA, in light of the United States Supreme 
Court's holding that Section 3 of the Defense of Marriage Act is 
unconstitutional. Amending the definition of spouse to include all 
legally married spouses as recognized under state law for purposes of 
marriage in the State where the marriage was entered into or, in the 
case of a marriage entered into outside of any State, if the marriage 
is valid in the place where entered into and could have been entered 
into in a State, would expand the availability of FMLA leave to legally 
married same-sex spouses regardless of the State in which they reside. 
Under the proposed definition of spouse, eligible employees would be 
able to take FMLA leave to care for their same-sex spouse, a stepparent 
by virtue of a parent's same-sex marriage, or a stepchild to whom the 
employee does not stand in loco parentis.
    In light of the June 26, 2013 Windsor decision and under the 
current regulation, employees in same-sex marriages have the right to 
take FMLA leave based on their same-sex marriage only if they reside in 
a State that recognizes same-sex marriage. In contrast, under the 
proposed place of celebration rule, all eligible employees in same-sex 
marriages would be able to take FMLA leave, regardless of their state 
of residence. These proposed information collection amendments update 
the burden estimates to include same-sex couples nationwide--employees 
whom Windsor rendered eligible to take FMLA leave under the current 
regulation based on their same-sex marriage residing in States that 
recognize such marriages and employees who would become able to take 
such leave under this proposed rule.
    Covered, eligible employees in same-sex marriages are already 
eligible to take FMLA leave for certain FMLA qualifying reasons (e.g., 
employee's own serious health condition, the employee's parent's or 
child's health condition, etc.). The proposed rule does not increase 
the number of employees eligible to take FMLA leave; rather, it would 
allow FMLA leave to be taken on the basis of an employee's same-sex 
marriage regardless of their state of residence, in addition to the 
other reasons for which they were already able to take leave. That is, 
FMLA coverage and eligibility provisions are unchanged by this proposed 
rule, and employees who are not currently eligible and employed by a 
covered establishment would not become eligible as a result of this 
rule.
    Accordingly, the Department developed an estimate that focuses on 
FMLA leave that employees can take to care for their same-sex spouse, 
stepchild (i.e., child of employee's same-sex spouse to whom the 
employee does not stand in loco parentis), or stepparent (i.e., same-
sex spouse of employee's parent). The proposed regulations, which do 
not substantively alter the FMLA but instead allow FMLA leave to be 
taken on the basis of an employee's same-sex marriage regardless of 
their state of residence, would create additional burdens on some of 
the information collections.
    Circumstances Necessitating Collection: 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; 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 workweeks of unpaid, job-protected leave 
during a single 12-month period to an eligible employee who is the 
spouse, son, daughter, parent, or next of kin of a covered 
servicemember for the employee to provide care for the covered 
servicemember with a serious injury or illness. FMLA section 404 
requires the Secretary of Labor to

[[Page 36450]]

prescribe such regulations as necessary to enforce this Act. 29 U.S.C. 
2654.
    The Department's authority for the collection of information and 
the required disclosure of information under the FMLA stems from the 
statute and/or the implementing regulations. These third-party 
disclosures ensure that both employers and employees are aware of and 
can exercise their rights and meet their respective obligations under 
FMLA.
    Purpose and Use: No WHD forms are impacted by the proposed 
regulations. While the use of the Department's existing 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 
the FMLA.
    Technology: The regulations prescribe no particular order or form 
of records. See Sec.  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 Department for inspection, copying, 
and transcription of the records. In addition, photocopies of records 
are also acceptable under the regulations. Id.
    Aside from the general requirement that 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 Department-prepared 
publications available on the WHD Web site, www.dol.gov/whd. These 
forms are in PDF, fillable format for downloading and printing. 
Employers may maintain records in any format, including electronic, 
when adhering to the recordkeeping requirements covered by this 
information collection.
    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 Fair Labor Standards Act (FLSA). Employers do not need to 
duplicate the records when basic records maintained to meet FLSA 
requirements also document FMLA compliance. With the exception of 
records specifically tracking FMLA leave, the additional records 
required by the FMLA regulations are records that employers ordinarily 
maintain in the usual and ordinary course of business. The regulations 
do impose, however, a three-year minimum time limit that employers must 
maintain the records. The Department minimizes the FMLA information 
collection burden by accepting records maintained by employers as a 
matter of usual or customary business practices to the extent those 
records meet FMLA requirements. The Department also accepts records 
kept due to other governmental requirements (e.g., records maintained 
for tax and payroll purposes). The Department 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 Department 
has further minimized the burden by developing prototype notices for 
many of the third-party disclosures covered by this information 
collection.
    Minimizing Small Entity Burden: This information collection does 
not have a significant impact on a substantial number of small 
entities. The Department minimizes the FMLA information collection 
burden by accepting records maintained by employers as a matter of 
usual or customary business practices. The Department also accepts 
records kept due to requirements of other governmental requirements 
(e.g., records maintained for tax and payroll purposes). The Department 
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 Department has further minimized burden by developing 
prototype notices for many of the third-party disclosures covered by 
this information collection and giving the text employers must use, in 
accordance with FMLA section 109 (29 U.S.C. 2619), in providing a 
general notice to employees of their FMLA rights and responsibilities, 
in addition to the prototype optional-use forms.
    Agency Need: The Department is assigned a statutory responsibility 
to ensure employer compliance with the FMLA. The Department uses 
records covered by this 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 third-party notifications, 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.
    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 Americans with 
Disabilities Act and Genetic Information Nondiscrimination Act 
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: The Department seeks public comments regarding the 
burdens imposed by information collections contained in this proposed 
rule. In particular, the Department 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 Department 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

[[Page 36451]]

currently valid OMB approval, and the Department has submitted the 
identified information collection contained in the proposed rule to OMB 
for review under the PRA under the Control Number 1235-0003. See 44 
U.S.C. 3507(d); 5 CFR 1320.11. 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 
Department, comments about the paperwork implications of the proposed 
regulations may be addressed to OMB. Comments to OMB should be directed 
to: Office of Information and Regulatory Affairs, Attention OMB Desk 
Officer for the Wage and Hour Division, 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 Department makes no assurances of 
confidentiality to respondents. As a practical matter, the Department 
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.
    Agency: Wage and Hour Division.
    Title of Collection: Family and Medical Leave Act, as Amended.
    OMB Control Number: 1235-0003.
    Affected Public: Individuals or households; private sector--
businesses or other for profits.
    Not for profit institutions, Farms, State, Local, or Tribal 
Governments.
    Total estimated number of respondents: 14,163,289 (no change).
    Total estimated number of responses: 89,320,285 (14,816 responses 
added by this NPRM).
    Total estimated annual burden hours: 19,029,671 (2,578 hours added 
by this NPRM).
    Total estimated annual other cost burdens: $163,536,586 ($68,671 
added by this NPRM).

VI. Executive Order 12866; Executive Order 13563

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. Although this rule is not economically significant within 
the meaning of Executive Order 12866, it has been reviewed by the 
Office of Management and Budget.
    The Department proposes to revise the regulatory definition of 
``spouse'' for the purpose of FMLA to allow all legally married 
employees to take leave to care for their spouse regardless of whether 
their state of residence recognizes their marriage. As a result of the 
proposed regulatory change, covered and eligible employees would be 
entitled to take FMLA leave regardless of their state of residence to 
care for their same-sex spouse with a serious health condition; to care 
for a stepchild with a serious health condition to whom the employee 
does not stand in loco parentis; to care for their parent's same-sex 
spouse with a serious health condition; for qualifying exigency reasons 
related to the covered active duty of their same-sex spouse; and to 
care for their same-sex spouse who is a covered servicemember with a 
serious injury or illness. This proposed rule would not expand coverage 
under the FMLA, that is, the coverage and eligibility provisions of the 
FMLA are unchanged by this rule and employees who are not currently 
eligible and employed by a covered establishment would not become 
eligible as a result of this proposed rule.
    Estimates of the number of individuals in same-sex marriages vary 
widely due to issues with state level data tracking, reliance on self-
reporting, and changes in survey formatting. The Department bases the 
number of same-sex marriages on the 2010 American Community Survey 
(ACS), conducted by the U.S. Census Bureau.\2\ The 2010 ACS showed 
152,500 self-reported same-sex marriages, resulting in 305,000 
individuals. The Department estimates, based on the 2010 ACS, that in 
about 45 percent of same-sex marriages, both partners are employed and, 
for the purposes of this analysis, the Department assumes that one 
spouse is employed in the remaining 55 percent of same-sex 
marriages.\3\
---------------------------------------------------------------------------

    \2\ Lofquist, Daphne, Same-Sex Couple Households: American 
Community Survey Briefs, September 2011, p. 3. Available at: http://www.census.gov/prod/2011pubs/acsbr10-03.pdf.
    \3\ U.S. Census Bureau, 2011 American Community Survey 1-year 
data file. Table 2. Household Characteristics of Same-sex Couple 
Households by Assignment Status.
---------------------------------------------------------------------------

    The Department recently surveyed employers and employees nationwide 
on FMLA leave taking, Family and Medical Leave in 2012.\4\ Based on 
these survey findings, 59.2 percent of employees meet the eligibility 
requirements for FMLA leave and are employed by covered 
establishments.\5\ Of those employees, 16.8 percent were married and 
took FMLA leave \6\ and of those who took leave, 17.6 percent took 
leave to care for a parent, spouse, or child, and 1.4 percent took 
leave to address issues related to a military family member's covered 
active duty.\7\ Applying these findings to the number of individuals in 
same-sex marriages based on the 2010 ACS, results in an estimated 6,720 
new instances of FMLA leave annually as a result of the proposed change 
to the regulatory definition of spouse.\8\ \9\ This likely 
overestimates the number of instances of new leave that would be taken, 
as covered and eligible employees in same-sex marriages are already 
entitled to take FMLA leave to care for a parent or child with a 
serious health condition.
---------------------------------------------------------------------------

    \4\ See Wage and Hour Division FMLA Surveys Web page at: http://www.dol.gov/whd/fmla/survey/ survey/.
    \5\ Family and Medical Leave in 2012: Technical Report, exhibit 
2.2.1, page 20, available at: http://www.dol.gov/asp/evaluation/fmla/FMLA-2012-Technical-Report.pdf.
    \6\ Family and Medical Leave in 2012: Technical Report, exhibit 
4.1.5, page 64.
    \7\ Family and Medical Leave in 2012: Technical Report, exhibits 
4.4.2, page 70, and 4.4.7, page 74.
    \8\ (152,500 marriages x 45 percent x 2) + (152,500 x 55 
percent) = 137,250 + 83,875 = 221,125 employed same-sex spouses. 
221,125 employees x 59.2 percent = 131,000 covered, eligible 
employees (rounded) 131,000 x 16.8 percent = 22,000 covered, 
eligible, employees taking leave (rounded). In the 2008 proposed 
FMLA rule, the Department estimated that covered eligible employees 
take 1.5 instances of leave per year (73 FR 7944). The Department 
uses that same estimate for this analysis. 21,992 x 1.5 = 33,000 
instances of leave per year (rounded) 33,000 (rounded) x 17.6 
percent = 5,800 instances of leave (rounded) to care for a parent, 
spouse, or child. 33,000 x 1.4 percent = 460 instances of leave 
(rounded) for qualifying exigency reasons. For purposes of this 
analysis, the Department assumes employees will take leave to care 
for a covered servicemember at the same rate as leave taken for a 
qualifying exigency. 5,800 + 460 + 460 = 6,720 new instances of FMLA 
leave
    \9\ PRA analysis estimates burdens imposed by the ``paperwork'' 
requirements, while E.O. 12866 analysis estimates the effect the 
proposed regulations will have on the economy. Because E.O. 12866 
and the PRA impose differing requirements, and because the 
corresponding analyses are intended to meet different needs, the 
estimated number of instances of leave in the PRA analysis differs 
from the estimated number in the E.O. 12866 analysis.
---------------------------------------------------------------------------

    Because FMLA leave is unpaid leave, the costs to employers 
resulting from this proposed rule change are: Regulatory 
familiarization, maintenance of preexisting employee health benefits 
during FMLA leave, and administrative

[[Page 36452]]

costs associated with providing required notices to employees, 
requesting certifications, reviewing employee requests and medical 
certifications, and making necessary changes to employer policies. The 
costs related to requesting and reviewing employee requests for leave 
and certifications and of providing required notices to employees are 
discussed in the Paperwork Reduction Act section of this proposed rule. 
The Department expects the remaining costs to be minimal to employers. 
The Department has determined that this rule will not result in an 
annual effect on the economy of $100 million or more.

VII. Small Business Regulatory Enforcement Fairness Act; Regulatory 
Flexibility

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires 
agencies to evaluate the potential effects of their proposed and final 
rules on small businesses, small organizations and small governmental 
jurisdictions. See 5 U.S.C. 603-604. If the rule is not expected to 
have a significant economic impact on a substantial number of small 
entities, the RFA allows an agency to certify such, in lieu of 
preparing an analysis. See 5 U.S.C. 605.
    The Department has determined that the proposed rule will not have 
a significant economic impact on a substantial number of small entities 
within the meaning of the RFA. Therefore, an initial regulatory 
flexibility analysis is not required. The factual basis for this 
certification is set forth below.
    The proposed rule amending the FMLA regulations' definition of 
spouse does not substantively alter current FMLA regulatory 
requirements, but instead allows leave to be taken on the basis of an 
employee's same-sex marriage. The Department estimates that the 
proposed definitional revision will result in 6,720 new instances of 
FMLA leave annually.\10\ This likely overestimates the number of new 
instances of leave-taking as covered and eligible employees in same-sex 
marriages are already entitled in most cases to take FMLA leave to care 
for a parent or child with a serious health condition.
---------------------------------------------------------------------------

    \10\ Based on 2010 American Community Survey (ACS) data, the 
Department estimates that there are 305,000 individuals in a same-
sex marriage. Based on ACS estimates, both partners are employed in 
45.2 percent of same-sex married households. We assume that one 
partner is employed in the remaining 54.8 percent of same-sex 
married households. Thus, 72.6 percent of all partners in same-sex 
married households are employed. Applying this percentage to the 
number of individuals in a same-sex marriage, we estimate that 
221,400 individuals in same-sex marriages are employed. Based on a 
2012 DOL survey, 59.2 percent of employed individuals are covered by 
and eligible to take FMLA leave. Thus, we estimate that 131,100 
individuals are covered by the FMLA and eligible for FMLA leave. 
Also based on the 2012 DOL survey's findings on leave usage 
patterns, 16.8% of covered, eligible, married employees actually 
take FMLA leave per year. Accordingly, we estimate that 22,000 
employees are FMLA-covered, FMLA-eligible, and actually take leave 
each year. Further, based on the 2012 DOL survey finding that 1.5 is 
the average number of instances of leave per taker, individuals in 
same-sex marriages take 33,000 instances of leave. It is important 
to note that this figure of 33,000 instances of leave represents the 
estimate of all instances of FMLA leave taken by same-sex partners 
for any FMLA reason, including leave which they were already 
eligible to take (i.e., leave for themselves, their child, their 
parent, etc.) in addition to leave that a covered employee in a 
same-sex marriage may take for the employee's same-sex spouse, 
stepchild to whom they do not stand in loco parentis, and 
stepparent.
    The 2012 DOL survey found that 17.6 percent of FMLA leave is 
used to take care of an employee's parent, child, or spouse; 1.4 
percent of FMLA leave is for qualifying exigency purposes; and 1.4 
percent of FMLA leave is for military caregiver purposes. Applying 
these percentages to the 33,000 instances of FMLA leave yields the 
following: 5,800 instances of leave related to care of an employee's 
parent, child, or spouse; 460 instances for qualifying exigency; and 
460 instances for military caregiver purposes, for a total of 6,720 
new instances of FMLA leave per year.
---------------------------------------------------------------------------

    Because the FMLA does not require the provision of paid leave, the 
costs of this proposal are limited to the cost of hiring replacement 
workers, maintenance of employer-provided health insurance to the 
employee while on FMLA leave, compliance with the FMLA's notice 
requirements, and regulatory familiarization.
    The need to hire replacement workers represents a possible cost to 
employers. In some businesses, employers are able to redistribute work 
among other employees while an employee is absent on FMLA leave, but in 
other cases the employer may need to hire temporary replacement 
workers. This process involves costs resulting from recruitment of 
temporary workers with needed skills, training the temporary workers, 
and lost or reduced productivity of these workers. The cost to 
compensate the temporary workers is in most cases offset by the amount 
of wages not paid to the employee absent on FMLA leave, when the 
employee's FMLA leave is unpaid, (i.e., the employee is not using 
accrued sick or vacation leave).
    In the initial FMLA rulemaking, the Department drew upon available 
research to suggest that the cost per employer to adjust for workers 
who are on FMLA leave is fairly small. 58 FR 31810 (Mar. 10, 1993). 
Subsequent rulemakings have not produced evidence to the contrary; 
therefore, for the purpose of this discussion, we will continue to 
assume that these costs are fairly small. Furthermore, most employers 
subject to this rule change have been subject to the FMLA for some time 
and have already developed internal systems for work redistribution and 
recruitment of temporary workers.
    Additionally, because FMLA leave is unpaid, one cost to employers 
consists of the health insurance benefits maintained by employers 
during employees' FMLA leave. Based on the Department's recent survey 
on FMLA leave, Family and Medical Leave in 2012, the average length of 
leave taken in one year by a covered, eligible employee is 27.5 
days.\11\ Assuming that most employees worked an eight-hour day, the 
average length of FMLA leave for an employee totals 220 hours in a 
given year.
---------------------------------------------------------------------------

    \11\ 2012 FMLA survey data showed that employees' average length 
of leave in past twelve months was 27.5 days. Family and Medical 
Leave in 2012: Technical Report, page 68, available at: http://www.dol.gov/asp/evaluation/fmla/FMLA-2012-Technical-Report.pdf.
---------------------------------------------------------------------------

    Further, based on methodology used in the 2008 Final Rule, which 
first implemented the FMLA's military leave provisions, the Department 
estimates that a covered, eligible employee will take 200 hours of FMLA 
leave for qualifying exigency leave under Sec.  825.126 in a given 
year. Additionally, using the same methodology, we estimate that a 
covered, eligible employee will take 640 hours of FMLA leave for 
military caregiver leave in a given year under Sec.  825.127. 73 FR 
68051 (Nov. 17, 2008).
    To calculate the costs of providing health insurance, the 
Department utilizes data from the BLS Employer Costs for Employee 
Compensation survey. According to BLS' March 2014 report, employers 
spend an average of $2.45 per hour on insurance.\12\
---------------------------------------------------------------------------

    \12\ http://bls.gov/ro7/ro7ecec.htm.
---------------------------------------------------------------------------

    The Department estimates that, on an annual basis for employees in 
same-sex marriages, the proposed rule will result in: 5,800 new 
instances of FMLA leave taken to care for an employee's same-sex 
spouse, stepchild, or stepparent; 460 new instances for qualifying 
exigency purposes; and 460 new instances for military caregiver 
purposes. Accordingly, an estimated total of 6,720 new instances of 
FMLA leave might be taken as a result of this proposed rule.
    Applying the average leave duration to the number of new instances 
of FMLA leave taken in each category, and then multiplying by the $2.45 
hourly cost to employers for health insurance results in the following 
cost estimates:
    [ssquf] Estimated annual employer benefits cost for FMLA leave 
taken for

[[Page 36453]]

employee's same-sex spouse, stepchild, or stepparent: $3,126,200 (5,800 
new instances x 220 hours \13\ x $2.45)
---------------------------------------------------------------------------

    \13\ Note that 220 hours (27.5 days) is likely an overestimate, 
since some of these hours would be for FMLA leave that the employee 
was already eligible to take (e.g., leave for employee's parent, 
spouse, or child).
---------------------------------------------------------------------------

    [ssquf] Estimated annual employer benefit cost for FMLA leave taken 
for qualifying exigency leave: $225,400 (460 new instances x 200 hours 
x $2.45)
    [ssquf] Estimated annual employer benefit cost for FMLA leave taken 
for military caregiver leave: $721,280 (460 new instances x 640 hours x 
$2.45).

Assuming that all covered, eligible employees taking FMLA leave receive 
employer-provided health insurance benefits, the estimated total cost 
to employers for providing benefits is $4,072,880.
    Further, employers will incur costs related to the increase in the 
number of required notices and responses to certain information 
collections under this proposal. As explained in the Paperwork 
Reduction Act section of this preamble, the Department has estimated 
the aggregate paperwork burden cost associated with compliance with 
this regulatory change to be $68,671 per year.
    Lastly, in response to the proposed rule, each employer will need 
to review the definitional change and determine what revisions are 
necessary to their policies, and update their handbooks or other leave-
related materials to incorporate any needed changes. This is a one-time 
cost to each employer, calculated as 30 minutes at the loaded hourly 
wage of a Human Resources Specialist. The median hourly wage of a Human 
Resources Specialist is $27.23 plus 40 percent in fringe benefits. See 
BLS Occupational Employment Statistics, Occupational Employment and 
Wages, May 2013 (http://www.bls.gov/oes/current/oes131071.htm). The 
Department estimates total annual respondent costs for the value of 
their time to be $7,261,860 ($38.12 x 0.5 hour x 381,000 covered firms 
and government agencies with 1.2 million establishments subject to the 
FMLA).
    Therefore, the Department estimates the total cost of this proposed 
regulatory change to be $11,403,411 ($4,072,880 in employer provided 
health benefits + $68,671 in paperwork burden cost + $7,261,860 in 
regulatory familiarization costs).
    The Department believes this to be an overestimate. 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). 
Therefore, changes to the FMLA regulations by definition will not 
impact small businesses with fewer than 50 employees. The Department 
acknowledges that some small employers that are within the SBA 
definition of small business (50-500 employees) will still have to 
comply with the regulation and incur costs.
    In its 2012 proposed rule, the Department estimated there were 
381,000 covered firms and government agencies with 1.2 million 
establishments subject to the FMLA. 77 FR 8989 (Feb. 15, 2012). 
Applying the SBA size definitions for small entities, the Department 
estimated that 83 percent, or 314,751 firms, are small entities subject 
to the FMLA. 77 FR 9004. Dividing the total cost of this proposed rule 
by the DOL estimate for the number of affected small firms results in a 
cost per small firm of $36.23. This is not deemed a significant cost. 
In addition, if the Department assumed that the total estimated cost of 
this proposed rule applies to all small entities, as defined by the 
SBA, the economic impact would only be $29.93 per small entity 
[$11,403,411 (total cost) divided by 381,000 (FMLA-covered small 
entities)]. This amount is not deemed significant.
    The Department certifies to the Chief Counsel for Advocacy that the 
proposed rule will not have a significant economic impact on a 
substantial number of small entities.

VIII. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for federal agencies to assess the 
effects of their regulatory actions on state, local, and tribal 
governments as well as on the private sector. Under Section 202(a) of 
UMRA, the Department must generally prepare a written statement, 
including a cost-benefit analysis, for proposed and final regulations 
that ``includes any Federal mandate that may result in the expenditure 
by State, local, and tribal governments, in the aggregate or by the 
private sector'' in excess of $100 million in any one year ($141 
million in 2012 dollars, using the Gross Domestic Product deflator).
    State, local, and tribal government entities are within the scope 
of the regulated community for this proposed regulation. The Department 
has determined that this proposed rule contains a federal mandate that 
is unlikely to result in expenditures of $141 million or more for 
state, local, and tribal governments, in the aggregate, or the private 
sector in any one year.

IX. Executive Order 13132, Federalism

    The proposed rule does not have federalism implications as outlined 
in E.O. 13132 regarding federalism. Although States are covered 
employers under the FMLA, 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.

X. Executive Order 13175, Indian Tribal Governments

    This proposed rule was reviewed under the terms of E.O. 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.

XI. Effects on Families

    The undersigned hereby certifies 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.

XII. Executive Order 13045, Protection of Children

    E.O. 13045 applies to any rule that (1) is determined to be 
``economically significant'' as defined in E.O. 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 subject to E.O. 13045 because it is not economically 
significant as defined in Executive Order 12866 and, although the rule 
addresses family and medical leave provisions of the FMLA, it does not 
concern environmental health or safety risks that may 
disproportionately affect children.

XIII. Environmental Impact Assessment

    A review of this proposal in accordance with the requirements of 
the National Environmental Policy Act of

[[Page 36454]]

1969 (NEPA), 42 U.S.C. 4321 et seq.; the regulations of the Council on 
Environmental Quality, 40 CFR part 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.

XIV. Executive Order 13211, Energy Supply

    This proposed rule is not subject to E.O. 13211. It will not have a 
significant adverse effect on the supply, distribution or use of 
energy.

XV. Executive Order 12630, Constitutionally Protected Property Rights

    This proposal is not subject to E.O. 12630, because it does not 
involve implementation of a policy ``that has takings implications'' or 
that could impose limitations on private property use.

XVI. Executive Order 12988, Civil Justice Reform Analysis

    This proposed rule was drafted and reviewed in accordance with E.O. 
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 19th day of June 2014.
David Weil,
Administrator, Wage and Hour Division.

    For the reasons set forth in the preamble, the Department proposes 
to amend Title 29, Part 825 of the Code of Federal Regulations as 
follows:

PART 825--THE FAMILY AND MEDICAL LEAVE ACT OF 1993

0
1. The authority citation for part 825 continues to read as follows:

    Authority:  29 U.S.C. 2654.

0
2. In Sec.  825.102 revise the definition of ``spouse'' to read as 
follows:


Sec.  825.102  Definitions.

* * * * *
    Spouse, as defined in the statute, means a husband or wife. For 
purposes of this definition, husband or wife refers to the other person 
with whom an individual entered into marriage as defined or recognized 
under State law for purposes of marriage in the State in which the 
marriage was entered into or, in the case of a marriage entered into 
outside of any State, if the marriage is valid in the place where 
entered into and could have been entered into in at least one State. 
This definition includes an individual in a same-sex or common law 
marriage that either (1) was entered into in a State that recognizes 
such marriages or, (2) if entered into outside of any State, is valid 
in the place where entered into and could have been entered into in at 
least one State.
* * * * *
0
3. Amend Sec.  825.120 by:
0
a. Revising paragraph (a)(1);
0
b. Revising the first and fifth sentences of paragraph (a)(2);
0
c. Revising the first, second, and fifth sentences of paragraph (a)(3);
0
d. Revising the first and fourth sentences of paragraph (a)(4);
0
e. Revising the first sentence of paragraph (a)(5);
0
f. Revising paragraph (a)(6); and
0
g. Revising the sixth sentence of paragraph (b).
    The revisions to read as follows:


Sec.  825.120  Leave for pregnancy or birth.

    (a) * * *
    (1) Both parents are entitled to FMLA leave for the birth of their 
child.
    (2) Both parents 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. * * * Under this section, both parents are 
entitled to FMLA leave even if the newborn does not have a serious 
health condition.
    (3) Spouses 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 the spouses are employed by the same employer. * * 
* Where spouses 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 spouses 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. * * * 
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 birth mother, and would not be subject to the combined limit.
    (4) The expectant 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. * * * The expectant 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. * * *
    (5) A spouse is entitled to FMLA leave if needed to care for a 
pregnant spouse who is incapacitated or if needed to care for her 
during her prenatal care, or if needed to care for her following the 
birth of a child if she has a serious health condition. * * *
    (6) Both parents are entitled to FMLA leave if needed to care for a 
child with a serious health condition if the requirements of Sec. Sec.  
825.113 through 825.115 and 825.122(d) are met. Thus, spouses may each 
take 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) * * * The employer's agreement is not required for intermittent 
leave required by the serious health condition of the expectant mother 
or newborn child. * * *
0
4. Amend Sec.  825.121 by:
0
a. Revising the first, second, and fifth sentences of paragraph (a)(3); 
and
0
b. Revising the second sentence of paragraph (a)(4).
    The revisions to read as follows:


Sec.  825.121  Leave for adoption or foster care.

* * * * *
    (3) Spouses 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

[[Page 36455]]

on the total weeks of leave applies to leave taken for the reasons 
specified as long as the spouses are employed by the same employer. * * 
* Where spouses 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 spouses 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. * * *
    (4) * * * Thus, spouses 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.
* * * * *
0
5. Revise Sec.  825.122(b) to read as follows:


Sec.  825.122  Definitions of covered servicemember, spouse, parent, 
son or daughter, next of kin of a covered servicemember, adoption, 
foster care, son or daughter on covered active duty or call to covered 
active duty status, son or daughter of a covered servicemember, and 
parent of a covered servicemember.

* * * * *
    (b) Spouse, as defined in the statute, means a husband or wife. For 
purposes of this definition, husband or wife refers to the other person 
with whom an individual entered into marriage as defined or recognized 
under State law for purposes of marriage in the State in which the 
marriage was entered into or, in the case of a marriage entered into 
outside of any State, if the marriage is valid in the place where 
entered into and could have been entered into in at least one State. 
This definition includes an individual in a same-sex or common law 
marriage that either (1) was entered into in a State that recognizes 
such marriages or, (2) if entered into outside of any State, is valid 
in the place where entered into and could have been entered into in at 
least one State.
* * * * *
0
6. Amend Sec.  825.127 by revising the first and second sentences of 
paragraph (f) to read as follows:


Sec.  825.127  Leave to care for a covered servicemember with a serious 
injury or illness (military caregiver leave).

* * * * *
    (f) Spouses who are eligible for FMLA leave and are employed by the 
same covered employer may be limited to a combined total of 26 
workweeks of leave during the single 12-month period described in 
paragraph (e) of this section 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, to care for the 
employee's parent with a serious health condition, or to care for a 
covered servicemember with a serious injury or illness. This limitation 
on the total weeks of leave applies to leave taken for the reasons 
specified as long as the spouses are employed by the same employer. * * 
*
0
7. Amend Sec.  825.201 by revising the first, second, and fifth 
sentences of paragraph (b) to read as follows:


Sec.  825.201  Leave to care for a parent.

* * * * *
    (b) Same employer limitation. Spouses 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 the spouses are 
employed by the same employer. * * * Where the spouses 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 spouses 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. * * *
0
8. Amend Sec.  825.202 by revising the third sentence of paragraph (c) 
to read as follows:


Sec.  825.202  Intermittent leave or reduced leave schedule.

* * * * *
    (c) * * * The employer's agreement is not required, however, for 
leave during which the expectant mother has a serious health condition 
in connection with the birth of her child or if the newborn child has a 
serious health condition. * * *
* * * * *
[FR Doc. 2014-14762 Filed 6-26-14; 8:45 am]
BILLING CODE 4510-27-P