[Federal Register Volume 85, Number 138 (Friday, July 17, 2020)]
[Proposed Rules]
[Pages 43513-43517]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14873]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Wage and Hour Division

29 CFR Part 825

RIN 1235-AA30


Family and Medical Leave Act of 1993

AGENCY: Wage and Hour Division, U.S. Department of Labor.

ACTION: Request for information.

-----------------------------------------------------------------------

SUMMARY: The Department of Labor (Department) is seeking information 
from the public regarding the regulations implementing the Family and 
Medical Leave Act of 1993 (FMLA or the Act). The Department is 
publishing this Request for Information (RFI) to gather information 
concerning the effectiveness of the current regulations and to aid the 
Department in its administration of the FMLA. The information provided 
will help the Department identify topics for which additional 
compliance assistance could be helpful, including opportunities for 
outreach to ensure employers are aware of their obligations under the 
law and employees are informed about their rights and responsibilities 
in using FMLA leave.

DATES: Submit written comments on or before September 15, 2020.

ADDRESSES: To facilitate the receipt and processing of written comments 
on this RFI, the Department encourages interested persons to submit 
their comments electronically. You may submit comments, identified by 
Regulatory Information Number (RIN) 1235-AA30, by either of the 
following methods:
    Electronic Comments: Follow the instructions for submitting 
comments on the Federal eRulemaking Portal http://www.regulations.gov.
    Mail: Address written submissions to Amy DeBisschop, Director, 
Division of Regulations, Legislation, and Interpretation, Wage and Hour 
Division, U.S. Department of Labor, Room S-3502, 200 Constitution 
Avenue NW, Washington, DC 20210.
    Instructions: This RFI is available through the Federal Register 
and the http://www.regulations.gov website. You may also access this 
document via the Wage and Hour Division's (WHD) website at http://www.dol.gov/whd/. All comment submissions must include the agency name 
and Regulatory Information Number (RIN 1235-AA30) for this RFI. 
Response to this RFI is voluntary and respondents need not reply to all 
questions listed below. The Department requests that no business 
proprietary information, copyrighted information, individual medical 
information, or personally identifiable information be submitted in 
response to this RFI. Submit only one copy of your comment by only one 
method (e.g., persons submitting comments electronically are encouraged 
not to submit paper copies). Anyone who submits a comment (including 
duplicate comments) should understand and expect that the comment will 
become a matter of public record and will be posted without change to 
http://www.regulations.gov, including any personal or medical 
information provided. All comments must be received by 11:59 p.m. on 
the date indicated for consideration in this RFI; comments received 
after the comment period closes will not be considered. Commenters 
should transmit comments

[[Page 43514]]

early to ensure timely receipt prior to the close of the comment 
period. Electronic submission via http://www.regulations.gov enables 
prompt receipt of comments submitted as the Department continues to 
experience delays in the receipt of mail in our area. For access to the 
docket to read background documents or comments, go to the Federal 
eRulemaking Portal at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Amy DeBisschop, Director, Division of 
Regulations, Legislation, and Interpretation, Wage and Hour Division, 
U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW, 
Washington, DC 20210; telephone: (202) 693-0406 (this is not a toll-
free number). Copies of this RFI may be obtained in alternative formats 
(Large Print, braille, Audio Tape or Disc), upon request, by calling 
(202) 693-0675 (this is not a toll-free number). TTY/TDD callers may 
dial toll-free 1 (877) 889-5627 to obtain information or request 
materials in alternative formats.
    Questions concerning enforcement of the agency's regulations may be 
directed to the nearest WHD district office. Locate the nearest office 
by calling the WHD's toll-free help line at (866) 4US-WAGE ((866) 487-
9243) between 8 a.m. and 5 p.m. in your local time zone, or visit WHD's 
website at http://www.dol.gov/whd/america2.htm for a nationwide listing 
of WHD district and area offices.

SUPPLEMENTARY INFORMATION:

I. Background

    Administering the FMLA while responding to the COVID-19 public 
health emergency is an ongoing priority for the Department. Workplace 
flexibility ensured by job-protected leave is essential to American 
prosperity. Workers are more productive and more likely to remain 
employed if they do not have to choose between taking care of 
themselves or their loved ones and keeping their jobs. Likewise, 
businesses attract and retain the best talent when they give their 
workers flexibility that encourages productivity and retention.
    In keeping with these principles, the FMLA, 29 U.S.C. 2601 et seq., 
entitles eligible employees of covered employers to take up to a total 
of 12 workweeks of job-protected, unpaid leave, or to substitute 
accrued paid leave, during a 12-month period for the birth of the 
employee's child; for the placement of a child with the employee for 
adoption or foster care; to care for the newborn or newly-placed child; 
to care for the employee's spouse, parent, son, or daughter with a 
serious health condition; when the employee is unable to work due to 
the employee's own serious health condition; or for any qualifying 
exigency arising out of the fact that the employee's spouse, son, 
daughter, or parent is a military member on covered active duty. See 29 
U.S.C. 2612(a)(1). An eligible employee may also take up to 26 
workweeks of FMLA leave during a ``single 12-month period'' to care for 
a covered servicemember with a serious injury or illness when the 
employee is the spouse, son, daughter, parent, or next of kin of the 
servicemember. See 29 U.S.C. 2612(a)(3).
    FMLA leave may be taken in a block or, under certain circumstances, 
intermittently or on a reduced leave schedule. See 29 U.S.C. 2612(b). 
In addition to providing job-protected leave, employers covered by the 
law must maintain for the employee any preexisting group health 
coverage during the leave period and, once the leave period has 
concluded, reinstate the employee to the same or an equivalent job with 
equivalent employment benefits, pay, and other terms and conditions of 
employment. See 29 U.S.C. 2614.
    The Department issued an initial interim final rule after the FMLA 
became law in 1993, 58 FR 31794, and issued final FMLA regulations in 
1995, 60 FR 2180. The Department published significant revisions to the 
FMLA regulations in 2008, 73 FR 67934, which were informed, in part, by 
a 2006 Request for Information, 71 FR 69504. The Department next 
changed the FMLA regulations in 2013 to implement statutory amendments 
affecting military family leave provisions and airline flight crew 
eligibility. 78 FR 8834. The FMLA regulations were last updated in 2015 
to update the definition of spouse. 80 FR 9989.\1\
---------------------------------------------------------------------------

    \1\ Additionally, the Department has regularly sought employer 
and employee feedback on the administration and use of the FMLA 
through surveys designed to understand the range of perspectives on 
the FMLA in the U.S. The Department has commissioned four series of 
these surveys; the fourth is currently underway. Information about 
the Wave 4 FMLA surveys may be found at https://www.dol.gov/asp/evaluation/currentstudies/Family-and-Medical-Leave-Act-Wave-4-Surveys.htm. Further, the results from the prior Wave 3 FMLA survey 
(referred to as the 2012 FMLA survey elsewhere in this document) may 
be found at https://www.dol.gov/asp/evaluation/completed-studies/Family_Medical_Leave_Act_Survey/TECHNICAL_REPORT_family_medical_leave_act_survey.pdf.
---------------------------------------------------------------------------

    On August 5, 2019, the Department published a Federal Register 
notice seeking public comment on proposed revisions to its optional-use 
FMLA forms. 84 FR 38061. The Department created forms--WH-380-E, WH-
380-F, WH-381, WH-382, WH-384, WH-385, and WH-385-V--to assist 
employers and employees in meeting their FMLA notification and 
certification obligations. The Department's proposed revisions to the 
forms were based on feedback from employees, employers, and health care 
professionals and are designed to reduce administrative burden, 
increase compliance with regulatory requirements, and improve customer 
service. We received 139 comments from employers, industry 
associations, individual employees, worker advocacy groups, law firms, 
and other interested members of the public during the notice and 
comment process and made additional revisions to incorporate this 
feedback. Additional revisions to incorporate that feedback are in the 
process of being finalized.
    The Department notes that the new Families First Coronavirus 
Response Act (FFCRA), Public Law 116-127 (Mar. 18, 2020), which was 
passed in response to the public health emergency caused by COVID-19 
and ensures that workers are not forced to choose between their 
paychecks and the public health measures needed to combat the 
coronavirus, includes temporary amendments to the FMLA.\2\ The amended 
FMLA protections provided under the FFCRA are not addressed in this 
Request for Information, and the Department does not seek comment on 
them here. The most up-to-date information about the FFCRA is available 
at https://www.dol.gov/agencies/whd/ffcra.
---------------------------------------------------------------------------

    \2\ The FFCRA amended the FMLA to permit certain employees to 
take up to ten weeks of paid expanded family and medical leave if 
the employee is unable to work because the employee is caring for 
his or her son or daughter whose school or place of care is closed 
or whose child care provider is unavailable for reasons related to 
COVID-19. This expanded family and medical leave entitlement, which 
became effective on April 1, 2020, will expire on December 31, 2020. 
The Department's regulations implementing paid leave under the FFCRA 
appear at 29 CFR part 826; all references in this document to FMLA 
regulations refer to those that appear at 29 CFR part 825.
---------------------------------------------------------------------------

II. Request for Public Comment

    The Department is aware that its regulations need to be regularly 
reviewed to explore how such regulations can remain current with 
workplace and demographic changes. Further, the Department understands 
the need for compliance assistance, in particular in the form of 
written informational materials that provide the public with up-to-date 
information about the protections and requirements of the law in plain 
language.
    Extensive compliance assistance regarding the FMLA is currently

[[Page 43515]]

available. In particular, the Department's FMLA web pages, which 
received more than 5 million views over the last year, contain a wealth 
of material including Frequently Asked Questions, Fact Sheets, Employee 
Guides, interactive online tools, and a comprehensive Employer's Guide 
developed for human resource managers and other leave administrators. 
Additionally, while the requirements of the FMLA are set by statute and 
regulations, as part of the administration of the Act, interested 
parties may seek an opinion (i.e., an official written explanation) of 
what the FMLA requires in fact-specific situations. Opinion letters 
serve as an important means by which the public can develop a clearer 
understanding of what FMLA compliance entails. The Department has 
issued seven opinion letters \3\ on FMLA-related topics since 2018.
---------------------------------------------------------------------------

    \3\ FMLA2020-1-A (Jan. 7, 2020), available at https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/2020_01_07_1A_FMLA.pdf; FMLA2019-3-A (Sept. 10, 2019), available at 
https://www.dol.gov/whd/opinion/FMLA/2019/2019_09_10_3A_FMLA.pdf; 
FMLA2019-2-A (Aug. 8, 2019), available at https://www.dol.gov/whd/opinion/FMLA/2019/2019_08_08_2A_FMLA.pdf; FMLA2019-1-A (Mar. 14, 
2019), available at https://www.dol.gov/whd/opinion/FMLA/2019/2019_03_14_1A_FMLA.pdf; FMLA2018-2-A (Aug. 28, 2018) available at 
https://www.dol.gov/whd/opinion/FMLA/2018/2018_08_28_2A_FMLA.pdf; 
FMLA2018-1-A (Aug. 28, 2018), available at https://www.dol.gov/whd/opinion/FMLA/2018/2018_08_28_1A_FMLA.pdf; FLSA2018-19 (Apr. 12, 
2018), available at https://www.dol.gov/whd/opinion/FLSA/2018/2018_04_12_02_FLSA.pdf.
---------------------------------------------------------------------------

    Nevertheless, the results of employee and employer surveys continue 
to show an ongoing need for education and awareness in the 
administration and use of FMLA leave. Information from the public on 
what is and is not working well in the administration of the FMLA can 
further inform and guide the Department in issuing modernized tools to 
aid in understanding and applying the FMLA. As such, the Department 
seeks input from employers and employees on the current FMLA 
regulations, specifically:
     What would employees like to see changed in the FMLA 
regulations to better effectuate the rights and obligations under the 
FMLA?
     What would employers like to see changed in the FMLA 
regulations to better effectuate the rights and obligations under the 
FMLA?
    The Department invites interested parties who have knowledge of, or 
experience with, the FMLA to submit comments, information, and data to 
provide a foundation for examining the effectiveness of the current 
regulations in meeting the statutory objectives of the FMLA. The 
Department suggests the following questions to frame the responses. 
These questions are not intended to be an exclusive list of issues for 
which the Departments seeks information.
    1. A serious health condition is defined as an illness, injury, 
impairment, or physical or mental condition that involves either 
inpatient care or continuing treatment by a health care provider. See 
29 U.S.C. 2611(11); 29 CFR 825.113-.115. The regulations outline 
several types of serious health conditions involving continuing 
treatment by a health care provider: (1) Incapacity and treatment, with 
specific definitions and time-frames for the incapacity and the 
treatment; (2) pregnancy or prenatal care; (3) chronic conditions, 
which require, among other things, at least two visits for treatment by 
a health care provider per year; (4) permanent or long-term conditions; 
and (5) conditions that require multiple treatments. See 29 CFR 
825.115. Several opinion letters issued by the Wage and Hour Division 
address questions related to the definition of serious health 
condition. For example, FMLA2018-2-A, issued on August 28, 2018, 
clarified that organ donation can qualify as a serious health condition 
when it involves either inpatient care or continuing treatment as 
defined by the FMLA regulations. While information provided in the 2012 
FMLA survey indicates that most employers report that complying with 
the FMLA imposes minimal burden on their operations, the Department is 
aware that the medical certification process used to support the 
existence of a serious health condition can, at times, present 
challenges to both employers and employees.
    What, if any, challenges have employers and employees experienced 
in applying the regulatory definition of a serious health condition? 
For example, what, if any, conditions or circumstances have employers 
encountered that meet the regulatory definition of a ``serious health 
condition'' but that they believe the statute does not cover? What, if 
any, difficulties have employers experienced in determining when an 
employee has a chronic condition that qualifies as a serious health 
condition under the regulations? Conversely, what, if any, conditions 
or circumstances have employees experienced that they believe the 
statute covers, but which their employer determined did not meet the 
regulatory definition of ``serious health condition''? What, if any, 
difficulties have employees experienced in establishing that a chronic 
condition qualifies as a serious health condition under the 
regulations? The Department welcomes information that will further its 
understanding of FMLA serious health conditions so it can better 
effectuate the purposes of the Act.
    2. An employee may take FMLA leave on an intermittent basis (i.e., 
taking leave in separate blocks of time for a single qualifying reason) 
or on a reduced leave schedule (i.e., reducing the employee's usual 
weekly or daily work schedule) due to his or her own serious health 
condition, to care for an immediate family member who has a serious 
health condition, or to care for a covered servicemember with a serious 
illness or injury when such leave is medically necessary. See 29 U.S.C. 
2612(b); 29 CFR 825.202-.205. Information provided in the 2012 FMLA 
employer survey indicated that unscheduled leave, particularly 
unplanned intermittent or episodic leave, was sometimes disruptive to 
the workplace.
    What, if any, specific challenges or impacts do employers and 
employees experience when an employee takes FMLA leave on an 
intermittent basis or on a reduced leave schedule? For example, what, 
if any, specific challenges do employers experience when the timing or 
need for intermittent leave is unforeseeable? Similarly, what, if any, 
challenges do employees seeking or taking intermittent leave or using a 
reduced leave schedule experience? For example, do employees find it 
difficult to request and use intermittent leave in their workplaces? 
The Department also seeks information from employers and employees on 
best practices and suggestions to improve implementation of these 
intermittent leave provisions. The Department welcomes information that 
will further its understanding of FMLA leave usage so it can better 
effectuate the purposes of the Act.
    3. The requirements regarding the notice that an employee must 
provide to an employer of his or her need for FMLA leave are set out at 
29 U.S.C. 2612(e) and 29 CFR 825.302-.304. An employee seeking to use 
FMLA leave is required to provide 30-days advance notice of the need to 
take FMLA leave when the need is foreseeable and such notice is 
practicable. If leave is foreseeable fewer than 30 days in advance, the 
employee must notify the employer as soon as practicable--generally, 
either the same or next business day. When the need for leave is not 
foreseeable, the employee must notify the employer as soon as 
practicable under the facts and circumstances of the particular case. 
Absent unusual circumstances, an employee must comply with the 
employer's usual and customary notice

[[Page 43516]]

and procedural requirements for requesting leave. An employee must 
provide sufficient information for an employer to reasonably determine 
whether the FMLA may apply to the leave request. When an employee seeks 
leave for an FMLA-qualifying reason for the first time, the employee 
need not expressly assert FMLA rights or even mention the FMLA. When an 
employee seeks leave due to an FMLA-qualifying reason for which the 
employer has previously provided the employee FMLA-protected leave, 
however, the employee must specifically reference either the qualifying 
reason for the leave or the need for FMLA leave.
    What, if any, specific challenges do employers and employees 
experience when employees request leave or notify their employers of 
their need for leave? For example, do employees convey sufficient 
information to notify employers that the employee may have an FMLA-
qualifying reason for leave or that the employee is requesting FMLA 
leave? Similarly, are employees aware of and able to comply with their 
employers' specific procedural requirements for providing such notice? 
Are they aware of the specific information they need to provide? The 
Department welcomes suggestions of how to better assist employers and 
employees in understanding their rights and obligations under the FMLA 
regulations. The Department also specifically seeks input on additional 
tools the Department could provide to facilitate FMLA compliance.
    4. An employer may require an employee to provide a certification 
issued by a health care provider to support the need for leave for a 
serious health condition of the employee or the employee's immediate 
family member. See 29 U.S.C. 2613; 29 CFR 825.305-.308. The employer 
must allow the employee at least 15 calendar days to obtain the medical 
certification. If the employer determines the certification is 
incomplete or insufficient, the employer must advise the employee in 
writing of the additional information needed and allow the employee a 
reasonable opportunity to cure the deficiency. See 29 CFR 825.305.
    As noted above, the Department recently published in the Federal 
Register proposed revisions to the optional-use forms employers and 
employees may use to meet their FMLA notification and certification 
obligations. The Department is interested in understanding what, if 
any, challenges employers and employees have experienced with the 
medical certification process that are not addressed by those proposed 
revisions. For example, what, if any, challenges have employers 
encountered in determining whether a certification establishes that the 
employee or employee's immediate family member has a serious health 
condition under the FMLA and the amount of leave needed? Similarly, 
what, if any, challenges have employees encountered in obtaining a 
certification that contains sufficient information to establish the 
existence of a serious health condition and the amount of leave needed? 
The Department welcomes suggestions regarding strategies to address 
challenges with the certification process.
    5. As indicated above, the Department has issued seven opinion 
letters on FMLA topics since 2018. The first, FLSA2018-19, issued on 
April 12, 2018, concerned the compensability of frequent 15-minute rest 
breaks under the Fair Labor Standards Act when the breaks are necessary 
due to a serious health condition under the FMLA and concluded that 
such short periods of FMLA-protected leave may be unpaid. The letter 
noted, however, that employees are entitled to compensation for rest 
periods of short duration on the same basis as co-workers who take non-
FMLA leave breaks during a work shift. FMLA2018-1-A, issued on August 
28, 2018, addressed an employer's no-fault attendance policy which 
effectively froze, throughout the duration of an employee's FMLA leave, 
the number of attendance points that the employee accrued prior to 
taking his or her leave. The letter concluded that such a policy does 
not violate the FMLA, provided it is applied in a nondiscriminatory 
manner. As noted above, FMLA2018-2-A, also issued on August 28, 2018, 
stated that organ donation can be a qualifying serious health condition 
if it requires inpatient care or continuing treatment as defined by the 
FMLA regulations.
    Two letters addressed designation of FMLA leave. FMLA2019-1-A, 
issued on March 14, 2019, stated that an employer may not delay 
designating an employee's leave as FMLA leave if the circumstances 
qualify for FMLA leave, even if the employee prefers to delay the 
designation. The letter also stated that, while nothing prevents an 
employer from providing more generous leave policies than those 
established in the FMLA, doing so does not expand an employee's FMLA 
entitlement. Therefore, an employer may not designate more than 12 
weeks of leave as FMLA leave. FMLA2019-3-A, issued on September 10, 
2019, similarly stated that an employer may not delay designating an 
employee's leave as FMLA leave if the circumstances qualify for FMLA 
leave, in this case, even if a collective bargaining agreement provides 
that an employee may exhaust paid leave before using unpaid FMLA leave. 
However, the letter noted that the paid leave could be substituted 
(i.e., run concurrently) with the FMLA leave. This letter also stated 
that if an employer provides for the accrual of seniority when 
employees use paid leave, it must also permit employees to accrue 
seniority when they substitute FMLA leave for paid leave. FMLA2019-2-A, 
issued on August 8, 2019, concluded that a parent's need to attend an 
Individualized Education Plan meeting addressing the educational and 
special medical needs of his or her child who has a serious health 
condition is a qualifying reason for taking intermittent FMLA leave. 
FMLA2020-1-A, issued on January 7, 2020, addressed whether a combined 
general health district must count the employees of the County in which 
it is located for purposes of determining employee eligibility to take 
FMLA leave.
    The Department requests comments about whether it would be helpful 
to provide additional guidance regarding the interpretations contained 
in any of these opinion letters through the regulatory process.
    6. Please provide specific information and any available data 
regarding other specific challenges that employers experience in 
administering FMLA leave or that employees experience in taking or 
attempting to take FMLA leave. The Department welcomes any information 
on the administration and effectiveness of the current regulations and 
suggestions regarding specific strategies to address such challenges. 
The Department also welcomes information concerning best practices 
employees and employers may have experienced in using or administering 
the FMLA.

III. Conclusion

    The Department invites interested parties to submit comments and 
data during the public comment period and welcomes any pertinent 
information and data that will provide a basis for analyzing the 
effectiveness of the current regulations in meeting the statutory 
objectives of the FMLA.

List of Subjects in 29 CFR Part 825

    Administrative practice and procedure, Airmen, Employee benefit 
plans, Health, Health insurance, Labor management relations, Maternal 
and child health, Penalties, Reporting and recordkeeping requirements, 
Teachers.


[[Page 43517]]


    Signed at Washington, DC, this 6th day of July, 2020.
Cheryl M. Stanton,
Administrator, Wage and Hour Division.
[FR Doc. 2020-14873 Filed 7-16-20; 8:45 am]
BILLING CODE 4510-27-P