Family and Medical Leave Act Regulations: A Report on the Department of Labor's Request for Information, 35550-35638 [07-3102]

Agencies

• Employment Standards Administration
• Wage and Hour Division
• DEPARTMENT OF LABOR

[Federal Register Volume 72, Number 124 (Thursday, June 28, 2007)]
[Proposed Rules]
[Pages 35550-35638]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-3102]



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Part II





Department of Labor





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Employment Standards Administration



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Wage and Hour Division



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29 CFR Part 825



Family and Medical Leave Act Regulations: A Report on the Department of 
Labor's Request for Information; Proposed Rule

Federal Register / Vol. 72, No. 124 / Thursday, June 28, 2007 / 
Proposed Rules

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DEPARTMENT OF LABOR

Employment Standards Administration

Wage and Hour Division

29 CFR Part 825

RIN 1215-AB35


Family and Medical Leave Act Regulations: A Report on the 
Department of Labor's Request for Information

AGENCY: Employment Standards Administration, Wage and Hour Division, 
Department of Labor.

ACTION: Report on comments from the public.

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SUMMARY: The Department of Labor's Employment Standards Administration/
Wage and Hour Division undertook a review of the Family and Medical 
Leave Act (``FMLA'' or the ``Act'') and its regulations, and published 
a Request for Information (``RFI'') in the Federal Register on December 
1, 2006 (71 FR 69504). The RFI asked the public to assist the 
Department by furnishing information about their experiences with the 
Act and comments on the effectiveness of the FMLA regulations. More 
than 15,000 comments were submitted in response to the RFI. The 
following report summarizes comments the Department received from its 
RFI.

ADDRESSES: A complete copy of this report is also available at https://
www.dol.gov/esa/whd/fmla2007report.htm. It may also be obtained by 
writing to Richard M. Brennan, Senior Regulatory Officer, Wage and Hour 
Division, Employment Standards Administration, U.S. Department of 
Labor, Room S-3502, 200 Constitution Avenue, NW., Washington, DC 20210.

FOR FURTHER INFORMATION CONTACT: Richard M. Brennan, Senior Regulatory 
Officer, Wage and Hour Division, Employment Standards Administration, 
U.S. Department of Labor, Room S-3502, 200 Constitution Avenue, NW., 
Washington, DC 20210; telephone: (202) 693-0066 (this is not a toll 
free number).

SUPPLEMENTARY INFORMATION:

Foreword

    No employment law matters more to America's caregiving workforce 
than the Family and Medical Leave Act (FMLA) of 1993. Since its 
enactment, millions of American workers and their families have 
benefited from enhanced opportunities for job-protected leave upon the 
birth or adoption of a child, to deal with their own serious illness, 
and when needed to care for family members.
    After nearly fourteen years administering the law, two Department 
of Labor studies (1996, 2001) and several U.S. Supreme Court and lower 
court rulings, the Employment Standards Administration's Wage and Hour 
Division issued a Request for Information (RFI) on December 1, 2006.
    The RFI asked the public to comment on their experiences with, and 
observations of, the Department's administration of the law and the 
effectiveness of the regulations. More than 15,000 comments were 
received in the next few months from workers, family members, 
employers, academics, and other interested parties. This input ranged 
from personal accounts, legal reviews, industry and academic studies, 
surveys, and recommendations for regulatory and statutory changes to 
address particular areas of concern.
    There is broad consensus that family and medical leave is good for 
workers and their families, is in the public interest, and is good 
workplace policy. There are differing views on whether every provision 
of the law is being administered in accordance with the statute and 
with congressional intent. It is also evident from the comments that 
the FMLA has produced some unanticipated consequences in the workplace 
for both employees and employers.
    A report of this kind is a unique step. Normally, the organization 
of comments received in response to a Departmental Request for 
Information would first be seen accompanying proposed changes to the 
rules. There are no proposals for regulatory changes being put forward 
by the Department with this Report. Rather, what we hope this Report 
does is provide information for a fuller discussion among all 
interested parties and policymakers about how some of the key FMLA 
regulatory provisions and their interpretations have played out in the 
workplace.
    Finally, our thanks to the thousands of employees, employers, and 
other members of the public who participated in this information 
gathering by sharing their views, their research, and, in some cases, 
very personal comments. We greatly value those insights.

Victoria A. Lipnic,

Assistant Secretary of Labor, Employment Standards Administration.

    June 2007.

Executive Summary

    The Family and Medical Leave Act of 1993 (FMLA) opened a new era 
for American workers, providing employees with better opportunities to 
balance work and family needs. This landmark legislation provided 
workers with basic rights to job protection for absences due to the 
birth or adoption of a child or for a serious health condition of the 
worker or a family member.
    For women dealing with difficult pregnancies or deliveries, or 
parents celebrating the arrival of a newborn or adopted child, the FMLA 
provides the opportunity to participate fully in these significant life 
events. For other workers--especially those who struggle with health 
problems or who are primary caregivers to ill family members--the FMLA 
has made it possible to deal with these serious challenges while 
holding on to jobs, health insurance, and some measure of economic 
security.

Background: What the Law Covers

    The Family and Medical Leave Act of 1993, Public Law 103-3, 107 
Stat. 6 (29 U.S.C. 2601 et seq.) (the ``FMLA'' or the ``Act'') was 
enacted on February 5, 1993 and became effective on August 5, 1993 for 
most covered employers. The FMLA entitles eligible employees of covered 
employers to take up to a total of twelve weeks of unpaid leave during 
a twelve month period for the birth of a child; for the placement of a 
child for adoption or foster care; to care for a newborn or newly-
placed child; to care for a spouse, parent, son or daughter with a 
serious health condition; or when the employee is unable to work due to 
the employee's own serious health condition. See 29 U.S.C. 2612. The 
twelve weeks of leave may be taken in a block, or, under certain 
circumstances, intermittently or on a reduced leave schedule. Id. When 
taken intermittently, the Department's regulations provide that leave 
may be taken in the shortest increment of time the employer's payroll 
system uses to account for absences or use of leave, provided it is one 
hour or less. 29 CFR 825.203(d).
    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. If an employee 
believes that his or her FMLA rights have been violated, the employee 
may file a complaint with the Department of Labor (``Department'') or 
file a private lawsuit in federal or state court. If the employer has 
violated an employee's FMLA rights, the employee is entitled to 
reimbursement for any monetary loss

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incurred, equitable relief as appropriate, interest, attorneys' fees, 
expert witness fees, and court costs. Liquidated damages also may be 
awarded. See 29 U.S.C. 2617.

Who the Law Covers

    The law generally covers employers with 50 or more employees, and 
employees must have worked for the employer for 12 months and have 
1,250 hours of service during the previous year to be eligible for 
leave. Based on 2005 data, the latest year for which data was available 
the time the Request for Information was published, the Department 
estimates that:
     There were an estimated 94.4 million workers in 
establishments covered by the FMLA regulations,
     There were about 76.1 million workers in covered 
establishments who met the FMLA's requirements for eligibility,\1\ and
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    \1\ Recent data submitted to the Department on the size and 
scope of the FMLA's reach support these estimates. See Chapter XI of 
this Report.
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     Between 8.0 percent and 17.1 percent of covered and 
eligible workers (or between 6.1 million and 13.0 million workers) took 
FMLA leave in 2005.\2\
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    \2\ Recent data submitted to the Department support this 
estimate as well. See Chapter XI of this Report.
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     Nearly one-quarter of all employees who took FMLA leave 
took at least some of it intermittently.
    Recent information submitted to the Department also suggests that 
FMLA awareness was higher in 2005 than in prior years. This information 
supports the Department's estimate of increased FMLA usage since prior 
studies of FMLA.

Request for Information and Prior FMLA Reports

    After nearly fourteen years of experience implementing and 
administering the new law, the Department's Employment Standards 
Administration/Wage and Hour Division undertook a review of the FMLA 
regulations, culminating in the publication of a Request for 
Information (``RFI'') on December 1, 2006.\3\ The RFI asked the public 
to assist the Department by furnishing information about their 
experiences with FMLA and comments on the effectiveness of the current 
FMLA regulations. The RFI generated a very heavy public response: More 
than 15,000 comments were submitted, many of which were brief emails 
with very personal and, in some cases, very moving accounts from 
employees who had used family or medical leave; others were highly-
detailed and substantive legal or economic analyses responding to the 
specific questions in the RFI and raising other complex issues.\4\
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    \3\ 71 FR 69504.
    \4\ All comments are available for viewing via the public docket 
of the Wage and Hour Division of the Employment Standards 
Administration, U.S. Department of Labor, 200 Constitution Avenue, 
NW., Washington, DC 20210. Many comments are also available on 
www.regulations.gov. The names of individual employees have been 
redacted from the Report where any personal medical information was 
shared.
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    Twice before, the Department has published reports about the FMLA 
and its use. The statute established a bipartisan Commission on Family 
and Medical Leave to study family and medical leave policies. The 
Commission surveyed workers and employers in 1995 and issued a report 
published by the Department in 1996, ``A Workable Balance: Report to 
Congress on Family and Medical Leave Policies.'' In 1999, the 
Department contracted with Westat, Inc. to update the employee and 
establishment surveys conducted in 1995. The Department published that 
report, ``Balancing the Needs of Families and Employers: Family and 
Medical Leave Surveys, 2000 Update'' in January 2001.\5\
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    \5\ See ``Balancing the Needs of Families and Employers, Family 
and Medical Leave Surveys, 2000 Update,'' Westat Inc., January 2001. 
See also the description of the 2000 Westat Report in Chapter XI of 
this Report. See also 71 FR 69510.
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    Never before has the Department looked in such granular detail at 
the legal developments surrounding the FMLA and its implementing 
regulations, as well as the practical consequences of such in the 
workplace. The RFI's questions and subject areas were derived from a 
series of stakeholder meetings the Department conducted in 2002-2003, a 
number of rulings of the U.S. Supreme Court and other federal courts, 
the Department's own experience administering the law, information from 
Congressional hearings, and public comments filed with the Office of 
Management and Budget (OMB) as described by OMB in their three annual 
reports to Congress on the FMLA's costs and benefits.\6\
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    \6\ The 2001 report may be found at: www.whitehouse.gov/omb/
inforeg/costbenefitreport.pdf, the 2002 report at: 
www.whitehouse.gov/omb/inforeg/2002_report_to_congress.pdf, and 
the 2004 report at: www.whitehouse.gov/omb/inforeg/2004_cb_
final.pdf.
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    Unlike the 2000 Westat Report, the Department's Report on the RFI 
Comments is not an analysis or comparison of one set of survey data 
with another some years later. The RFI was not meant to be a substitute 
for survey research about the leave needs of the workforce and leave 
policies offered by employers. The record presented here is different 
than the previous two Departmental reports because the RFI was a very 
different kind of information-gathering tool than the two previous 
surveys. Given the differences in data-gathering approaches, the depth 
with which the RFI looked at the regulations, and, of course, the self-
selection bias by those who took the time to submit comments to the 
RFI, differences in the outcomes should be expected. Care must be taken 
to avoid improper comparisons of information collected in the RFI with 
data from the two surveys.

General Overview of the Report

    Commenters consistently stated that the FMLA is generally working 
well--at least with respect to leave related to the birth or adoption 
of a child or for indisputably ``serious'' health conditions. Responses 
to the RFI substantiate that many employees and employers are not 
having noteworthy FMLA-related problems. However, employees often 
expressed a desire for a greater leave entitlement, while employers 
voiced concern about their ability to manage business operations and 
attendance control issues, particularly when unscheduled, intermittent 
leave is needed for chronic health conditions. Indeed, the overwhelming 
majority of comments submitted in response to the RFI addressed three 
primary topics: (1) Gratitude from employees who have used family and 
medical leave and descriptions of how it allowed them to balance their 
work and family care responsibilities, particularly when they had their 
own serious health condition or were needed to care for a family 
member; \7\ (2) a desire for expanded benefits--e.g., to provide more 
time off, to provide paid benefits, and to cover additional family 
members; \8\ and (3) frustration by employers about difficulties in 
maintaining necessary staffing levels and controlling attendance 
problems in their workplaces as a result of one particular issue--
unscheduled intermittent leave used by employees who have chronic 
health conditions.
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    \7\ Many of these employee comments stated that there were no 
problems with FMLA and there should be no changes to the program.
    \8\ Because comments on the need for expanded benefits concern 
matters outside the scope of the Department's authority and the 
purposes of the RFI, these comments are not covered in any 
significant detail in this Report.
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    Many employees offered powerful testimonials about the important 
role the FMLA has played in allowing them to continue working while 
addressing their own medical needs or family caregiving 
responsibilities. Chapter I,

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Employee Perspectives: Experiences in the Value of FMLA, is an 
important representative example of how meaningful the ability to use 
the Family and Medical Leave Act has been for employees. The Department 
could have written an entire report based simply on those comments.
    But, no regulatory scheme, particularly at the outset, is perfect. 
In 1993, the FMLA was a brand-new employment standard and many of the 
concepts, particularly those that took effect in the final regulations, 
were borrowed from other areas of law or were completely new. Thus, it 
should come as no surprise that RFI commenters continued to debate some 
of the choices made by the Department as it sought to implement the 
statute in a manner consistent with Congressional intent.
    As is evident from both the RFI record and from many of the legal 
challenges to regulatory provisions over the years, the debate 
continues on whether the Department successfully implemented the 
statutory requirements and Congressional intent, or struck the right 
balance in all places. That debate is reflected in Chapters II-XI. In 
many instances, commenters expressed the view that a certain regulation 
was ``exactly what Congress intended,'' while others said of the same 
regulation that ``it could not possibly be what Congress intended.'' 
Because of that, in order to provide context to the comments received, 
in many chapters legal background is provided and/or the evolution of a 
particular regulatory section is retraced through the rulemaking 
process. Indeed, many commenters did the same thing. While this is in 
some cases done in great detail, without that history it may be 
impossible to understand not just what suggestions are being offered, 
but why they are being offered. These historical summaries are not 
intended to endorse the legitimacy of any particular comment or 
suggestion.
    As explained in the RFI, some of the issues brought to the 
attention of the Department in various forums over the years are beyond 
the statutory authority of the Department to address.\9\ Nonetheless, 
many commenters provided suggestions for statutory changes to expand 
the FMLA. Among others, and in no particular order, were comments on: 
providing paid maternity leave, covering the care of additional family 
members (e.g., siblings), changing the 75-mile eligibility test, 
reducing the coverage threshold below 50 employees, and providing 
coverage for part-time workers. Because these comments are beyond the 
Department's authority to address, we do not detail them in the 
chapters that follow.
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    \9\ See 71 FR 69504.
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    Finally, this Report is not a catalogue of every comment received 
or every suggestion made about every part of the regulations. Nor is it 
a catalogue of every organization or group that submitted comments. We 
do believe that the comments selected for discussion are representative 
and the chapters that follow accurately reflect the record according to 
the most important subject matters presented--many of which, but not 
all, follow and detail the subjects and questions asked in the RFI. The 
chapters are designed to explain the questions asked in the RFI, 
provide background on the law where needed, and detail the feedback 
about the FMLA and the Department's implementation of it as raised in 
comments from employees and employers.
    Given the detailed presentations in many of the responses to the 
RFI, and when the comments are read and studied in the aggregate, 
certain observations about the record stand out. Those observations 
follow in this Executive Summary or are found in Chapter XI: ``Data: 
FMLA Coverage, Usage, and Economic Impact''. We believe the 
observations included in this Report are evident from a plain reading 
of the thousands of comments received from both employers and 
employees.

The Department's Observations Regarding the Comments

    The Department is pleased to observe that, in the vast majority of 
cases, the FMLA is working as intended. For example, the FMLA has 
succeeded in allowing working parents to take leave for the birth or 
adoption of a child, and in allowing employees to care for family 
members with serious health conditions. The FMLA also appears to work 
well when employees require block or foreseeable intermittent leave 
because of their own truly serious health condition. Absent the 
protections of the FMLA, many of these workers might not otherwise be 
permitted to be absent from their jobs when they need to be.
    At the same time, a central defining theme in the comments involves 
an area that may not have been fully anticipated: The prevalence with 
which unscheduled intermittent FMLA leave would be taken in certain 
workplaces or work settings by individuals who have chronic health 
conditions. This is the single most serious area of friction between 
employers and employees seeking to use FMLA leave. The Department is 
cognizant that certain of its regulatory decisions and interpretations 
may have contributed to this situation.
    Certain types of industries and worksites and their workers appear 
to be more impacted by unscheduled intermittent FMLA leave-taking than 
others and there is considerable tension between employers and 
employees over the use of this leave. The Department heard, in 
particular, from employers, and from the representatives of employees 
who work with them, whose business operations have a highly time-
sensitive component, e.g., delivery, transportation, transit, 
telecommunications, health care, assembly-line manufacturing, and 
public safety sectors.
    While many employer comments used the words ``abuse'' and 
``misuse'' to describe employee use of unscheduled intermittent leave, 
the Department cannot assess from the record how much leave taking is 
actual ``abuse'' and how much is legitimate. In some cases, the use of 
unscheduled intermittent leave appears to be causing a backlash by 
employers who are looking for every means possible (e.g., repeatedly 
asking for more information in the medical certifications, especially 
in cases of chronic conditions) to reduce absenteeism.
    Another area that generated significant comments is the current 
medical certification process. The Department recognizes that 
communication about medical conditions is essential to the smooth 
functioning of the FMLA in workplaces. However, none of the parties 
involved with the medical certification process--employers, employees, 
and health care providers--are happy with the current system. Employees 
are concerned about the time and cost of visits to health care 
providers to obtain medical certifications and the potential for 
invasion of their privacy. Employers, especially when it comes to 
intermittent leave use, seek predictability in attendance and are 
frustrated with medical certifications that do not provide meaningful 
guidance. Health care providers complain they cannot predict how many 
times a flare-up of a particular condition will occur.
    Despite much work by the Department, it also appears that many 
employees still do not fully understand their rights under the law, or 
the procedures they must follow when seeking FMLA leave. For example, 
many employees are misinformed about the fact that paid leave can be 
substituted for, and run concurrently with, an employee's FMLA leave. 
Even

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among employees who possess a general awareness of the law, many do not 
know how the FMLA applies to their individual circumstances. In turn, 
this failure in understanding may be contributing to some of the 
problems identified with the medical certification process, and with 
employers' ability to properly designate and administer FMLA leave. It 
is clear the Department has more work to do to further educate 
employees and employers regarding their rights and responsibilities 
under the law.

Summary of Chapters I-XI

Employee Perspective: Experiences in the Value of the FMLA (Chapter I)
    Chapter I provides a representative sampling of comments received 
by the Department regarding the ``value'' FMLA provides to employees. 
In general, employees commented they were very happy to have the 
protections afforded by the FMLA. Many commented that the Act prevented 
job loss, allowed them to spend time with sick or injured family 
members, and, upon returning to work, encouraged a greater sense of 
loyalty to their employer. Some pointed out that their employers went 
above and beyond what is required by the law. Many employers also 
submitted comments that outlined advantages to complying with the FMLA 
and offering benefits beyond what the law requires.
    The value of the FMLA was particularly noted by employees caring 
for both children and parents with serious health conditions; this 
observation was supported by employer comments, many of whom noted that 
they increasingly receive FMLA leave requests from employees with elder 
care responsibilities. Many employees commented that the FMLA would be 
more useful if it provided paid leave, if more time off was available, 
and if the program covered more types of family members, such as 
siblings, grandparents, etc.
Ragsdale Decision/Penalties (Chapter II)
    This chapter discusses the impact of the Supreme Court's decision 
in Ragsdale v. Wolverine World Wide, Inc. on the FMLA implementing 
regulations. Ragsdale invalidated the ``categorical penalty'' in 
section 825.700(a) of the regulations, which provides that if an 
employer does not designate an employee's leave as FMLA leave, it may 
not count that leave against an employee's leave entitlement. Other 
courts have struck down similar ``categorical penalty'' rules in 
sections 825.110(d) (relating to deeming an employee eligible for 
leave) and 825.208(c) (relating to designation of paid leave). Since 
Ragsdale, many courts have applied equitable estoppel \10\ principles 
when employers either fail to communicate required information or 
communicate incorrect information.
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    \10\ ``Equitable estoppel'' is a legal bar that prevents one 
person from taking advantage of a second person where the second 
party is injured by reasonably relying on the misrepresentations (or 
silence when there is a duty to speak) of the first person.
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    Employers commented that all categorical penalties should be 
removed from the regulations and that employers should be permitted to 
designate leave as FMLA leave retroactively. Some employers suggested 
that any penalty should be tailored to the specific harm suffered by 
the employee or suggested situations in which no penalty would be 
appropriate. Employees supported the current notice and designation 
requirements in the Department's regulations, with many noting that 
they suffer hardships when they do not know promptly whether the 
employer believes they are entitled to FMLA-protected leave. Some 
employee commenters suggested that employers be required to provide 
annual notices to employees regarding their FMLA eligibility status and 
periodic reports regarding any FMLA leave used. Employers expressed 
concerns that without some clarification they are unsure of their 
liabilities for failure to follow the notification requirements. Both 
groups expressed a need for the Department to clarify the impact of 
Ragsdale on the notification requirements in the current regulations.
Serious Health Condition (Chapter III)
    The Department received many comments on the regulatory definition 
of serious health condition relating to a period of incapacity of more 
than three consecutive calendar days and treatment two or more times by 
a health care provider (sometimes called the ``objective test'') 
contained at 29 CFR 825.114(a)(2)(i) and its interaction with 29 CFR 
825.114(c) (which provides examples of conditions that ordinarily are 
not covered). Chapter III summarizes these comments. Many of these 
comments echoed (or had their origins in) earlier comments to the 
record the Department received in 1993 when promulgating its current 
regulations.
    The Department received many comments from employees and employee 
groups who believe that the objective test is a good, clear test that 
is serving its intended purpose, consistent with the legislative 
history, while a common theme from many employers was that the 
regulatory definition of serious health condition is vague and/or 
confusing. Moreover, comments from employer groups complained that 
there is no real requirement that a health condition be ``serious'' in 
the regulatory definition of serious health condition.
    Many employee representatives felt section 825.114(c) imposes no 
independent limitation on the definition of serious health condition 
and therefore need not be changed. Other commenters took the very 
opposite tack--that the objective test extinguished Congress' intent to 
exclude minor illnesses and that the Department should breathe life 
into subsection (c) by making it more of a per se rule, as it was 
initially interpreted by Wage and Hour Opinion Letter FMLA-57 (Apr. 7, 
1995).
    Some employers offered to give meaning to subsection (c) by 
changing the period of incapacity in the objective test from 
``calendar'' days to ``business'' days. Still other commenters 
suggested that the Department maintain the substantive language of both 
regulatory sections but explicitly adopt a recent court interpretation 
of the regulations that the ``treatment two or more times by a health 
care provider'' in section 825.114(a)(2)(i)(A) must occur during the 
period of ``more than three days'' incapacity. Some commenters 
suggested reconciling the two regulatory provisions by simply 
tightening the requirements for qualifying for a serious health 
condition under the objective test (e.g., increasing the number of days 
of incapacity required).
Unscheduled Intermittent Leave (Chapter IV)
    Chapter IV of the Report discusses the use of unscheduled 
intermittent leave under FMLA. Based on the comments received, 
unscheduled intermittent FMLA leave is crucial to employees with 
chronic serious health conditions resulting in sudden, unpredictable 
flare-ups. Conversely, it is precisely the use of unscheduled (or 
unforeseeable) intermittent leave for chronic conditions that presents 
the most serious difficulties for many employers in terms of 
scheduling, attendance, productivity, morale, and other concerns. With 
respect to employer comments, no other FMLA issue even comes close.
    The Act itself does not provide a definition of ``chronic'' serious 
health conditions. During the 1993-1995 notice-and-comment rulemaking 
phase, the Department filled in this gap, as the regulatory definition 
of ``serious health condition'' evolved in response to public comments 
urging that this

[[Page 35554]]

definition specifically cover chronic conditions.
    Regarding intermittent leave, the Act provides for the taking of 
leave in small blocks, or intermittently, but does not specify the 
minimum increment. 29 U.S.C. 2612(b)(1). In its regulations, the 
Department rejected any minimum limitations on intermittent leave, 
citing the statute, and stating a concern that such limits would cause 
employees to take leave in greater amounts than necessary, and thus 
erode a worker's 12-week leave entitlement. 60 FR 2236. The Department 
also predicted initially that incidents of unscheduled intermittent 
leave would be unusual. 58 FR 31801.
    The Act sets out a clear, 30-day notice requirement for leave that 
is foreseeable, but for leave foreseeable less than 30 days in advance, 
the Act has a less clear, ``as soon as practicable'' notice 
requirement. 29 U.S.C. 2612(e)(2)(B). The Department, through its 
interpretive actions, has defined ``as soon as practicable'' to mean 
two working days after the need for leave becomes known.\11\
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    \11\ See Wage and Hour Opinion Letter FMLA-101 (Jan. 15, 1999).
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    Fourteen years later, the comments indicate that unscheduled 
intermittent FMLA leave for chronic conditions has become commonplace 
and it is difficult for employers to determine or monitor employees' 
incapacity when the chronic condition does not involve any active, 
direct treatment or care by a health care provider (i.e., self-
treatment by employees with chronic conditions such as asthma, 
diabetes, migraine headaches, and chronic back pain).
    Employers expressed frustration about what they perceive to be 
employees' ability to avoid promptly alerting their employers of their 
need to take unscheduled leave in situations when it is clearly 
practicable for them to do so. A common example cited by employers 
involves ignoring mandatory shift call-in procedures even when the 
employee is fully able to comply, and then later reporting the absence 
as FMLA-qualifying after-the-fact. Thus, some employers allege, 
employees may use FMLA: (1) As a pretext for tardiness or to leave work 
early for reasons unrelated to a serious health condition, (2) to 
obtain a preferred shift instead of the one assigned by the employer, 
or (3) to convert a full-time position to a permanent part-time one. 
These employers believe the Department's regulatory interpretations 
have exacerbated this situation.
    Other commenters said that when an employer is unable to verify 
that an employee's unscheduled absence is in fact caused by a chronic 
serious health condition, and the employer cannot seek additional 
medical verification of the need for the absence, the employer cannot 
distinguish between employees who legitimately need FMLA leave and 
employees who misuse the protections of FMLA to excuse an otherwise 
unexcused absence from work.
Notice: Employee Rights and Responsibilities (Chapter V)
    Chapter V of the Report summarizes comments received regarding the 
FMLA rights and responsibilities of employees. The comments to the RFI 
indicate that many employees are not knowledgeable about their rights 
and responsibilities under the FMLA. Even among employees who possess a 
general awareness of the law, many do not know how the FMLA applies to 
their individual circumstances. This reported lack of employee 
awareness may contribute to frustrations voiced by the employer 
community concerning employee notice of the need for FMLA leave. 
Employers and their representatives commented on employees not 
providing notice of the need for leave in a timely fashion and 
receiving notice without sufficient information to make a determination 
as to whether or not the leave is FMLA-qualifying.
The Medical Certification and Verification Process (Chapter VI)
    The Department received significant comments regarding the FMLA 
medical certification process. These comments are discussed in Chapter 
VI. Generally speaking, all parties involved in the certification 
process--employees, employers and health care providers--believed the 
current process needs to be improved.
    Many employers commented that they are frustrated with 
certifications that do not provide meaningful guidance regarding the 
employee's expected use of intermittent leave. They also noted that the 
current regulatory framework provides them with limited options for 
verifying that employees are using FMLA leave for legitimate reasons. 
Employers also stated they want to be able to talk directly with the 
employee's health care provider (without using a health care provider 
of their own) and feel that greater communication would allow decisions 
regarding FMLA coverage to be made more quickly.
    Employees commented that employers are not using the existing FMLA 
procedures appropriately to challenge medical certifications and are 
instead simply refusing to accept certifications without seeking 
clarification or a second opinion. Some employees also claimed that 
their use of unscheduled intermittent leave for chronic conditions 
seems to be causing a backlash among some employers who refuse FMLA 
coverage for any absences that exceed what is on the medical 
certification. Employees also expressed concern that increased 
communication between the employer and their health care providers 
could lead to an erosion of their right to medical confidentiality.
    Finally, although the certification requirement calls for an 
estimate of the expected use of intermittent leave, health care 
providers commented that often there is no way they can furnish a 
reliable estimate of the frequency or severity of the flare ups and 
thus are unable to provide all the information required in the 
certification. Based on the comments received, employers, employees and 
health care providers almost universally believe the Department's model 
certification form WH-380 could be improved.
Interplay Between the FMLA and the Americans with Disabilities Act 
(Chapter VII)
    A number of commenters discussed the relationship between the FMLA 
and the Americans with Disabilities Act (``ADA'').\12\ Although the ADA 
also may provide employees with job-protected medical leave, the 
legislative history of the FMLA indicates that Congress intended for 
``the leave provisions of the [FMLA to be] * ** wholly distinct from 
the reasonable accommodation obligations of employers covered under the 
[ADA].'' \13\ Nonetheless, the Department borrowed several important 
concepts from the ADA when finalizing the FMLA regulations. The 
practical realities of the workplace also mean that employee requests 
for medical leave often are covered by both statutes, thus requiring 
employers to consider carefully the rights and responsibilities imposed 
by each statute. Chapter VII summarizes the comments received by the 
Department regarding the interplay between FMLA and ADA.
---------------------------------------------------------------------------

    \12\ 42 U.S.C. 12101-12117, 12201-12213.
    \13\ S. Rep. No. 3, 103d Cong., 1st Sess. 38 (1993).
---------------------------------------------------------------------------

    Almost uniformly, employers and their representatives urged the 
Department to consider implementing more consistent procedures for 
handling and approving medical leave requests under the FMLA and ADA. 
These commenters argued that, in many instances--but particularly with 
respect to obtaining medical information--the ADA and its implementing 
regulations provided a ``much better model'' and struck a more 
appropriate balance between an employee's right to take

[[Page 35555]]

reasonable leave for medical reasons and the legitimate interests of 
employers. Many of these commenters cited their own experience in 
administering the ADA as support for the idea that additional limits 
imposed by the FMLA were unnecessary, particularly because both 
statutes require employers to review similar types of medical 
information and make determinations about an employee's ability to work 
based on that information. These commenters also noted that, in many 
instances, the same human resources person reviews an employee's 
absences under both statutes, thus further blurring the line between 
what an employer could permissibly do under each statute.
    Other commenters, including unions and other employee groups, 
argued that the differences between the two statutory schemes were a 
direct result of the distinctively different purposes of each law. 
These commenters noted that the ADA is intended to ensure that 
qualified individuals with disabilities are provided with equal 
opportunity to work, while the FMLA's purpose is to provide reasonable 
leave from work for eligible employees. These commenters generally 
opposed implementing procedures they viewed as placing additional 
limits on the availability of FMLA leave, or increasing requirements 
under the FMLA medical certification process.
Transfer to an Alternative Position (Chapter VIII)
    The RFI did not specifically ask any questions about an employer's 
ability to transfer an employee to an ``alternative position'' but the 
Department received many comments on this topic. These comments are 
discussed in Chapter VIII of the Report. Under the FMLA, an employer 
may transfer an employee to an ``alternative position'' with equivalent 
pay and benefits when the employee needs to take intermittent or 
reduced schedule leave ``that is foreseeable based on planned medical 
treatment[.]'' 29 U.S.C. 2612(b)(2). Section 825.204 of the regulations 
explains more fully when an employer may transfer an employee to an 
alternative position in order to accommodate foreseeable intermittent 
leave or a reduced leave schedule.
    A significant number of employer commenters questioned why the 
regulations only permit an employer to transfer an employee when the 
employee's need for leave is foreseeable based on planned medical 
treatment as opposed to a chronic need for unforeseeable (unscheduled) 
leave. Many commenters saw no practical basis for differentiating 
between foreseeable and unforeseeable need for leave in this context. 
In fact, many employers reported that the underlying rationale for the 
transfer provision--to provide ``greater staffing flexibility'' while 
maintaining the employee's same pay and benefits--is best served where 
the employee's need for leave is unforeseeable.
Substitution of Paid Leave (Chapter IX)
    Chapter IX of the Report summarizes comments regarding the 
substitution of paid leave for unpaid FMLA leave. Under the statute, 
employees may substitute accrued paid leave for FMLA leave under 
certain circumstances. If employees forego the option to substitute 
paid leave, employers may then require such substitution.\14\ The 
legislative history indicates that Congress had two purposes in 
providing for the substitution of accrued paid leave for unpaid FMLA 
leave. First, Congress sought to clarify that where employers provided 
paid leave for FMLA-covered reasons, they were only required to provide 
a total of 12 weeks of FMLA-protected leave including the period of 
paid leave (i.e., employees could not stack 12 weeks of unpaid FMLA 
leave on top of any accrued paid leave provided by the employer). The 
second purpose of substitution of paid leave was to mitigate the 
financial impact of income loss to the employee due to family or 
medical leave.
---------------------------------------------------------------------------

    \14\ 29 U.S.C. 2612(d).
---------------------------------------------------------------------------

    A major concern of the employer commenters was that when employees 
substitute paid vacation or personal leave for unpaid FMLA leave, they 
are able to circumvent certain aspects of employers' existing paid 
leave policies, such as notification requirements, minimum increments 
of leave, seniority, or time of year restrictions. These commenters 
stated that employees substituting such paid leave for unpaid FMLA 
leave are, therefore, treated more favorably than those employees who 
use their accrued leave for other reasons. Employee commenters noted 
that the ability to substitute paid leave is a critical factor in their 
ability to utilize their FMLA entitlements, because many employees 
simply cannot afford to take unpaid leave.
    The comments also identified a number of other issues affected by 
substitution of paid leave. For example, employers questioned the 
wisdom of the regulation forbidding substitution if employees are 
receiving payments from a benefit plan such as workers' compensation or 
short-term disability plans. On the other hand, employees commented 
that they are improperly required by employers to substitute paid 
leave, despite contrary language in existing collective bargaining 
agreements providing employees with the right to decide when to use 
their leave.
Joint Employment (Chapter X)
    Chapter X of the Report discusses comments regarding employer 
coverage under FMLA in cases in which a company utilizes the services 
of a Professional Employer Organization (PEO). Unlike a staffing or 
placement agency, PEOs generally are service providers that handle 
payroll and other human resource work for the employer and which, under 
the current regulations, may qualify in some circumstances as a primary 
employer in a joint employment arrangement.
    The comments indicated that PEOs generally are not responsible for 
employment decisions like hiring, firing, supervision, etc. All of the 
comments in this area supported the view that the primary ``employer'' 
in these cases should be the client company that actually hires and 
uses the employees who are provided benefit services by the PEO. Thus, 
according to these comments, the client company, and not the PEO, 
should be responsible for the placement of employees returning from 
FMLA leave.
Data: FMLA Coverage, Usage, and Economic Impact (Chapter XI)
    The Department received a significant number of comments on the 
usage and impact of the FMLA, including a variety of national surveys 
and numerous data on FMLA leave from individual companies or government 
and quasi-government agencies. This information, when supplemented by 
the data from the 2000 Westat Report (and despite its limitations), 
provides considerable insight and a far more detailed picture of the 
workings of the FMLA, and the impact of intermittent leave, in 
particular. Chapter XI of this Report provides a full discussion of the 
data received.
    Several themes arose out of the data comments submitted in response 
to the RFI:
     The benefits of FMLA leave include retaining valuable 
human capital; having more productive employees at work; lower long-run 
health care costs; lower turnover costs; lower presenteeism costs; and 
lower public assistance costs.
     There are unquantifiable impacts on both sides. On the 
benefit side, the value of FMLA leave is often immeasurable. On the 
cost side, there

[[Page 35556]]

can be a negative impact on customers and the public when workers do 
not show up for their shifts on time.
     A significant number of workers, especially for some 
facilities or workgroups, have medical certifications on file for 
chronic health conditions, and the number is increasing.
     Unscheduled intermittent FMLA leave causes staffing 
problems for employers requiring them to overstaff some positions and 
use mandatory overtime to cover other positions. Both of these increase 
costs and prices.
     The lack of employee notification can cause some positions 
to go temporarily understaffed resulting in service or production 
delays. This not only increases costs in the short run but also may 
potentially impact future business.
     Unscheduled intermittent FMLA leave can adversely impact 
the workplace in a variety of ways, including missed holidays and time-
off for other employees, lower morale, and added stress that can result 
in health problems.
    Further, it appears that the Department's intermittent FMLA leave 
estimates presented in the RFI--that about 1.5 million workers took 
intermittent FMLA leave in 2005, and that about 700,000 of these 
workers took unscheduled intermittent FMLA leave--may be too low.
    While the percentage of FMLA covered and eligible workers who take 
FMLA leave may appear to be low relative to the total workforce and the 
percentage who take unscheduled intermittent leave may appear to be 
even smaller, the record shows that these workers can have a 
significant impact on the operations of their employers and their 
workplaces for a variety of reasons. First, as a number of commenters 
pointed out, these workers can repeatedly take unscheduled intermittent 
leave, over nine hours per week, and still not exhaust their allocation 
of FMLA leave for the year (generally, 12 weeks x 40 hours/week = 480 
hours). Second, the record reveals that workplaces with time-sensitive 
operations, such as assembly-line manufacturing, transportation, 
transit, and public health and safety occupations can be 
disproportionably impacted by just a few employees who repeatedly take 
unscheduled intermittent leave. Third, the comments indicate that if 
the morale or health of workers covering for the absent employees on 
FMLA leave begins to suffer, either because they believe the absent 
workers are misusing unscheduled intermittent leave or from the stress 
caused by an increased workload, these workers may in turn seek and 
need their own FMLA certifications causing a ripple effect in 
attendance and productivity.
    Finally, the data indicate that if unscheduled intermittent FMLA 
leave is taken, most employers will be able to resolve these infrequent 
low cost events on a case-by-case basis by using the existing workforce 
(or possibly bringing in temporary help) to cover for the absent 
worker, and likely will view unscheduled intermittent FMLA leave as an 
expected cost of business. On the other hand, for those establishments 
and workgroups with a high probability (rate) of unscheduled 
intermittent leave and where the cost of such leave is high, the 
comments suggest that none of the measures that are typically used to 
reduce the risk and costs associated with unscheduled intermittent FMLA 
leave appear to work very well. These establishments, whose risk 
management systems (e.g., absence control policies, overstaffing, 
mandatory overtime) appear to be overwhelmed, are likely the employers 
reporting that intermittent FMLA leave has a moderate to large negative 
impact on their productivity and profits (1.8 to 12.7 percent of 
establishments according to the 2000 Westat Report). In addition, many 
of the traditional methods used to encourage good attendance or control 
absenteeism (e.g., perfect attendance awards or no fault attendance 
polices) may not be used if they interfere with FMLA protected leave. 
These employers may try to make it more difficult for their workers to 
take unscheduled intermittent FMLA leave by repeatedly questioning the 
medical certifications or asking for recertifications--creating tension 
in the workplace.

Conclusion

    In those sections of the FMLA dealing with leave for the birth of a 
child, for the adoption of a child, and associated with health 
conditions that require blocks of leave and are undeniably ``serious'' 
(e.g., cancer, Alzheimer's, heart attack), the law appears to be 
working as anticipated and intended, and working very successfully. 
When addressing these areas, there is near unanimity in the comments--
FMLA leave is a valuable benefit to the employee, improves employee 
morale, improves the lives of America's families, and, as a result, 
benefits employers. These aspects of the FMLA are fully supported by 
workers and their employers.
    But to the extent that the use of FMLA leave has continued to 
increase in unanticipated ways, primarily in the area of intermittent 
leave taken as self-treatment for chronic serious health conditions, 
the Department has heard significant concerns. These unanticipated 
facets of the FMLA are the source of considerable friction in the 
following areas:
     How serious is ``serious''?
     What does ``intermittent'' leave mean and how long should 
it go on?
     What are the rules surrounding unforeseeable leave?
     How much information can an employer require before 
approving leave?
     What are an employee's responsibilities under the Act?
     What workplace rules may an employer actually enforce?
     How has other legislation, including the ADA and HIPAA, 
affected the FMLA?
    Absent the protections of the FMLA, many workers with chronic 
conditions might not otherwise be permitted to be absent from their 
jobs. This is unquestionably a valuable right. But it is precisely the 
use of FMLA leave by a subset of these workers--those seeking 
unscheduled intermittent leave for a chronic condition--that appears to 
present the most serious difficulties for many employers in terms of 
scheduling, attendance, productivity, morale, and other concerns. As 
was clear from the record, these comments are not inconsistent with 
each other. These things are true at the same time.
    The success of the FMLA depends on smooth communication among all 
parties. To the extent that employees and employers become more 
adversarial in their dealings with each other over the use of FMLA 
leave, it may become harder for workers to take leave when they need it 
most.
    The Department hopes that this Report will further the discussion 
of these important issues and is grateful to all who participated in 
this information-gathering process.

I. Employee Perspective: Experiences in the Value of the FMLA

    The chapters that follow in this Report deal in large part with the 
substantive comments from individual employers and employees, law 
firms, and groups representing employers and employees, assessing what 
works or does not work particularly well with specific regulatory 
sections of the FMLA. Because of that, it is easy to lose perspective 
about the overall value of the workplace protections provided by the 
Act. That value is best shown in the comments submitted by individual 
employees and, in some instances their employers or representatives. 
While it would be impossible for the Department

[[Page 35557]]

to catalog every comment it received in response to the Request for 
Information (``RFI'') about the value of the FMLA, this chapter 
provides a representative collection of comments recounting those 
personal experiences.\1\ These comments also include some examples of 
best practices of employers in carrying out the FMLA--practices that 
often create or strengthen good relationships between employers and 
employees. These comments reflect the belief stated in the regulations 
that a ``direct correlation exists between stability in the family and 
productivity in the workplace'' and demonstrate that the underlying 
intent of the Act ``to allow employees to balance their work and family 
life by taking reasonable unpaid leave'' for certain qualifying family 
and medical reasons is being fulfilled. 29 CFR 825.101.
---------------------------------------------------------------------------

    \1\ The Request for Information can be found at 71 FR 69,508 
(December 1, 2006).
---------------------------------------------------------------------------

    Many employees were grateful that the Act existed and that they 
were able to utilize the leave entitlement in a time of need. Some 
employees specifically commented that the Act helped them during 
difficult periods of caring for loved ones who were ill. For example, 
one employee wrote that she used FMLA leave twice, once to care for a 
seriously ill child and again ``when my husband was injured in 
Afghanistan and needed assistance in his recovery[.]'' An Employee 
Comment, Doc. 2666, at 1.\2\ She noted that ``without this [FMLA] 
protection, I probably would have lost my job and all its benefits[.]'' 
Id. Another employee said he could not have cared for his ill wife 
without FMLA. An Employee Comment, Doc. FL18, at 1. ``My wife * * * has 
a medical condition that is covered by the FMLA. I have used 
intermittent FMLA leave to take her to the doctor whose office is 
located approximately 4 hours away by car from where we live. I have 
been doing this on average once a month for approximately 3 years. I 
would not be able to do this without the FMLA.'' Id.
---------------------------------------------------------------------------

    \2\ The names of individual employees have been redacted from 
the Report where any personal or medical information was provided.
---------------------------------------------------------------------------

    One employee, whose comment echoed the sentiment that the FMLA 
allows employees to balance their work obligations with the need to 
care for their loved ones, appreciated how his family benefited from 
FMLA leave. ``Presently, my sister is having to care for our ailing 
mother while holding down a job. The Family and Medical Leave Act is 
very important to her as well as her family in her continued effort to 
care for our mother in her final days.'' An Employee Comment, Doc. FL9, 
at 1. Another employee said, ``I * * * recently returned from taking a 
two week FML[A leave] to care for my elderly stepfather after open 
heart surgery. My family and I were appreciative that because of the 
FML[A] I was able to request time to assist with his care and 
recuperation at home. We all have no doubt that my time was invaluable 
with his improvement once home.'' An Employee Comment, Doc. 139, at 1.
    Other commenters also noted the value of FMLA when they needed 
leave because of their own serious health conditions. For example, one 
employee said, ``As a cancer survivor myself, I cannot imagine how much 
more difficult those days of treatments and frequent doctor 
appointments would've been without FMLA. I did my best to be at work as 
much as possible, but chemotherapy and radiation not only sap the body 
of energy, but also take hours every day and every week in treatment 
rooms.'' An Employee Comment, Doc. 5798, at 1. Another employee, who 
used FMLA leave on several occasions for her own serious health 
condition, stated that she was ``very thankful for the existence of the 
Family and Medical Leave Act (FMLA). As a two-time survivor of breast 
cancer, I have taken FMLA leave both on a continuous and an 
intermittent basis--continuous leave to recover from my surgeries 
(therapeutic and reconstructive) and intermittent for doctors 
appointments, radiation therapy, and chemotherapy treatments.'' An 
Employee Comment, Doc. 234, at 1. Other employees specifically pointed 
out the value of the FMLA in allowing them to focus completely on 
recovery. For example, a correctional officer commented, ``I was out of 
work for a short period of time due to a serious medical condition that 
was treatable. FMLA gives the employee the ability to tend to these 
concerns with their full attention, to recuperate without sacrificing 
their career [or] their livelihood.'' An Employee Comment, Doc. FL87, 
at 1.
    Several employees commented specifically about the value of 
intermittent leave under the FMLA. A railroad employee of thirty-six 
years said he uses intermittent leave to care for his wife, who suffers 
from Multiple Sclerosis (``MS''). An Employee Comment, Doc. FL115, at 
1. Acknowledging the sporadic need for leave, the commenter said, 
``Since MS is an incurable disease without a schedule or any way of 
knowing when an episode is going to [occur], I cannot always foresee 
when I am needed at home. The only time I know I am needed is when [my 
wife] has an appointment with her doctor. This is subject to change if 
she is unable to go to the doctor due to weakness.'' Id. Similarly, an 
AT&T employee commented that intermittent leave under the Act makes it 
possible for her to care for her mother, who has Alzheimer's disease. 
``I only take an hour here and there as needed. I try to work doctor 
appointments and other things around my work schedule. However, it is 
impossible to always do that. FMLA has been a life saver for me. Had I 
not had FMLA for this reason I don't know what I would do.'' An 
Employee Comment, Doc. 10046A, at 1.
    Many employees commented that the Act helped save their jobs. For 
example, one employee, who commented that her child's health condition 
sometimes keeps her out of work for several days at a time, said, 
``FMLA has tremendously helped my family. I have a child born w/
[asthma], allergies & other medical issues. And, there are times I'm 
out of work for days[. I]f I didn't have FMLA I would have been fired 
[a long] time ago. I've been able to maintain my employment and keep my 
household from having to need assistance from the commonwealth.'' An 
Employee Comment, Doc. 229, at 1. Another employee said, ``I returned 
home after three months [of FMLA leave] to be told I no longer had a 
job. I was told it would be unfair of me to expect my coworkers to 
cover for me so they were forced to hire a new employee * * * When I 
asked the manager about the previous assurances that my job would be 
held until I returned I wasn't given a direct answer. I invoked the 
FMLA and was able to keep my job.'' An Employee Comment, Doc. 61, at 1. 
A teacher stated, ``Without [the FMLA], I couldn't have cared for both 
of my parents at different times in their lives and kept my job * * * 
Because of the act I was able to keep my parents out of nursing homes 
and still keep my job to support them later. This is the best thing you 
can do for working families around our country.'' An Employee Comment, 
Doc. 1181, at 1.
    Similarly, an employee with a chronic serious health condition 
commented, ``I can get sick at any time and need brain surgery. This 
can put me out of commission for a month or two. FMLA gives me the 
peace of mind that I cannot be fired after I have been in a job for a 
year. I cannot stress how monumental that assurance is.'' An Employee 
Comment, Doc. 159, at 1. Another employee said, ``Without the 
availability of FMLA I'm not certain of what would have happened to my 
family when my husband was diagnosed with ALS 5

[[Page 35558]]

years ago. Thankfully it was there, so I could be with him as he was 
dying.'' An Employee Comment, Doc. 4332, at 1. A union steward, using 
FMLA leave for his own serious health condition, commented that ``FMLA 
not only allows me to take time off for * * * therapy/medical 
appointments but also allows [me] to take time off as needed when I 
have sporadic episodes in which the medicine does not work, needs to be 
fine tuned or changed which is essential to my well-being.'' An 
Employee Comment, Doc. 4619, at 1. He further commented, ``Without FMLA 
I would have been fired long ago[.] * * * FMLA saved my job and I also 
believe saved my life, and to this day gives me a sense of security 
against any discipline or termination based on my legitimate medical 
needs.'' Id.
    The FMLA appears to be particularly valued by employees caring for 
both children and parents with serious health conditions. A telephone 
company employee providing care for her asthmatic son and for her 84-
year-old mother commented: ``I am part of what is known as the 
``Sandwich Generation''[.] * * * I have had several occasions to use 
FMLA[.] * * * Without FMLA protection I would have lost my job.'' An 
Employee Comment, Doc. R133, at 1. Another employee described taking 
leave for a three-month period for the birth of her child, then needing 
leave intermittently to care for her father ``for a few days after each 
hospitalization'' for his chronic heart disease. An Employee Comment, 
Doc. 6311, at 1. According to this commenter, ``Knowing that I was 
protected meant I didn't have to choose between my Father's health and 
my job.'' Id. at 1.
    In a similar vein, one commenter who administers FMLA leave for her 
employer noted, ``What I am seeing with increasing regularity are FMLA 
requests for employees to care for an elderly parent who is ill and not 
able to afford a caregiver to attend to his/her needs. These are 
usually for intermittent leaves that will allow the employee to 
chauffer their parent to the doctor [or] attend to their parent post 
surgery. As our working population ages, [the need for leave related 
to] caring for elderly parent(s) will increase.'' Doreen Stratton, Doc. 
696 at 1. An employee agreed: ``There are multiple factors putting 
stress on the American family, making the FMLA a good thing for 
families with children. Also, millions of baby-boomers are getting old, 
many of them without adequate retirement funds--so we will be seeing 
more family caregivers, not fewer.'' An Employee Comment, Doc. 5473, at 
1. As these comments show, the import