The Family and Medical Leave Act, 8960-9020 [2012-2311]

Download as PDF 8960 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules DEPARTMENT OF LABOR Wage and Hour Division 29 CFR Part 825 RIN 1215–AB76, RIN 1235–AA03 The Family and Medical Leave Act Wage and Hour Division, Department of Labor. ACTION: Notice of proposed rulemaking. AGENCY: The Department of Labor’s Wage and Hour Division proposes to revise certain regulations of the Family and Medical Leave Act of 1993 (FMLA or the Act), primarily to implement recent statutory amendments to the Act. This Notice of Proposed Rulemaking (NPRM) proposes regulations to implement amendments to the military leave provisions of the FMLA made by the National Defense Authorization Act for Fiscal Year 2010, which extends the availability of FMLA leave to family members of members of the Regular Armed Forces for qualifying exigencies arising out of the servicemember’s deployment; defines those deployments covered under these provisions; and extends FMLA military caregiver leave to family members of certain veterans with serious injuries or illnesses. This NPRM also proposes to amend the regulations to implement the Airline Flight Crew Technical Corrections Act, which established new FMLA leave eligibility requirements for airline flight crewmembers and flight attendants. In addition, the proposal includes changes concerning the calculation of leave; reorganization of certain sections to enhance clarity; the removal of the forms from the regulations; and technical corrections of inadvertent drafting errors in the current regulations. SUMMARY: Comments must be received on or before April 16, 2012. ADDRESSES: You may submit comments, identified by Regulatory Information Number (RIN) 1235–AA03, by electronic submission through the Federal eRulemaking Portal http:// www.regulations.gov. Follow 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– 3510, 200 Constitution Avenue NW., Washington, DC 20210. Instructions: Please submit only one copy of your comments by only one method. All submissions must include tkelley on DSK3SPTVN1PROD with PROPOSALS2 DATES: VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 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. 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– 3510, 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 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 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–AA03 in your submission. The RIN identified for this rulemaking changed with the publication of the 2010 Spring Regulatory Agenda due to an organizational restructuring. The previously identified RIN was assigned to the Employment Standards Administration, which no longer exists. A new RIN has been assigned to the WHD. Commenters should transmit comments early to ensure timely receipt prior to the close of the comment period (date identified above); comments submitted 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. II. Background Subsequent to this rulemaking first appearing on the Department’s Fall 2009 Regulatory Agenda, the FMLA was amended by the National Defense Authorization Act for Fiscal Year 2010 (FY 2010 NDAA), Public Law 111–84, and the Airline Flight Crew Technical Corrections Act (AFCTCA), Public Law 111–119. This rulemaking, therefore, proposes regulatory changes to implement these statutory amendments. The Department continues to review the impact of regulatory revisions published in the Family and Medical Leave Act of 1993, Final Rule on November 17, 2008 (2008 final rule). 73 FR 67934. A. What the FMLA Provides The Family and Medical Leave Act of 1993, 29 U.S.C. 2601 et seq., was enacted on February 5, 1993, and became effective for most covered employers on August 5, 1993. As originally enacted, the FMLA 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; or when the employee is unable to work due to the employee’s own serious health condition. The FMLA was amended in January 2008 by enactment of the National E:\FR\FM\15FEP2.SGM 15FEP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules Defense Authorization Act for FY 2008 (FY 2008 NDAA). Public Law 110–181. Section 585(a) of FY 2008 NDAA expanded the FMLA to allow eligible employees of covered employers to take FMLA leave because of any qualifying exigency (as determined by the Secretary of Labor) when that employee’s spouse, son, daughter, or parent is a member of the National Guard or Reserves who is on, or has been notified of an impending call or order to, active duty in the Armed Forces in support of a contingency operation (referred to as ‘‘qualifying exigency leave’’). Additionally, the FY 2008 NDAA amendments provided up to 26 workweeks of leave in a ‘‘single 12-month period’’ for an eligible employee to care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember (referred to as ‘‘military caregiver leave’’). These two leave entitlements are collectively referred to as ‘‘military family leave’’. The FMLA was again amended in 2009 with the enactment of the FY 2010 NDAA on October 28, 2009, and the AFCTCA on December 21, 2009. Section 565(a) of the FY 2010 NDAA amended the military family leave provisions of the FMLA by extending qualifying exigency leave to eligible family members of the Regular Armed Forces, and military caregiver leave to include care provided to certain veterans. The AFCTCA amended the FMLA to include special eligibility requirements for airline flight crewmembers and flight attendants (referred to collectively as ‘‘airline flight crew employees’’). A new definition of hours of service as it applies to airline flight crew employees was included in the eligibility provisions. Each of these provisions is discussed in detail in the section-bysection analysis that follows. 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 VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 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. Title III established a temporary Commission on Leave to conduct a study and report on existing and proposed policies on leave and the costs, benefits, and impact on productivity of such policies. Title IV contains provisions governing the effect of the FMLA on more generous leave policies, other laws, and existing employment benefits. Finally, Title V originally extended the leave provisions to certain employees of the U.S. Senate and House of Representatives; however, such coverage was repealed and replaced by the Congressional Accountability Act of 1995. 2 U.S.C. 1301. 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 (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 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 8961 interim regulations. 58 FR 45433. 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. On December 1, 2006, the Department published a Request for Information (RFI) in the Federal Register requesting public comment on its experiences with and observations of the Department’s administration of the FMLA and the effectiveness of the regulations. 71 FR 69504. The Department received comments from workers, family members, employers, academics, and other interested parties, ranging from personal accounts, surveys, and legal reviews, to academic studies and recommendations for regulatory and statutory changes to the FMLA. The Department published its Report on the comments in the Federal Register 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 RFI. 73 FR 7876. The Department also sought comments on the recently enacted military family leave statutory provisions. 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. D. Updates to the Military Family Leave Provisions Section 565(a) of the FY 2010 NDAA, enacted on October 28, 2009, amends the military family leave provisions of the FMLA. Public Law 111–84. The FY 2010 NDAA expands the availability of qualifying exigency leave and military caregiver leave. Qualifying exigency leave, which was made available to family members of the National Guard and Reserve components under the FY 2008 NDAA, is expanded to include family members of the Regular Armed E:\FR\FM\15FEP2.SGM 15FEP2 8962 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS2 Forces. The entitlement to qualifying exigency leave is expanded by substituting the term ‘‘covered active duty’’ for ‘‘active duty’’ and defining covered active duty for a member of the Regular Armed Forces as ‘‘duty during the deployment of the member with the Armed Forces to a foreign country’’, and for a member of the Reserve components of the Armed Forces as ‘‘duty during the deployment of the member with the Armed Forces to a foreign country under a call or order to active duty under a provision of law referred to in section 101(a)(13)(B) of title 10, United States Code.’’ 29 U.S.C. 2611(14).1 Prior to the FY 2010 NDAA amendments, there was no requirement that members of the National Guard and Reserves be deployed to a foreign country. The FY 2010 NDAA amendments expand the definition of a serious injury or illness for military caregiver leave for current members of the Armed Forces to include an injury or illness that existed prior to service and was aggravated in the line of duty on active duty. 29 U.S.C. 2611(18)(A). These amendments also expand the military caregiver leave provisions of the FMLA to allow family members to take military caregiver leave to care for certain veterans. The definition of a covered servicemember, which is the term the Act uses to indicate the group of military members for whom military caregiver leave may be taken, is broadened to include a veteran with a serious injury or illness who is receiving medical treatment, recuperation, or therapy, if the veteran was a member of the Armed Forces at any time during the period of five years preceding the date of the medical treatment, recuperation, or therapy. 29 U.S.C. 2611(15)(B). The amendments define a serious injury or illness for a veteran as a ‘‘qualifying (as defined by the Secretary of Labor) injury or illness that was incurred by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that manifested itself before or after the member became a veteran.’’ 29 U.S.C. 2611(18)(B). As was the case with the FY 2008 NDAA, the FY 2010 NDAA is silent as to the effective date of the FMLA 1 As with the FY 2008 NDAA, the FY 2010 NDAA references 10 U.S.C. 101(a)(13)(B), which covers call ups of the National Guard and Reserves and certain retired members of the Regular Armed Forces and Reserves in support of contingency operations. 73 FR 67954–55. For simplicity, the terms ‘‘National Guard and Reserve’’ and ‘‘Reserve components’’ are used interchangeably throughout this document and refer to these categories of military members. VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 amendments. Because the FY 2008 NDAA required the Secretary of Labor to define the term ‘‘qualifying exigency’’, the Department took the position that employers were not obligated to provide qualifying exigency leave to employees until the Department defined the term through regulation. 73 FR 7925. In contrast, the Department viewed the military caregiver leave provisions of the FY 2008 NDAA as being effective as of January 28, 2008, the signing date of the amendment. Id. Like the FY 2008 NDAA, the FY 2010 NDAA also requires the Secretary of Labor to define a key term in the amendment—‘‘serious injury or illness of a veteran’’. Public Law 111–84, sec. 565(a)(3); 29 U.S.C. 2611(18)(B). It is the Department’s position that employers are not required to provide employees with military caregiver leave to care for a veteran until the Department defines a qualifying serious injury or illness of a veteran through regulation. However, employers are not prohibited from providing leave to employees to care for an injured or ill veteran if they choose to do so before the Department issues a final rule defining those terms, although any such leave would not be FMLAprotected and would not count against the employees’ FMLA entitlement. It is also the Department’s position that the provisions of the FY 2010 NDAA expanding qualifying exigency leave to cover qualifying exigencies arising from the foreign deployment of a family member in the Regular Armed Forces became effective on the date of enactment, October 29, 2009. E. Amendments to Eligibility Criteria for Airline Flight Crewmembers and Flight Attendants On December 21, 2009, the AFCTCA was enacted, establishing a special minimum hours of service eligibility requirement for airline flight crew employees. The AFCTCA provides that an airline flight crew employee will meet the hours of service eligibility requirement if he or she has worked or been paid for not less than 60 percent of the applicable total monthly guarantee (or its equivalent) and has worked or been paid for not less than 504 hours (not including personal commute time or time spent on vacation, medical, or sick leave) during the previous 12 months. Airline flight crew employees continue to be subject to the FMLA’s other eligibility requirements. The AFCTCA is silent as to its effective date. Because the AFCTCA is explicit about how to calculate the hours of service requirement for airline flight crew employees, it is the PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 Department’s position that the amendment became effective on the date of enactment. While the AFCTCA authorizes the Department to promulgate regulations on how to calculate the FMLA leave entitlement for airline flight crew employees, the authorization is permissive and does not require the Department to engage in rulemaking (unlike the FY 2010 NDAA provision requiring the Department to define serious injury or illness of a veteran). Because the Department is not statutorily required to issue regulations to effectuate the AFCTCA, and employers can provide leave to airline flight crew employees under the current FMLA regulations, it is the Department’s position that employees became entitled to take leave under the AFCTCA as of December 21, 2009. Until the Department issues a final rule specifically addressing calculating FMLA leave usage for flight crew employees, the Department will exercise its discretion in assessing employer compliance, in light of the individual facts and circumstances, with current § 825.205. F. Regulatory Look Back Review In complying with Executive Order 13563, ‘‘Improving Regulation and Regulatory Review,’’ the Department sought public comment in March 2011 to inform its design of a framework to review its significant rules. The review would determine whether these rules are obsolete, unnecessary, unjustified, excessively burdensome, counterproductive, or duplicative of other Federal regulations. Specifically, the Department sought comment on which regulations should be considered for review, expansion, or modification. The Department utilized an interactive Web site (www.dol.gov/regulations/ regreview.htm) and published a Request for Information in the Federal Register (76 FR 15224) for the public to provide comments. The Department received three comments concerning the FMLA. The first commenter requested clarification on § 825.218, regarding substantial and grievous economic injury. Upon review of the comment, the Department determined that there was no need to clarify this section through regulatory change. The second comment the Department received concerned § 825.204, ‘‘Transfer of an Employee to an Alternative Position During Intermittent Leave or Reduced Schedule Leave.’’ The commenter suggested extending the employer’s ability to transfer an employee to an alternative positive for E:\FR\FM\15FEP2.SGM 15FEP2 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS2 intermittent leave that is foreseen but unscheduled. The Department responded to similar comments in the 2008 final rule. As the Department noted at that time, by expressly permitting transfers in cases of intermittent or reduced schedule leave ‘‘that is foreseeable based on planned medical treatment,’’ 29 U.S.C. 2612(b)(2), the statutory language strongly suggests that this is the only situation where such transfers are allowed. 73 FR 67975. The Department continues to find no statutory basis to permit transfers to an alternative position for employees taking unscheduled or unforeseeable intermittent leave, and declines to expand the situations in which an employer may temporarily transfer an employee to an alternative position. Id. The last comment that the Department received suggested excluding from the Act’s protections medical conditions that the commenter believes are subjectively determined. The regulations provide an objective definition of ‘‘serious health condition’’ as well as a process for employers to request a certification of a serious health condition from the employee’s (or family member’s) health care practitioner. Additionally, where the employer has reason to doubt the validity of the initial certification, the employer may require a second and, if necessary, third opinion from a health care practitioner. Given the procedures available for ensuring certification of a serious health condition by a health care practitioner, the Department does not believe that issuing further regulatory changes at this time is warranted. III. Section-by-Section Analysis of Proposed Changes to the FMLA Regulations The following is a section-by-section analysis of the proposed revisions to the FMLA regulations. The primary sections of the regulations with proposed revisions to implement the FY 2010 NDAA amendments are: § 825.126 (Leave because of a qualifying exigency); § 825.127 (Leave to care for a covered servicemember with a serious injury or illness); § 825.309 (Certification for leave taken because of a qualifying exigency); and § 825.310 (Certification for leave taken to care for a covered servicemember (military caregiver leave)). Less substantive changes are proposed to § 825.122 (Definitions of spouse, parent, son or daughter, next of kin of a covered servicemember, adoption, foster care, son or daughter on active duty or call to active duty status, son or daughter of a covered servicemember, and parent of a VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 covered servicemember) and § 825.800 (Definitions) to reflect new definitions related to military family leave. The primary sections of the regulations with proposed revisions to implement the AFCTCA are: § 825.110 (Eligible employee); § 825.205 (Increments of FMLA leave for intermittent or reduced schedule leave); § 825.500 (Recordkeeping requirements); and § 825.800 (Definitions) to include definitions specific to airline flight crew employees. The Department further proposes to move the definitions section of the regulations from § 825.800 to § 825.102, which is currently reserved. The Department believes that placing the definitions section at the beginning of the regulations is more helpful to the reader, and consistent with other regulations implementing statutes administered by the WHD. Unless specifically discussed, no further substantive changes are proposed to this section. The Department intends to make corresponding minor changes to the FMLA poster (WHD publication 1420), the Notice of Eligibility and Rights and Responsibilities (Form WHD–381), the Certification for Qualifying Exigency Leave for Military Family Leave (Form WHD–384), and the Certification for Serious Injury or Illness of a Covered Servicemember for Military Family Leave (Form WHD–385) to reflect the FY 2010 NDAA amendments and the AFCTCA. The Department also intends to develop a new form for the certification for the serious injury or illness of a covered veteran. The Department also proposes to remove the optional-use forms and notices from the regulations’ Appendices. The removed forms and notices are medical certification forms WH–380–E (Certification of Health Care Provider— Employee), WH–380–F (Certification of Health Care Provider—Family Member), WH–384 (Certification of Qualifying Exigency for Military Family Leave), and WH–385 (Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave); notification forms WH–381 (Notice of Eligibility and Rights & Responsibilities) and WH–382 (Designation Notice to Employee of FMLA Leave); and the Notice to Employees of Rights under FMLA (WH Publication 1420). The Department’s prototype forms are intended to facilitate the information collection requirements of the FMLA. These information collections are subject to the requirements of the Paperwork Reduction Act of 1995 (PRA). The Department, as part of its continuing effort to reduce paperwork PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 8963 and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information every three years in accordance with the requirements of the PRA. Substantive changes to the forms as they appear in the Appendices require additional and separate rulemaking activities. The PRA clearance process has sometimes resulted in updates to the forms that differed from the version of the forms that appeared in the Appendices to the regulations. The Department believes that multiple versions of the forms have created needless confusion for the public, and in an effort to lessen this confusion the Department proposes to remove the forms from the regulations. The forms will continue to be available on the WHD Web site. The Department believes that removing the forms from the regulations, and thereby streamlining the clearance process, will permit the forms to be more expeditiously amended in response to statutory and other changes, as well as suggestions from the public. This will ensure that the most accurate and up-todate forms are available to the public. Although the Department is proposing to remove the forms from the regulations, this proposed change does not alter the Department’s belief that the forms facilitate employer and employee compliance with their respective obligations under the FMLA. Employers are permitted to use forms other than those issued by the Department so long as they do not require information beyond that specified in the regulations. See 29 CFR §§ 825.306, 825.309, 825.310. However, if an employee provides sufficient certification regardless of format, no additional information may be requested. Minor changes to more accurately reflect the new military family leave and airline flightcrew employee eligibility provisions or to delete references to Appendices for prototype forms or notices, are proposed at: §§ 825.100, 825.101, 825.107, 825.112, 825.200, 825.213, 825.300, 825.302, 825.303 and 825.306. The Department also proposes to correct inadvertent drafting errors that were made in the 2008 final rule, including correcting the cross-references in current § 825.200(g) and (f), and inserting the word ‘‘spouse’’ in the first lines of § 825.202(b) and (b)(1). The Department also proposes to include the word ‘‘the’’ in the statutory phrase ‘‘in line of duty’’ where used in the regulations. The URL for the WHD Web site has also been updated to link E:\FR\FM\15FEP2.SGM 15FEP2 8964 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules viewers directly to the WHD site. This proposed change appears in: §§ 825.300, 825.306, and 825.309. These proposed changes are not addressed in the section-by-section analysis. The addition of definitions to current § 825.800 and its relocation to reserved § 825.102 is also not addressed in the section-by-section analysis. A. Revisions To Implement the FY 2010 NDAA amendments tkelley on DSK3SPTVN1PROD with PROPOSALS2 1. Section 825.122—Definitions of Spouse, Parent, Son or Daughter, Next of Kin of a Covered Servicemember, Adoption, Foster Care, Son or Daughter on Active Duty or Call or Order to Active Duty Status, Son or Daughter of a Covered Servicemember, and Parent of a Covered Servicemember The Department proposes to add a definition of ‘‘covered servicemember’’ as new paragraph (a) of this section to reflect the addition of covered veterans as covered servicemembers under the FY 2010 NDAA. As a result, the Department proposes to renumber the paragraphs that follow. The Department also proposes to change the term ‘‘active duty’’ to ‘‘covered active duty’’ in each place it appears in both the title of this section and in paragraph (g), and to update the reference in this paragraph to proposed § 825.126(a)(5). 2. Section 825.126—Leave Because of a Qualifying Exigency Section 585 of the FY 2008 NDAA provided that eligible employees of covered employers may take FMLA leave for any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is on active duty or has been notified of an impending call or order to active duty in support of a contingency operation. Public Law 110–181; § 585(a). The FY 2008 NDAA defined ‘‘active duty’’ as a call or order to active duty under a provision of law referred to in 10 U.S.C. 101(a)(13)(B). Id. The provisions referred to in 10 U.S.C. 101(a)(13)(B) are: sections 688, 12301(a), 12302, 12304, 12305, and 12406 of Title 10 of the United States Code; Chapter 15 of Title 10 of the United States Code; and any other provision of law during a war or during a national emergency declared by the President or Congress. These provisions are limited to duty by members of the Reserve components, the National Guard, and certain retired members of the Regular Armed Forces and retired Reserve under a call or order to active duty. The FY 2008 NDAA amendment thus limited the availability of qualifying exigency leave to family members of members of the Reserve VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 components. The entitlement to qualifying exigency leave did not extend to family members of the Regular Armed Forces on active duty status because members of the Regular Armed Forces either do not serve ‘‘under a call or order to active duty’’ or are not identified in the provisions of law referred to in 10 U.S.C. 101(a)(13)(B). 73 FR 67954–55. The FY 2010 NDAA further amends the FMLA to permit an eligible employee to take FMLA leave for any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is on covered active duty, or has been notified of an impending call or order to covered active duty in the Armed Forces. Public Law 111–84, § 565(a)(1)(B); see 29 U.S.C. 2612(a)(1)(E). The FY 2010 NDAA provisions define ‘‘covered active duty’’ to include duty by members of the Regular Armed Forces during deployment to a foreign country, and duty by members of the Reserve components during deployment to a foreign country under a call or order to active duty under a provision of law referred to in section 101(13)(B) of title 10, United States Code. 29 U.S.C. 2611(14). Thus, these new provisions entitle qualifying family members to FMLA leave for qualifying exigencies arising from foreign deployments of Regular Armed Forces members, and add a foreign deployment requirement to the type of call or order to active duty required for the Reserve components of the Armed Forces. Section 825.126 is currently organized into two parts: (a) The specific circumstances under which qualifying exigency leave may be taken; and (b) an employee’s entitlement to qualifying exigency leave. The Department proposes to keep these two provisions, but reverse the order in which they appear. The Department has learned from employers and employees that there is confusion about the military family provisions. The Department believes that it is more logical to outline an employee’s entitlement to qualifying exigency leave first, and then to specify the circumstances under which the employee may take qualifying exigency leave. The Department expects that this reordering will be less confusing to the public. Thus, proposed § 825.126(a) covers an employee’s entitlement to qualifying exigency leave (currently addressed in § 825.126(b)) and proposed § 825.126(b) identifies the specific circumstances under which qualifying exigency leave may be taken (currently addressed in § 825.126(a)). As discussed below, the Department further proposes PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 to revise § 825.126 to incorporate the FY 2010 NDAA amendments. The Department proposes to substitute in this section (as well as throughout the regulations wherever the term appears) ‘‘covered active duty’’ for ‘‘active duty’’ to incorporate the FY 2010 NDAA statutory language. The Department also proposes to delete references in this section (as well as throughout the regulations wherever the term appears) to ‘‘covered military member’’ and instead use the generic term ‘‘military member’’ or ‘‘member’’ to refer to members of the Armed Forces on covered active duty as defined by the statute. As discussed above, the FY 2008 NDAA restricted entitlement to qualifying exigency leave to an employee whose parent, spouse, son, or daughter is a member of the National Guard and Reserves under an impending call or order to active duty in support of a contingency operation. In the 2008 final rule, the Department introduced the term ‘‘covered military member’’ to reflect that the military member must be the parent, spouse, son or daughter of the employee. This term has also come to reflect the restrictive nature of qualifying exigency leave under the FY 2008 NDAA, i.e., that such leave was limited to qualifying family members of Reserve component members. The FY 2010 NDAA amendment extends the entitlement for qualifying exigency leave to family members of Regular Armed Forces members, and therefore, the limiting term ‘‘covered military member’’ is no longer relevant and may be unnecessarily confusing. Similarly, the use of the term ‘‘covered active duty’’ rather than ‘‘active duty’’ will more accurately reflect the fact that there are limitations on the types of active duty that can give rise to qualifying exigency leave. The Department intends to make the provisions of qualifying exigency leave more understandable to the public by using the statutory term ‘‘covered active duty’’ and referring generically to the military member throughout the regulation, and seeks comment on this proposed change. Current § 825.126(a) states the statutory entitlement that eligible employees may take FMLA leave while the employee’s spouse, son, daughter, or parent is on active duty or call to active duty status (this paragraph continues by listing the specific qualifying exigencies for which leave may be taken). Similarly, proposed § 825.126(a) sets out the statutory entitlement that an eligible employee may take leave for any qualifying exigency arising out of the covered active duty or call to covered active duty status of the employee’s E:\FR\FM\15FEP2.SGM 15FEP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules spouse, son, daughter, or parent. The list of specific qualifying exigencies in current paragraph (a) is moved to proposed paragraph (b). Proposed § 825.126(a)(1) defines ‘‘covered active duty or call to covered active duty’’ status for a member of the Regular Armed Forces as ‘‘duty under a call or order to active duty (or notification of an impending call or order to covered active duty) during the deployment of the member with the Armed Forces to a foreign country,’’ and states that the active duty orders will generally specify if the member’s deployment is to a foreign country. In accordance with the FY 2010 NDAA, the Department deleted the statement in current § 825.126(b)(2)(i) that family members of members of the Regular Armed Forces are not entitled to qualifying exigency leave. Proposed § 825.126(a)(2) defines ‘‘covered active duty or call to covered active duty’’ status for a member of the Reserve components as duty under a call or order to active duty (or notification of an impending call or order to active duty) during the deployment of the member to a foreign country under a Federal call or order to active duty in support of a contingency operation pursuant to the provisions of law referred to in 10 U.S.C. 101(a)(13)(B). The provisions referred to in 10 U.S.C. 101(a)(13)(B) are 10 U.S.C. 688, 12301(a), 12302, 12304, 12305, 12406; 10 U.S.C. chapter 15; and any other provision of law during a war or during a national emergency declared by the President or Congress. While FY 2010 NDAA struck the definition of ‘‘contingency operation’’ from the FMLA and deleted the reference to ‘‘contingency operation’’ in 29 U.S.C. 2612(a)(1)(E), the Department believes that the reference to 10 U.S.C. 101(a)(13)(B) in the definition of covered active duty for members of the Reserve components continues to require that members of the Reserve components be called to duty in support of a contingency operation in order for their family members to be entitled to qualifying exigency leave. Therefore, proposed § 825.126(a)(2) maintains the language in current § 825.126(b)(2) regarding duty in support of a contingency operation. The Department also proposes to use the word ‘‘Federal’’ in proposed paragraph § 825.126(a)(2) in describing the covered calls or orders to active duty in order to make clear that only Federal calls to duty will meet the definition of covered active duty. Proposed paragraph § 825.126(a)(2)(i) lists the specific Reserve components currently found in § 825.126(b)(2)(i). Proposed paragraph § 825.126(a)(2)(ii) VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 follows current § 825.126(b)(3) in that it provides that the active duty orders of a member of the Reserve components will generally specify if the covered active duty military member is serving in support of a contingency operation by citing the relevant section of Title 10 of the United States Code and/or by reference to the specific name of the contingency operation as is stated in current § 825.126(b)(3). Proposed § 825.126(a)(2)(ii) also states that the active duty orders will specify that the deployment is to a foreign country. The Department proposes in paragraph § 825.126(a)(3) to define deployment of the member with the Armed Forces to a foreign country as deployment to areas outside of the United States, the District of Columbia, or any Territory or possession of the United States, including deployment in international waters. This definition is consistent with the Department’s understanding of the term ‘‘deployment’’ based on consultations with the Department of Defense (DOD). The Department understands that servicemembers are assigned to a home station 2 and deployment is the relocation of forces and materials from that home station to an operational area. The term does not include reassignments to a new duty station or deployment for training exercises. In addition, the definition of ‘‘deployment’’ in proposed paragraph § 825.126(a)(3) includes deployment of the military member to active duty in international waters. The Department understands Congress to have intended to extend the entitlement of qualifying exigency leave to family members of all branches of the military equally. The Department seeks to ensure that family members of the Navy, Coast Guard, and other military members deployed to duty in international waters have access to qualifying exigency leave. The Department seeks comment on the types of duty assignments for members of the Navy and Coast Guard that will satisfy the definition of deployment. The Department proposes in § 825.126(a)(4) to specify, as current § 825.126(b)(2)(ii) does, that covered deployments are limited to Federal calls to active duty. Finally, the Department proposes to move the definition of ‘‘son or daughter on active duty or call to active duty status’’ currently located at 2 According to The Joint Publication 1–02, Department of Defense Dictionary of Military and Associated Terms, 8 November 2010 (as amended through 15 August 2011), ‘‘home station’’ is defined as the permanent location of active duty units and Reserve Component units (e.g,, location of armory or reserve center). PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 8965 § 825.126(b)(1) to paragraph § 825.126(a)(5). Current § 825.126(a) lists the reasons, divided into eight categories, for which an eligible employee may take qualifying exigency leave. The qualifying exigency leave categories are: (1) Short-notice deployment, (2) Military events and related activities, (3) Childcare and school activities, (4) Financial and legal arrangements, (5) Counseling, (6) Rest and recuperation, (7) Post-deployment activities, and (8) Additional activities. The Department proposes to move this list to § 825.126(b); the paragraph numbers that correspond to the eight categories will remain the same. As noted above, the Department proposes to replace the term ‘‘active duty’’ with ‘‘covered active duty’’ and ‘‘covered military member’’ with ‘‘military member’’ or ‘‘member’’ throughout this section. Where no additional changes are made within a category of qualifying exigency, and the Department is not specifically requesting additional information, that category is not discussed further in this proposal. Current § 825.126(a)(1) sets forth the requirements for Short-notice deployment qualifying exigency leave. Leave taken for this purpose may be used for a period of seven calendar days beginning with the date the military member is notified of an impending call or order to covered active duty. The Department seeks public comment on whether the seven calendar day period remains appropriate for this type of qualifying exigency. Current § 825.126(a)(3), Childcare and school activities, allows eligible employees to take qualifying exigency leave to arrange childcare or attend certain school activities for a military member’s son or daughter. The Department proposes to delete repetitive text throughout this paragraph identifying the relationship between the child and the military member. Instead, proposed paragraph § 825.126(b)(3) states that for purposes of the childcare and school activities leave listed in § 825.126(b)(3)(i) through (iv), the child must be ‘‘the military member’s biological, adopted, or foster child, stepchild, legal ward, or child for whom the military member stands in loco parentis, who is either under age 18 or age 18 or older and incapable of selfcare because of a mental or physical disability at the time that FMLA leave is to commence.’’ Proposed § 825.126(b)(3) also adds language to clarify that, as with all instances of qualifying exigency leave, the military member must be the spouse, son, daughter, or parent of the employee E:\FR\FM\15FEP2.SGM 15FEP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 8966 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules requesting leave. The Department believes this clarifying language is necessary because of this section’s unique relationship requirements. While the military member must be the spouse, parent, or son or daughter of the eligible employee, the child for whom childcare leave is sought need not be a child of the employee requesting leave. For example, the employee may be the mother of the military member and may need qualifying exigency childcare and school activities leave for the military member’s child. Current § 825.126(a)(6), Rest and recuperation, allows an eligible employee to take up to five days of leave to spend time with a military member on rest and recuperation leave during a period of deployment. The Department proposes in § 825.126(b)(6) to capitalize Rest and Recuperation to reflect that this type of leave corresponds directly to the DOD Rest and Recuperation leave programs (e.g., USCENTCOM R & R leave). The Department also proposes to expand the maximum duration of Rest and Recuperation qualifying exigency leave from five to 15 days. The DOD has advised the Department that the actual number of days of Rest and Recuperation leave provided by the military varies, with some military members receiving as many as 15 days, depending upon the length of their deployment. The Department proposes to allow the amount of leave an employee may take for Rest and Recuperation qualifying exigency leave to equal that provided to the military member, up to a maximum of 15 days. The Department has received information from employees indicating that the amount of time granted to a military member for Rest and Recuperation leave is generally longer than the five days permitted by the regulations, and due to the nature of the deployments, five days, as permitted by the current regulations, is an insufficient amount of time for leave. As noted in the 2008 final rule, there are limited opportunities available for military members to spend time with their families while on active duty and it is important to foster strong relationships among military families. 73 FR 67961. The Department believes it is appropriate to make the availability of this type of FMLA-qualifying exigency leave consistent with the leave actually provided by the military to the member on covered active duty. The Department seeks comment on the expansion of Rest and Recuperation qualifying exigency leave and whether the proposed 15 day period is sufficient in all instances. VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 The Department is also proposing to add language to § 825.126(7), Postdeployment activities. Current § 825.126(b)(7)(ii) permits an employee to take qualifying exigency leave to address issues that arise from the death of a military member while on covered active duty status. The Department proposes to add attending funeral services as an additional example to the activities that are covered by such leave. The Department proposes no additional qualifying exigencies for which FMLA leave may be taken, but invites comment on whether additional qualifying exigencies should be added in light of the extension of this leave entitlement to family members of members of the Regular Armed Forces. The Department notes that the categories of leave in the current and proposed regulations include activities that may take place in advance of deployment (pre-deployment activities), during deployment, and limited activities that occur after deployment has ended (post-deployment activities). While the FY 2010 NDAA defines ‘‘covered active duty’’ as ‘‘duty during the deployment of the member,’’ the Department continues to believe that it is appropriate to include certain predeployment activities to reflect Congressional intent to include exigencies arising from notification of ‘‘an impending call or order to covered active duty’’. 29 U.S.C. 2612(a)(1)(E) (emphasis added). Similarly, the Department continues to believe that it is appropriate to include as qualifying exigencies limited post-deployment activities the need for which immediately and foreseeably arise from the military member’s covered active duty. This interpretation and reasoning is consistent with that outlined in the 2008 final rule. 73 FR 67961. No other changes are proposed to § 825.126. 3. Section 825.127 Leave To Care for a Covered Servicemember With a Serious Injury or Illness Section 585(a) of the FY 2008 NDAA amended the FMLA to allow an eligible employee who is a covered servicemember’s spouse, son, daughter, parent, or next of kin to take up to 26 workweeks of leave during a ‘‘single 12month period’’ to care for a servicemember receiving treatment for a serious injury or illness (‘‘military caregiver leave’’). Such leave can be taken to provide care to a current member of the Armed Forces, including the National Guard and Reserves. These provisions were incorporated in current § 825.127, which explains an employee’s entitlement to military PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 caregiver leave and the specific circumstances under which military caregiver leave may be taken. Section 565(a) of the FY 2010 NDAA further amends the FMLA to revise the definition of ‘‘covered servicemember’’ to include certain veterans and to expand coverage for military caregiver leave to eligible employees caring for such veterans with a qualifying (as defined by the Secretary of Labor) injury or illness. 29 U.S.C. 2611(15)(B). It also amends the FMLA to revise the definition of serious injury or illness for current members of the Armed Forces to include conditions that existed before the covered servicemembers’ active duty but were aggravated by service in the line of duty on active duty. 29 U.S.C. 2611(18)(A). A serious injury or illness for a veteran similarly includes conditions that existed before the veteran’s active duty but were aggravated by service in the line of duty on active duty and that manifested before or after the servicemember became a veteran. 29 U.S.C. 2611(18)(B). The Department proposes to reorganize § 825.127 to reflect the substantive changes to the military caregiver leave provisions pursuant to the FY 2010 NDAA amendments. In addition, the proposal adds the term ‘‘military caregiver leave’’ to the title of this section for clarity. Current paragraph § 825.127(b), which defines the family members qualified to take caregiver leave, is moved to proposed paragraph § 825.127(d). Current paragraph § 825.127(d), which addresses circumstances when a husband and wife who are both eligible for FMLA leave work for the same employer, is moved to proposed § 825.127(f). Because no substantive changes are proposed to these sections they are not discussed further. Current § 825.127(a) provides that an eligible employee may take FMLA leave to care for a current member of the Armed Forces, including National Guard and Reserves members, with a serious injury or illness incurred in the line of duty on active duty for which the servicemember is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list. This section of the current regulations incorporates the statutory definition of a covered servicemember pursuant to the FY 2008 NDAA, and states that the definition of a covered servicemember does not include former members of the Regular Armed Forces, former members of the National Guard and Reserves, and members on the permanent disability retired list. Consistent with the FY 2010 NDAA E:\FR\FM\15FEP2.SGM 15FEP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules expansion of military caregiver leave to care for certain veterans, the current statement that military caregiver leave does not apply to former members of the military is deleted from proposed paragraph (a). The definitions set forth in current paragraphs (a)(1) and (2) are incorporated in proposed paragraphs (b) and (c), discussed below. Proposed paragraph § 825.127(a) simply states that eligible employees are entitled to FMLA leave to care for a covered servicemember with a serious injury or illness. Proposed § 825.127(b) provides the definition of covered servicemember for current members of the Armed Forces and for covered veterans. Proposed § 825.127(b)(1) defines covered servicemember as it applies to current members of the Armed Forces, including members of the National Guard or Reserves. This definition mirrors the statutory definition. 29 U.S.C. 2611(15)(A). This paragraph also incorporates the definition of ‘‘outpatient status’’ from current § 825.127(a)(2), which is applicable only to current members of the Armed Forces. Proposed § 825.127(b)(2) defines covered servicemember, as it applies to veterans, to mean a covered veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness. It further defines a covered veteran as an individual who was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran. This definition combines the FY 2010 NDAA statutory definition of a ‘‘veteran’’ (which incorporates the definition of veteran in 38 U.S.C. 101) and the statutory limitations on the inclusion of veterans as covered servicemembers. 29 U.S.C. 2611(15)(B) (a veteran will be a covered servicemember if he or she is ‘‘undergoing medical treatment, recuperation, or therapy for a serious injury or illness [and the veteran] was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy.’’); 29 U.S.C. 2611(19) (adopting 38 U.S.C. 101 definition of veteran, which defines the term as ‘‘a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable’’). The Department proposes to measure the five-year period from the date the VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 employee first takes leave to care for the veteran, and to permit an employee to continue leave begun within the fiveyear period until the end of the applicable ‘‘single 12-month period’’. A veteran will be considered a covered veteran if he or she was a member of the Armed Forces within the five-year period immediately preceding the date the requested leave is to begin. If the leave commences within the five-year period, the employee may continue leave for the applicable ‘‘single 12month period’’, even if it extends beyond the five-year period. The Department believes this interpretation is consistent with the intent of Congress in limiting FMLA leave to care for certain veterans to a specified time period. This interpretation may exclude veterans of previous conflicts (e.g., Gulf War veterans), and may exclude certain veterans of the War in Afghanistan and Operation Iraqi Freedom, depending on the veteran’s discharge date and the date the eligible employee’s leave is to begin. The Department invites comment on this interpretation. Proposed § 825.127(c) provides the definition of serious injury or illness for current members of the Armed Forces and for covered veterans. Proposed § 825.127(c)(1) incorporates the definition of serious injury or illness of a current servicemember from current § 825.127(a)(1), and expands it to include an injury or illness that existed prior to the beginning of the member’s active duty but was aggravated by service in the line of duty on active duty in the Armed Forces, consistent with the statutory definition of this term as amended by the FY 2010 NDAA. 29 U.S.C. 2611(18)(A). For both current members of the Armed Forces and covered veterans, a serious injury or illness that existed before the beginning of the servicemember’s active duty and was aggravated by service in the line of duty on active duty includes both conditions that were noted at the time of entrance into active service and conditions that the military was unaware of at the time of entrance into active service but that are later determined to have existed at that time. A preexisting injury or illness will generally be considered to have been aggravated by service in the line of duty on active duty where there is an increase in the severity of such injury or illness during service, unless there is a specific finding that the increase in severity is due to the natural progression of the injury or illness. It is the Department’s understanding that individuals will not be accepted for military service in the Regular or Reserve components unless they are: (1) PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 8967 Free of contagious diseases that probably will endanger the health of other personnel; (2) free of medical conditions or physical defects that may require excessive time lost from duty for necessary treatment or hospitalization, or probably will result in separation for medical unfitness; (3) medically capable of satisfactorily completing required training; (4) medically adaptable to the military environment without the necessity of geographical area limitations; and (5) medically capable of performing duties without aggravation of existing physical defects or medical conditions. DOD Instruction Number 6130.03 on Medical Standards for Appointment, Enlistment or Induction in the Military Service. In light of these standards, the Department seeks comments, particularly from military members and their families, concerning types of injuries or illnesses that may exist prior to service and be aggravated in the line of duty on active duty to such an extent as to render the servicemember unable to perform the duties of the member’s office, grade, rank, or rating. The FY 2010 NDAA requires the Department to define a qualifying serious injury or illness for a veteran. Proposed § 825.127(c)(2) defines serious injury or illness for a covered veteran with three alternative definitions set out in paragraphs (c)(2)(i), (c)(2)(ii), and (c)(2)(iii). Proposed § 825.127(c)(2)(i) defines a serious injury or illness of a covered veteran as a serious injury or illness of a current servicemember, as defined in § 825.127(c)(1), that continues after the servicemember becomes a veteran. Thus, if a veteran suffered a serious injury or illness when he or she was a current member of the Armed Forces and that same injury or illness continues after the member leaves the Armed Forces and becomes a veteran, the injury or illness will continue to qualify as a serious injury or illness warranting military caregiver leave. The Department believes that allowing qualifying family members to take leave to care for covered veterans who continue to suffer from these serious injuries or illnesses is consistent with Congressional intent, as evidenced by the extension of military caregiver leave provisions for veterans for a defined five-year period. As explained below, the Department believes that an eligible employee may take military caregiver leave for the same family member based on the same serious injury or illness when the family member is a current member of the Armed Forces and when the family member becomes a covered veteran. E:\FR\FM\15FEP2.SGM 15FEP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 8968 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules Proposed § 825.127(c)(2)(ii) defines a serious injury or illness for a covered veteran as a physical or mental condition for which the covered veteran has received a Department of Veterans Affairs (VA) Service Related Disability Rating (VASRD) of 50 percent or higher and such VASRD rating is based, in whole or part, on the condition precipitating the need for caregiver leave. The Department’s review indicates that a VASRD disability rating of 50 percent or greater encompasses disabilities or conditions such as amputations, severe burns, post traumatic stress syndrome, and severe traumatic brain injuries. The Department believes that there should be parity between a serious injury or illness of a covered veteran and a serious injury or illness for a current member of the Armed Forces, but also recognizes that veterans are in different circumstances than active duty military members. The standard for a serious injury or illness for current members of the Armed Forces cannot be directly applied to veterans because a veteran no longer has a military office, grade, rank, or rating against which to measure a condition that does not manifest until after the servicemember becomes a veteran. Further, veterans, unlike current military members, may participate in the civilian workforce. The Department believes that a serious injury or illness that substantially impairs a veteran’s ability to secure or follow a substantially gainful occupation by reason of serviceconnected disability should be a qualifying injury or illness for a covered veteran. The Department considered proposing the VASRD rating equal to the level at which, under VA regulations, the veteran is considered to be totally disabled, i.e., that the veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. See 38 CFR 4.16. Section 4.16(a) of the VA regulations clarifies that for a veteran with one disability, a disability rating of 60 percent or higher constitutes a total disability, and for a veteran with two or more disabilities, at least one disability must be rated at 40 percent or more with sufficient additional disabilities to bring the combined rating to 70 percent or higher. However, the Department is concerned that veterans may suffer from injuries and illnesses that do not result in a ‘‘total disability’’ under the VASRD rating system, but which the Department believes should qualify as a serious injury or illness for military caregiver leave. For example, burns resulting in distortion or VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 disfigurement (see 38 CFR 4.118), or psychological disorders resulting from stressful events (see 38 CFR 4.129) occurring in the line of duty on active duty may not result in a VASRD rating of 60 percent or higher, but nonetheless may be severe enough to substantially impair a veteran’s ability to work and therefore should be considered qualifying injuries or illnesses. The Department is particularly concerned that military caregiver leave be available to family members of veterans suffering from, or receiving treatment for such injuries or illnesses, which may include continuing or follow-up treatment for burns, including skin grafts or other surgeries, and amputations, including prosthetic fittings, occupational therapy and similar care. The Department also considered proposing the VASRD disability rating at a percentage below 50 percent. However, the Department determined that a lower threshold may capture injuries and illnesses that Congress did not intend to qualify as serious injuries or illnesses for which employees would be entitled to 26 workweeks of FMLA leave. For example, after a review of the VASRD rating schedules, the Department understands that a 30 percent VASRD rating may encompass conditions such as the loss of one ear (see 38 CFR 4.87), chronic laryngitis (see 38 CFR 4.97), moderate migraine (episodes once per month over several months) (see 38 CFR 4.124(a)), or severe acne (see 38 CFR 4.118). In attempting to achieve parity with the standard of a serious injury or illness for a current member of the Armed Forces, the Department concluded that a VASRD rating of 50 percent will more closely approximate a condition that substantially impairs a veteran’s ability to work. The Department is also concerned that establishment of a two-tier test, as used by the VA to reflect single and multiple disabilities, may be unnecessarily complicated for the purpose of defining a qualifying serious injury or illness for military caregiver leave. Therefore, after a careful review of VA regulations, the Department proposes a single threshold of an overall VASRD rating of 50 percent or higher (whether based on a single or multiple disabilities) as a qualifying serious injury or illness. The Department seeks comments on several aspects of this proposed definition. First, the Department invites comment on whether the VASRD rating of 50 percent is the appropriate level of injury or illness to support a request for military caregiver leave. The Department specifically seeks comment PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 on whether the VASRD rating of 50 percent is the proper percentage of disability to capture all injuries and illnesses that would warrant an employee taking military caregiver leave to care for a covered veteran. Second, while the standard reflects the VA’s determination of a disability with respect to benefits, the Department seeks comment on whether a VASRD rating appropriately correlates to the veteran’s need for care and ability to work, attend school or perform other daily activities. The Department also seeks comment on whether this standard should expressly reference limitations in a veteran’s ability to attend school or perform other regular daily activities. The Department invites comment on whether there are circumstances in which a veteran would be able to work but would nonetheless need care because of an inability to perform other daily activities. Proposed § 825.127(c)(2)(iii) is the third alternative definition of a serious injury or illness for a covered veteran; it covers injuries and illnesses that are not technically within the definition proposed in (c)(2)(i) or (ii), but are of similar severity. The Department recognizes that covered veterans may have injuries or illnesses that are similar in severity to the injuries or illnesses qualifying under proposed (c)(2)(i) but for which the veterans did not obtain certification as a serious injury or illness when they were current members of the military. Similarly, the Department recognizes that covered veterans may have injuries or illnesses that are similar in severity to the injuries or illnesses qualifying under proposed (c)(2)(ii) but for which the veterans have not received a VASRD rating. The Department also recognizes that covered veterans may need a family member to provide care for injuries or illnesses that, absent treatment, would be similar in severity to those qualifying under (c)(2)(i) and (ii). This third alternative definition of serious injury or illness for a covered veteran is intended to capture these types of injuries and illnesses. The Department proposes to define a serious injury or illness for a covered veteran in the third alternative as a physical or mental condition that substantially impairs the veteran’s ability to secure or follow a substantially gainful occupation by reason of a service-connected disability, or would do so absent treatment. This proposed definition is intended to replicate the VASRD 50 percent disability rating standard under (c)(2)(ii) for situations in which the veteran does not have a service-related disability rating from the VA. The Department E:\FR\FM\15FEP2.SGM 15FEP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules expects that, when making determinations of serious injury or illness under this proposed definition, private health care providers will do so in the same way they make similar determinations for Social Security Disability claims and Workers’ Compensation claims. Particularly with respect to Social Security Disability, health care providers must determine that an injury or illness ‘‘substantially impairs’’ the individual and determine whether the individual is able to gain or keep a ‘‘substantially gainful occupation.’’ As noted above, the standard in (c)(2)(ii) is based on VA regulations and disability determinations. For example, a covered veteran with post traumatic stress disorder who is usually able to work may need care from an employeefamily member when an event triggers a reoccurrence of the associated depression and anxiety to a level that the veteran would be unable to work absent treatment. Although paragraph (c)(2)(iii) is intended to have the same degree of incapacity as that set forth in paragraph (c)(2)(ii), a certification of serious injury or illness under this section serves only to establish that the veteran has a condition that entitles his or her family member to military caregiver leave under the FMLA. Such a determination provides no basis for a determination of status, rights, or benefits for the VA or other agencies. The VA is the sole agency qualified to make any rating determination for purposes of VA-related rights or benefits. The Department seeks comments from employees, employers, health care providers, and veterans as well as current military members on this proposed alternative definition. Specifically, the Department seeks comments on whether this proposal will be effective at capturing the serious injuries and illnesses that covered veterans suffer for which caregiving is needed by qualifying employee-family members and which will not be covered under proposed paragraphs (c)(2)(i) and (ii). In addition, the Department seeks comments on the ability of health care providers to certify a serious injury or illness for a covered veteran and the ability of employers to administer leave associated with a serious injury or illness for a covered veteran under this proposed definition. The Department is particularly concerned that this provision comprehensively encompasses traumatic brain injuries, post traumatic stress disorder, and other such conditions that may not manifest until some time after the member has become a veteran. Therefore, the VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 Department also seeks comment on the types of injuries and illnesses that typically manifest after the member becomes a veteran, whether a family member is needed to care for the veteran for such injuries or illness and, if so, whether this proposed definition would cover such situations. The Department notes another means through which the severity of an injured veteran’s disability may be assessed. VA’s Program of Comprehensive Assistance for Family Caregivers (see Caregivers and Veterans Omnibus Health Services Act of 2010, Public Law 111–163 and 38 CFR part 71) is designed to provide health care, travel, training, and financial benefits to certain eligible caregivers of veterans who are eligible for the program. In general, a veteran or servicemember undergoing medical discharge from the Armed Forces, is eligible for VA’s Program of Comprehensive Assistance for Family Caregivers if the individual has incurred or aggravated a serious injury (including traumatic brain injuries, psychological trauma, or other mental disorders) in the line of duty on or after September 11, 2001; the serious injury renders the individual in need of a minimum of six continuous months of personal care services based on a variety of clinical criteria listed under 38 CFR 71.20 (c)(1)–(4); and it is in the best interest of the individual to participate in the program. See 38 CFR 71.20. According to VA, approximately 86 percent of veterans currently enrolled in the program have received a VASRD rating of 50 percent or greater, with approximately 50 percent having received a VASARD rating of 100 percent. In an effort to minimize the burden placed on military families, the Department has worked with VA to understand the requirements that must be met to enroll in VA’s Program of Comprehensive Assistance for Family Caregivers and utilize FMLA leave. Based on the eligibility requirements for VA’s Program of Comprehensive Assistance for Family Caregivers, the Department believes that most veterans who qualify for the program meet the requirement of having a serious injury or illness as defined in this proposal for the purpose of FMLA caregiver leave. Accordingly, the Department is considering adding a fourth alternative to the definition of serious injury or illness of a veteran, enrollment in VA’s Program of Comprehensive Assistance for Family Caregivers, and invites comment on whether this would appropriately help reduce the burden placed on military and veterans’ PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 8969 families in being able to take FMLA leave. As with the three definitions proposed in paragraphs (c)(2)(i)–(iii), enrollment in VA’s Program of Comprehensive Assistance for Family Caregivers would establish only that the veteran has a serious injury or illness, and would not mean that the caregiver is automatically entitled to take FMLA leave. The person seeking to take FMLA military caregiver leave must qualify as a family member under the FMLA and meet the other eligibility criteria, and the veteran must meet the definition of a ‘‘covered veteran’’ in proposed § 825.127(b)(2). The Department seeks comment, especially from caregivers and veterans who are currently enrolled in VA’s Program of Comprehensive Assistance for Family Caregivers, on whether including enrollment in this program as another possible definition for establishing a qualifying serious injury or illness required to take FMLA leave would be helpful to veterans and caregivers in seeking FMLA leave for a covered veteran. Finally, the Department welcomes comments proposing other definitions not included above that would achieve the goals that the proposed definitions seek to achieve—namely, coverage of injuries or illnesses that covered veterans experience that approximate the severity of a serious injury or illness for current members of the military as defined in the statute and regulations. Current § 825.127(c) explains how the ‘‘single 12-month period’’ in which eligible employees are entitled to take up to 26 workweeks of military caregiver leave is applied. This provision is moved to proposed paragraph § 825.127(e) (the numbering of the subparagraphs within this provision remain the same). Proposed paragraph § 825.127(e)(2) (current § 825.127(c)(2)) provides that the 26workweek entitlement is to be applied as a per-covered servicemember, perinjury entitlement. Because the FY 2010 NDAA establishes two distinct categories of covered servicemembers (i.e., a current member of the Armed Forces and a covered veteran) and because military caregiver leave is applied on a per-covered servicemember basis, an eligible employee could potentially take military caregiver leave to care for a covered servicemember who is a current member of the Armed Forces and then, at a later point when the same servicemember becomes a covered veteran, could take a subsequent period of military caregiver leave. The Department notes that all of the normal eligibility requirements, E:\FR\FM\15FEP2.SGM 15FEP2 8970 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS2 such as the hours of service requirement, would apply in such a situation. Additionally, an employee may not take more than a combined total of 26 workweeks of FMLA leave during a ‘‘single 12-month period.’’ The Department seeks comment on this interpretation of the ‘‘single 12-month period’’ limitation. The Department notes that under this provision, an eligible employee may take up to 26 workweeks of leave to care for the same covered servicemember with a subsequent serious injury or illness. As the Department explained in the 2008 final rule, a subsequent serious injury or illness of the same covered servicemember could arise either from an injury or illness incurred by a current member in a subsequent deployment, or from the subsequent manifestation of a second serious injury or illness to either a current member or a covered veteran that relates back to the initial incident. 73 FR 67969. For example, if a servicemember is injured in the line of duty on active duty and suffers severe burns, an eligible employee is entitled to 26-workweeks of caregiver leave. If the servicemember later manifests a traumatic brain injury that was incurred in the same incident as the burns, the eligible employee would be entitled to an additional 26-workweeks of leave to care for the same servicemember. The Department requests comment on whether the current regulatory language is sufficiently clear as to the situations in which an employee would be permitted to take a second period of military caregiver leave due to the subsequent serious injury or illness of the same covered servicemember. Lastly, the Department proposes to make minor edits to internal references throughout this paragraph to reflect the reorganized structure of this section, to delete references to ‘‘as described in paragraph (c) of this section’’ as unnecessary, and to make two minor changes to paragraph (e)(3) (current § 825.127(c)(3)): adding internal numbering to facilitate readability, and changing ‘‘week’’ to ‘‘workweek’’ consistently throughout the paragraph. 4. Section 825.309 Certification Requirements for Leave Taken Because of a Qualifying Exigency The FY 2010 NDAA amends 29 U.S.C. 2613(f), which addresses certification for qualifying exigency leave. Accordingly, as it did in § 825.126, the Department proposes to substitute ‘‘covered active duty’’ for ‘‘active duty’’ wherever it appears in this section. Consistent with the proposed change in § 825.126, the Department also proposes to substitute ‘‘military member’’ or VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 ‘‘member’’ for ‘‘covered military member’’ wherever it appears. Proposed § 825.309(a) follows current § 825.309(a) and states that the first time an employee requests leave because of a qualifying exigency, an employer may require the employee to provide a copy of the military member’s covered active duty orders or other documentation issued by the military which indicates that the military member is on covered active duty or call to covered active duty status, and the dates of the military member’s covered active duty service. This information need only be provided once to the employer, unless a need for qualifying exigency leave arises out of a different call to covered active duty status of the same military member or the call to covered active duty status of a different military member. The Department proposes to delete the phrase ‘‘in support of a contingency operation’’ from current § 825.309(a) to reflect the expansion of qualifying exigency leave to family of the Regular Armed Forces. As discussed in § 825.126, the contingency operation requirement does not apply to members of the Regular Armed Forces. As previously discussed, the FY 2010 NDAA amended the qualifying exigency provisions to require that both members of the Reserve components and members of the Regular Armed Forces be deployed to a foreign country in order for their service to be considered covered active duty entitling their family members to qualifying exigency leave. It is the Department’s understanding that the military member’s active duty orders will specify the location of the deployment and will provide sufficient information to establish that the duty is, in fact, covered active duty. Both current and proposed § 825.309(a) permit an employee to use either a copy of the military member’s active duty orders or ‘‘other documentation issued by the military’’ to establish that the military member is on covered active duty or call to covered active duty status. The Department has received information from employees and employers indicating that family members have experienced difficulty obtaining copies of active duty orders or that the available documentation is insufficient to comply with current certification requirements. The Department specifically seeks feedback from the public on whether active duty orders of members of the Regular and Reserve components of the Armed Forces contain sufficient information to determine that the call to covered active duty involves deployment to a foreign country (and, in the case of the Reserve PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 components that the member is being called up in support of a contingency operation), and, if not, what other documentation would meet the certification requirements. The Department also seeks comment on whether employees have experienced difficulty in obtaining copies of active duty orders or other military documents establishing their family member’s covered service, and whether employers have experienced difficulty in confirming covered service. As with other FMLA certifications, the certification process for qualifying exigency leave is optional for the employer. Accordingly, the proposal revises the regulatory language at § 825.309(a) to make it clear that new active duty orders or documentation do not automatically need to be provided; rather new active duty orders or documentation need only be provided upon request by the employer. The proposed change is consistent with the general certification process, which provides that an employer may require certification upon an employee request for qualifying exigency leave. Current § 825.309(b) addresses information that may be required to support a request for qualifying exigency leave. Consistent with the proposed expansion of Rest and Recuperation qualifying exigency leave to be equivalent to the period of time the military member has for such leave, up to 15 days, the Department believes that it is appropriate for the employee to provide a copy of the military member’s Rest and Recuperation orders in order to determine the specific leave period available. The Department therefore proposes a new § 825.309(b)(6) to require that certification of qualifying exigency leave for Rest and Recuperation include a copy of the members Rest and Recuperation leave orders, or other documentation issued by the military, and the dates of the leave. No other change is proposed to § 825.309(b). Current § 825.126(c) identifies an optional-use Form WH–384 which may be used in requesting qualifying exigency leave and states that another form containing the same basic information may be used by an employer as long as no information beyond that specified in this section is required. As discussed above, the Department proposes to delete the optional-use forms from the Appendices to part 825. Accordingly, the Department proposes to delete the reference in current § 825.309(c) to Appendix H and proposes to add language explaining that Form WH–384 may be obtained from local Wage and E:\FR\FM\15FEP2.SGM 15FEP2 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS2 Hour offices or the Wage and Hour Web site. No other changes are proposed for § 825.309(c). Current § 825.309(d) indicates that where a complete and sufficient certification is submitted in support of a request for leave, an employer may not request additional information from an employee. Where the qualifying exigency involves a third party, employers may contact the individual or entity for purposes of verifying the meeting or appointment and the nature of the meeting. The employee’s permission is not required to conduct such verification, but the employer may not request additional information. Employers may also contact the appropriate unit of the DOD to verify that the military member is on active duty or call to active duty status; no additional information may be requested and the employee’s permission is not required for such verification. The Department solicits information on how this provision has been working for employers and employees. The Department would like to know whether any privacy issues have arisen for employees, or whether any employees have been denied qualifying exigency leave because their employers have been unable to verify their leave requests. The Department also seeks information on whether employers have encountered any difficulties in making third party verifications, and if so, why and whether they have denied an employee leave as a result. 5. Section 825.310 Certification for Leave Taken To Care for a Covered Servicemember (Military Caregiver Leave) Section 825.310 sets forth the certification process and the elements of a complete certification for military caregiver leave. Current § 825.310(a) permits an employer to require that a request for leave to care for a covered servicemember with a serious injury or illness be supported by a certification issued by an authorized health care provider, defined as: (1) A DOD health care provider; (2) a VA health care provider; (3) a DOD TRICARE network authorized private health care provider; or (4) a DOD non-network TRICARE authorized private health care provider. Thus, current paragraph (a) limits the type of health care providers who may complete a medical certification for military caregiver leave for current members of the military. Proposed paragraph § 825.310(a)(5) adds health care providers, as defined by regulation in § 825.125, as a fifth component to the definition of an VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 authorized health care provider from whom medical certification can be obtained for a serious injury or illness. The Department understands that in some circumstances, for example when seeking treatment for a mental health condition, some current servicemembers may wish to seek care from a health care provider unaffiliated with DOD. The Department believes that a family member of a current servicemember who is seeking treatment outside of the military’s network for an injury or illness that was incurred or aggravated in the line duty on active duty should be eligible for FMLA leave under this provision. As such, the Department no longer believes that it is appropriate to limit a current servicemember’s selection of health care provider more than it is limited for an individual seeking FMLA leave for a serious health condition. The expansion of authorized health care providers will apply equally to covered servicemembers who are covered veterans. The Department understands that veterans may use private health care providers rather than DOD, VA, TRICARE network health care providers, and some veterans may no longer be entitled to seek care through DOD or VA affiliated health care providers. Veterans may also be covered by the private health care plans of a spouse or parent and may utilize the services of private health care providers through these plans. Whether it is because there is no VA center in the area or due to other circumstances, the Department believes that families of veterans should be able to rely upon the determination of the veteran’s own private health care provider, who otherwise meets the definition of an FMLA health care provider at § 825.125, in determining if the treated condition is a qualifying serious injury or illness. The Department also believes that expanding the pool of health care providers will avoid increasing the administrative burdens on the VA and DOD. The Department invites comment on the proposal to allow any FMLA health care provider as defined in § 825.125 to certify a serious injury or illness for military caregiver leave. While the Department believes that it is appropriate to include as authorized health care providers under this section health care providers as defined in § 825.125, the Department is nonetheless concerned that private health care providers will not have the specialized information available to DOD, VA, and TRICARE network health care providers that is necessary to make several of the military-related determinations, and may need to obtain PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 8971 that information from DOD or VA in order to make a determination of whether the condition is related to the covered servicemember’s service and/or whether the condition meets the definition of serious injury or illness. The Department seeks comments related to the available processes for a private health care provider to obtain information related to whether an injury or illness was incurred in the line of duty while on active duty or whether the covered servicemember’s injury or illness existed before beginning service and was aggravated by service in the line of duty while on active duty. The Department also seeks comments on whether a covered servicemember will have a copy of medical records from his or her military service, or would the covered servicemember, or family member, be able to access medical records or other documentation that would support the determination that an injury or illness was incurred in the line of duty while on active duty, and the types of documentation that may be available to the covered servicemember or family member. Specific to veterans, the Department seeks comment on whether a veteran or family member has access to documentation of a VASRD disability rating. Current § 825.310(b) sets forth the information an employer may request from the health care provider in order to support the employee’s request for leave. The Department proposes to modify paragraphs (b)(1)–(4), as discussed below. The Department proposes no other changes to § 825.310(b). Current § 825.310(b) permits an authorized health care provider who is unable to make certain military determinations to rely on determinations from an authorized DOD representative. In light of the extension of military caregiver leave to covered veterans, proposed § 825.310(b) indicates that an authorized health care provider may rely on military-related determinations from an authorized DOD representative or an authorized VA representative. Current § 825.310(b)(1) allows an employer to request certain information from the health care provider. Consistent with the Department’s proposal to allow covered servicemembers to utilize any health care provider as defined in § 825.125, the Department proposes to add a new provision (b)(1)(v) clarifying that the medical certification may be provided by a health care provider as defined by § 825.125. Current paragraph (b)(2) allows an employer to request information that specifies whether the covered servicemember’s injury or illness was E:\FR\FM\15FEP2.SGM 15FEP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 8972 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules incurred in the line of duty while on active duty. The Department proposes to add language to this paragraph to allow an employer to obtain information that specifies whether the covered servicemember’s injury or illness existed before beginning service and was aggravated by service in the line of duty while on active duty. The proposed language incorporates the FY 2010 NDAA statutory amendment to the definition of serious injury or illness which provides that a serious injury or illness for both current members of the military and covered veterans includes an injury or illness that existed before the beginning of the member’s active duty and was aggravated by service in the line of duty on active duty in the Armed Forces. The Department seeks comment on what processes are or may be used to determine that an injury or illness existed prior to active duty service and was aggravated by service in the line of duty on active duty. Comment is also sought on the basis a non-DOD or non-VA health care provider would determine that an injury or illness is a condition that existed before the military member’s service and was aggravated in the line of duty on active duty. Current § 825.310(b)(3) allows an employer to request the approximate date on which the serious injury or illness commenced and its probable duration. In light of the statutory amendments to the definition of serious injury or illness, proposed § 825.310(b)(3) allows an employer to request the approximate date on which the serious injury or illness commenced or was aggravated and its probable duration. Current § 825.310(b)(4) allows an employer to request a statement of appropriate medical facts regarding the covered servicemember’s health condition for which leave is requested and specifies what medical facts must be included in a certification in order to support the need for leave. The Department proposes to move the description of what medical facts must be included in the certification for a serious injury or illness of a current member of the military from current § 825.310(b)(4) to proposed § 825.310(b)(4)(i). Proposed § 825.310(b)(4)(i) retains the same requirements as in current paragraph (b)(4) that a sufficient certification for a serious injury or illness of a current member of the military must include information on whether the injury or illness may render the current servicemember unfit to perform the duties of the servicemember’s office, grade, rank, or rating and whether the VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 servicemember is receiving medical treatment, recuperation, or therapy. The Department further proposes to describe in § 825.310(b)(4)(ii) what medical facts must be included in the certification for an injury or illness of a covered veteran. Proposed § 825.310(b)(4)(ii) states that a sufficient certification for a serious injury or illness of a covered veteran must include information on whether the veteran is receiving medical treatment, recuperation, or therapy for an injury or illness that is a continuation of a serious injury or illness that was incurred or aggravated when the veteran was a member of the Armed Forces; involves a physical or mental condition for which the veteran has received a VASRD rating of 50 percent or higher, and that such VASRD rating is based, in whole or in part, on the condition precipitating the need for caregiver leave; or, a physical or mental condition that substantially impairs the veteran’s ability to secure or follow a substantially gainful occupation by reason of a service-connected disability or disabilities, or would do so absent treatment. As noted earlier, the Department is considering adding enrollment into VA’s Program of Comprehensive Assistance for Family Caregivers as another possible definition for establishing a qualifying serious injury or illness for a covered veteran. The Department seeks comments on whether the medical documentation required for enrollment in the VA’s Program for Comprehensive Assistance for Family Caregivers provides sufficient medical facts to support the need for FMLA leave. The Department notes that under the current proposed definition of serious injury or illness of a veteran, medical documentation prepared in connection with the VA’s Program of Comprehensive Assistance for Family Caregivers may be submitted as part of the FMLA certification process under proposed § 825.127(c)(2)(ii) and (c)(2)(iii). To the extent that additional information is necessary to establish a complete and sufficient FMLA certification (i.e., information showing the relationship of the employee to the covered servicemember for whom the employee is requesting leave to care), the employee seeking leave would be responsible for providing the employer with the additional information. Current § 825.310(c) outlines the information that employers may require from employees as part of the certification. No change is proposed to current § 825.310(c)(1)–(5). The Department proposes to add a new paragraph (c)(6) and renumber current paragraph (c)(6) as (c)(7). Proposed PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 paragraph (c)(6) permits an employer to require that the employee or covered servicemember indicate whether the member is a veteran, the date of separation, and whether the separation was other than dishonorable. It also permits the employer to request documentation confirming this information, and permits the employee to provide a copy of the veteran’s DD Form 214 or other proof of veteran status to satisfy such documentation requirement. Current § 825.310(d) identifies an optional-use form that may be used to provide certification for military caregiver leave. As discussed above, the Department proposes to delete the forms from the Appendices and therefore proposes in paragraph (d) to delete the reference to Appendix H and instead to insert language stating that the applicable form may be obtained either from a local WHD office or the WHD Web site. The Department intends to amend current form WH–385 to reflect that a health care provider as defined in § 825.125 may certify a serious injury or illness for a current servicemember. The Department is also considering the development of a new form to capture the above identified information for military caregiver leave for a covered veteran. The Department seeks comments on whether it will be less confusing to develop two forms to use for military caregiver certification or whether adapting the current WH–385 would be preferable. Current § 825.310(d) also provides that an employer may seek authentication and/or clarification of the certification for military caregiver leave; however, second and third opinions are not permitted. In the 2008 final rule, the Department reasoned that the statutory standard for determining whether a military member has a serious injury or illness is dependent on several determinations which can only be made by the military. Therefore, it would be inappropriate to permit second and third opinions regarding those determinations. 73 FR 68029. With the proposed change to allow families of covered servicemembers to rely upon the determination of health care providers unaffiliated with DOD, VA, or TRICARE, the certification process, when done by a private health care provider that is not one of the types identified in § 825.310(a)(1)–(4), is more akin to the certification process for the serious health condition of civilian family members. Therefore, the Department believes that in such situations there is no basis to prohibit employers from obtaining second and third opinions. Consequently, the E:\FR\FM\15FEP2.SGM 15FEP2 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS2 Department proposes in § 825.310(d) to state that second and third opinions are not permitted when the certification has been completed by one of the types of health care providers identified in § 825.310(a)(1)–(4), but second and third opinions are permitted when the certification has been completed by a health care provider that is not one of the types identified in § 825.310(a)(1)– (4). The Department seeks comment on the proposal to permit second and third opinions on military caregiver leave certifications that are completed by health care practitioners who are not affiliated with the military or VA. No changes are proposed for § 825.310(e), which addresses the use of ‘‘invitational travel orders’’ (ITO) or ‘‘invitational travel authorizations’’ (ITA) issued for medical purposes, in lieu of a certification form, other than to update internal references. However, the Department seeks comment on the effectiveness of the substitution of ITOs and ITAs in support of a need for military caregiver leave. Current § 825.310(f) states that it is the employee’s responsibility to provide the employer with a complete and sufficient certification and describes the consequences of failing to do so. The Department proposes to add text that clarifies this requirement, providing that ‘‘an employee may not be held liable for administrative delays in the issuance of military documents, despite the employee’s diligent, good-faith efforts to obtain such documents.’’ While current § 825.305(b) already provides that employees who are unable to provide requested FMLA certification (including certification for military caregiver leave) within 15 days despite their diligent, good faith efforts must be provided with additional time, the Department believes that it is important to reiterate this principle in § 825.310(f). As discussed in the preamble to the 2008 final rule, the Department acknowledges concerns regarding timely receipt of military documentation and hopes to clarify that employees may not be held responsible for administrative delays in the issuance of military documents where a good faith attempt is made by the employee to obtain such documents. 73 FR 68011. B. Revisions To Implement the AFCTCA Amendments 1. Section 825.110 Eligible Employee Current § 825.110 sets forth the eligibility standards an employee must meet in order to take FMLA leave. To be eligible, an employee must have been employed by the employer for at least 12 months, must have been employed VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 for at least 1,250 hours of service in the 12-month period immediately preceding the commencement of the leave, and must be employed at a worksite where 50 or more employees are employed by the employer within 75 miles. Whether an employee has worked the required 1,250 hours of service is based on FLSA hours-worked principles contained in 29 CFR 785. The Department proposes revisions to § 825.110(a), (c), and (d) to reflect the AFCTCA’s expanded definition of the ‘‘hours of service’’ requirement for airline flight crew employees. No changes are proposed to § 825.110(b) and (e). Section 825.110(a) sets forth the general employee eligibility requirements. In § 825.110(a)(2) the Department proposes to add a reference to proposed paragraph § 825.110(c)(2), which sets forth the hours of service requirement for airline flight crew employees. No other changes are proposed in § 825.110(a). Current § 825.110(b)(2)(i) concerns determining an employee’s eligibility when there is a break in service occasioned by the fulfillment of the employee’s National Guard or Reserve military service. The Department proposes to modify the language in the first sentence to reference the Uniformed Services Employment and Reemployment Rights Act (USERRA) and to clarify that the protections afforded by USERRA extend to all military members (active duty and reserve) returning from USERRAqualifying military service. Current § 825.110(c)(2) provides rules pursuant to USERRA for crediting an employee returning from a National Guard or Reserve obligation with the hours of service that would have been performed but for the military service when evaluating whether the ‘‘hours of service’’ eligibility requirement has been met. The Department proposes to renumber current paragraph (c)(2) as paragraph (c)(3) and to spell out the title of USERRA, which is currently referred to in this section by the acronym only. In addition, the Department proposes to modify the language in the first sentence of this paragraph in recognition that USERRA rights may extend to certain employees returning to civilian employment from service in the Regular Armed Forces. The Department also proposes to modify this paragraph to refer more generally to the hours of service requirement. The AFCTCA requires employers to calculate hours of service for eligibility in a different manner for airline flight crew employees. The Department proposes to separately define the hours of service eligibility requirement for PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 8973 these employees in proposed § 825.110(c)(2) and (c)(3). The Department notes that the hours of service requirement will continue to be determined based on ‘‘hours worked’’ as defined under the FLSA for all employees other than airline flight crew employees. Proposed paragraph § 825.110(c)(2) states the AFCTCA requirement that the hours of service criteria will be met if during the previous 12-month period the airline flight crew employee has worked or been paid for not less than 60 percent of the applicable monthly guarantee and has worked or been paid for not less than 504 hours (not including personal commute time or time spent on vacation leave or sick or medical leave). Proposed paragraph § 825.110(c)(2)(i) states the statutory definition of applicable monthly guarantee for airline flight crew employees on reserve and non-reserve status. The Department proposes to refer to airline flight crew employees who are not on reserve status as ‘‘line holders’’, which the Department understands to reflect industry terminology. The applicable monthly guarantee is determined by the employer’s policies or collective bargaining agreement and differs depending on whether the airline flight crew employee is a line holder or on reserve status and on the employee’s job classification (i.e., pilot, co-pilot, flight attendant, or flight engineer). For airline employees who are on reserve status, the applicable monthly guarantee means the number of hours for which an employer has agreed to pay the employee for any given month. For line holders, the applicable monthly guarantee is the minimum number of hours for which an employer has agreed to schedule such employee for any given month. It is the Department’s understanding that the schedule for line holders is based on duty hours, and that duty hours include the flight or block hours as determined by the Federal Aviation Administration (FAA) as well as additional time before and after the flight as determined by employer policy or applicable collective bargaining agreement. The Department seeks comments on whether this is an accurate interpretation of what comprises the line holders’ scheduled hours, or whether some other basis such as flight or block hours would be more appropriate for this calculation. In § 825.110(c)(2)(ii) the Department proposes to base the number of hours that an airline flight crew employee has worked on the employee’s duty hours during the previous 12-month period. While duty hours may not always reflect all hours that would be considered E:\FR\FM\15FEP2.SGM 15FEP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 8974 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules hours worked under the FLSA, it is the Department’s understanding that duty hours are closely tracked in a similar manner by all employers in the industry. Therefore, the Department believes that duty hours provide the most accurate and uniform basis for making eligibility determinations for hours of service for airline flight crew employees. Regarding the calculation of the number of hours that an airline flight crew employee has been paid, it is the Department’s understanding that all airline flight crew employees are generally paid on an hourly basis, and that these hours are routinely tracked by each airline. The hours an airline flight crew employee has been paid is the number of hours for which an employee received wages during the previous 12month period. As required by the AFCTCA, personal commute time, vacation, and medical or sick leave do not count towards the hours worked or paid calculation. The Department notes that airline flight crew employees are eligible if they have either the required number of ‘‘hours worked’’ or ‘‘hours paid’’. The Department invites comments on whether these calculation methods for hours worked and hours paid are the most appropriate bases for determining whether an airline flight crew employee has worked or been paid for 504 hours during the previous 12month period. The Department proposes to renumber current paragraph § 825.110(c)(3), which explains an employer’s burden when it does not maintain accurate records of hours worked for an employee, as new § 825.110(c)(4), and to add language clarifying the application of this rule to airline flight crew employees. Finally, the Department proposes to replace the phrase ‘‘worked for the employer for at least 1,250 hours’’ in the first sentence of current § 825.110(d) with the more general ‘‘met the hours of service requirement’’, to provide uniformity with the rest of the section in reflecting the AFCTCA requirements. The Department also proposes to replace the general reference to ‘‘eligibility requirements’’ in the second sentence of this paragraph with a specific reference to the ‘‘12-month eligibility requirement’’ to clarify the application of this principle. The Department seeks comments on all aspects of the application of the AFCTCA eligibility provisions, particularly on the proposal to interpret the requirement of 504 hours worked to be 504 hours of duty time, as well as the Department’s understanding that scheduled hours for line holders encompasses duty hours. The VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 Department recognizes that the airline industry has unique timekeeping practices and it is the Department’s intent to utilize existing industry records to make FMLA eligibility determinations. 2. Section 825.205 Increments of FMLA Leave for Intermittent or Reduced Schedule Leave Section 825.205 of the current regulations explains how to count increments of leave in cases of intermittent or reduced schedule leave. The Department proposes several changes to this section. The changes implement the AFCTCA provisions and address how FMLA leave usage is counted for all employees. Current § 825.205(a) defines the minimum increment of FMLA leave to be used when taken intermittently or on a reduced schedule as an increment no greater than the shortest period of time that the employer uses to account for other forms of leave, provided that it is not greater than one hour. The Department proposes to add language to paragraph (a)(1) stating that an employer may not require an employee to take more leave than is necessary to address the circumstances that precipitated the need for leave. This concept was included in § 825.203(d) of the 1995 final rule. The Department believes it is appropriate to reinsert it into the regulations to emphasize the statutory requirement that an employee’s FMLA leave entitlement not be reduced beyond the amount of leave actually taken in accounting for leave taken on an intermittent or reduced schedule basis. 29 U.S.C. 2612(b)(1). The proposed regulatory text makes clear that this principle is subject to the increment of leave rule set forth in this paragraph as well as to the physical impossibility rule in paragraph (a)(2) and the special rules for intermittent leave for school employees in §§ 825.601 and 825.602. As explained in the 2008 final rule, the other situation in which an employee may use more FMLA leave than necessary to address the circumstances requiring leave is when the employee elects to substitute paid leave and must use a larger amount of leave in order to satisfy the employer’s paid leave policy. In such instances, the entire period of leave taken is FMLA-protected and counts against the FMLA entitlement. 73 FR 67981. While an employer can require an employee to utilize a larger amount of FMLA leave than necessitated by the FMLA condition if the employee wishes to substitute paid leave, the employee always has the option to take unpaid PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 FMLA leave in the smallest increment of leave used by the employer. The Department also proposes to add to paragraph (a)(1) language from the preamble to the 2008 final rule that further clarifies two important aspects of the calculation of FMLA leave. First, the Department proposes to add an example to illustrate the principal that where an employer uses different increments to account for different types of leave (e.g., sick leave in one-half hour increments and annual leave in increments of one hour), the employer must use the smallest of the increments to account for FMLA leave usage. 73 FR 67976. Additionally, the Department proposes to clarify in the regulatory text that FMLA leave may only be counted against an employee’s FMLA entitlement for leave taken and not for time that is worked for the employer. Id. Accordingly, where an employer chooses to waive its increment of leave policy in order to return an employee to work—for example where an employee arrives a half hour late to work due to an FMLA-qualifying condition and the employer waives its normal one hour increment of leave and puts the employee to work immediately—only the amount of leave actually taken by the employee may be counted against the FMLA entitlement. The Department believes these clarifications in the regulatory text will aid employers and employees in understanding the application and counting of FMLA leave usage. Current § 825.205(a)(1) also permits employers to utilize different increments of FMLA leave at different times of the day or shift under certain circumstances. Under this provision, for example, if an employer utilizes a larger increment of leave at the beginning or the end of a shift an employee needing FMLA leave during those periods may be required to take the leave in the size of the smallest increment of leave permitted at that particular time. The Department’s enforcement experience indicates some confusion regarding this provision including some employers who have interpreted this language to permit the use of a larger increment of FMLA leave at certain points in a shift than the increment used for other forms of leave in the same time period. Consequently, the Department proposes to remove the language allowing for varying increments at different times of the day or shift in favor of the more general principle of using the employer’s shortest increment of any type of leave at any time. The Department requests comment on the proposal to remove this language from the regulations. E:\FR\FM\15FEP2.SGM 15FEP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules Current § 825.205(a)(2) sets forth the physical impossibility provision which provides that where it is physically impossible for an employee to commence or end work mid-way through a shift, the entire period that the employee is forced to be absent is counted against the employee’s FMLA leave entitlement. The Department has reviewed this position in connection with the AFCTCA because of the impact of the physical impossibility provision on the airline industry. As discussed in the preamble to the 2008 final rule, the physical impossibility provision is intended to apply only in very narrow circumstances. 73 FR 67977. The Department is concerned, however, that the provision may be being applied more broadly than intended. Accordingly, the Department proposes adding language at paragraph (a)(2) emphasizing that it is an employer’s responsibility to restore an employee to his or her same or equivalent position at the end of any FMLA leave as soon as possible. The proposed language further emphasizes the Department’s intent that the physical impossibility provision be applied in only the most limited circumstances and only where it is, in fact, physically impossible to allow the employee to leave his or her shift early or to restore the employee to his or her same position or to an equivalent position at the time the employee no longer needs FMLA leave. Thus, for example, if after three hours of FMLA leave use it was physically possible to restore a flight crew employee to another flight, the employer would be required to do so. If, however, no other flight is available to which the employee could be assigned, or no other equivalent work is available, restoration could be delayed and the employee’s FMLA entitlement reduced for the entire period the employee is forced to be absent. The Department reiterates that employers have an obligation not to discriminate between employees taking FMLA leave and employees taking other forms of leave in restoring employees or offering alternative work. 73 FR 679678. Alternatively, the Department is considering deleting the physical impossibility provision in its entirety. The 2008 final rule explained that the Department intended the provision to protect employees from discipline when a short FMLA-protected absence resulted in a much longer absence because of the unique nature of the worksite. 73 FR 67977. However, the Department is concerned that this exception may be misused, delaying restoration in instances where VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 restoration to an equivalent position is possible or where restoration to the same position may be possible but inconvenient to the employer. The Department seeks comments on whether the physical impossibility provision has indeed protected employees from inappropriate discipline, or if it has been misused to unduly extend employees’ FMLA leave and diminish their FMLA entitlement, and whether it should be retained in the regulations. Current § 825.205(b) addresses the rules concerning the calculation of leave usage when leave is taken on an intermittent or reduced leave schedule (calculation of leave for airline flight crew employees is separately addressed in § 825.205(d)). The Department proposes only clarifying changes to this paragraph. The Department proposes to include in the regulatory text language from the 2008 final rule preamble to reinforce the requirement that the employee’s total available entitlement is 12 workweeks (or 26 workweeks in the case of military caregiver leave), that FMLA leave does not accrue at any particular hourly rate, and that the specific number of hours contained in the workweek is dependent upon the hours the employee would have worked but for the taking of the FMLA leave. 73 FR 67978. The Department also proposes minor edits making uniform the references to fractions contained in this paragraph. Current § 825.205(c) addresses when overtime hours that are not worked may be counted as FMLA leave. The Department proposes to change the term ‘‘serious health condition’’ in the last sentence in paragraph (c) to ‘‘FMLA qualifying reason.’’ This editorial change is consistent with the language used in the first sentence of the paragraph and more accurately reflects that overtime hours missed by an employee may be due to any FMLAqualifying reason and are not limited to a serious health condition. Proposed § 825.205 (d)(1) provides the method for calculating leave usage for airline flight crew employees who are line holders and is based on principles established for the calculation of leave for all employees found in paragraph (b)(1) of this section. For line holders, the number of duty hours scheduled will be used in determining the employee’s workweek for purposes of calculating FMLA leave usage. Duty hours scheduled means the hours that the individual employee is scheduled to work in the workweek in which FMLA leave is needed. It is the Department’s understanding that the line or block awarded to the employee would readily yield the duty hours scheduled for any PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 8975 given week. Further, it is the Department’s understanding that duty hours include the flight or block hours as determined by the FAA, as well as the additional time before and after the flight encompassing pre- and post-flight duties, as determined by employer policy or applicable collective bargaining agreement. The Department believes the employee’s duty time best represents the time spent on the job and provides an accurate characterization of the time needing job protection in the event FMLA leave is needed by the employee. Proposed paragraph (d)(2) of this section provides the method for calculating leave usage for airline flight crew employees on reserve status. The Department proposes to base the leave entitlement and calculation of the employee’s workweek on an average of the greater of the applicable monthly guarantee or actual duty hours worked over the prior 12 months. Under this proposal, the employee’s average workweek would be calculated by adding the greater of the applicable monthly guarantee (the number of hours for which an employer has agreed to pay the employee for any given month) or actual duty hours worked in each of the previous 12 months and dividing by 52 weeks per year. This average workweek would be the basis for FMLA leave usage for the 12-month FMLA leave year. For example, if a reserve flight attendant has worked or been paid an average of 20 hours per week over the prior 12 months, the employee would be entitled to 12 workweeks of 20-hours for FMLA leave (or 26 workweeks in the case of leave to care for a covered servicemember). If the flight attendant needs four hours of FMLA leave in one workweek, the employee would use one-fifth (1⁄5) of a workweek (4 hours ÷ 20 hours/workweek). The principles established for the calculation of leave for all employees found in paragraph (b)(1) of this section continues to apply to these airline flight crew employees. Due to the Department’s understanding of the variation in scheduling and actual hours worked by reserve airline flight crew employees and variation during different times of the year, the Department proposes this averaging method for calculating FMLA leave usage. The Department acknowledges that, as with any averaging method, actual workweeks will vary in any given situation. In developing a proposed method to calculate FMLA-leave usage for airline flight crew employees on reserve status, the Department considered a methodology based on FLSA principles of ‘‘hours worked,’’ as is used for E:\FR\FM\15FEP2.SGM 15FEP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 8976 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules employees other than airline flight crew employees. However, airline flight crew employees are not paid strictly on a FLSA ‘‘hours worked’’ basis but rather based in part on the applicable monthly guarantee. Airline flight crew employees on reserve status may work all, few, or none of the hours for which they are paid in a given month. Thus, after considering applying the FLSA ‘‘hours worked’’ method of leave calculation to airline flight crew employees, the Department concluded that the unique way in which airline flight crew employees are scheduled and paid made this methodology impracticable. Through consultations with airline employers and employee representatives, the Department understands that airlines are already tracking and recording airline flight crew employees’ hours in a number of ways pursuant to FAA regulations, including flight hours, duty hours, and mandatory rest periods. See 14 CFR pt. 91. The Department believes that imposing a FLSA ‘‘hours worked’’ methodology on the airline industry and thus mandating yet another recordkeeping system would be unduly burdensome and costly for employers, as well as unnecessarily confusing for employees. Rather, the Department believes the method of averaging in proposed paragraph (d)(2) is better suited to the variable scheduling of reserve airline flight crew members. Additionally, the method proposed is consistent with current § 825.205(b)(3), which provides that, where an employee’s schedule varies from week to week to such an extent the employer is unable to determine the hours the employee would have worked but for the taking of FMLA leave, the employer has the option to establish a leave entitlement by using the weekly average of the hours scheduled over the 12 months prior to the beginning of the leave period. The Department believes proposed paragraph (d)(2) is consistent with current FMLA calculation methods, best reflects Congressional intent, and will provide access to FMLA leave for the largest number of flight crew employees without requiring dramatic changes to existing industry systems. The Department also understands that some line holders may also request additional work in reserve status. Where an employee is both a line holder and on reserve status, the Department proposes that the leave calculation should be made using the method set forth for reserve airline flight crew employees, as this method is flexible enough to encompass both the applicable monthly guarantee and duty VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 hours. The Department requests comment on industry practice in this area and application of the FMLA regulations to such a scenario. The Department also seeks comment on the proposed calculation of leave methods for both line holders and airline flight crew employees on reserve status and welcomes suggestions for alternative methods that equitably reflect the employee’s total normally scheduled hours and actual FMLA leave taken. 3. Section 825.500 Requirements Recordkeeping Current § 825.500 details the recordkeeping requirements under the FMLA. The Department proposes to add a new sentence at the end of paragraph (g) setting forth the employer’s obligation to comply with the confidentiality requirements of the Genetic Information Nondiscrimination Act of 2008 (GINA). To the extent that records and documents created for FMLA purposes contain ‘‘family medical history’’ or ‘‘genetic information’’ as defined in the GINA, employers must maintain such records in accordance with the confidentiality requirements of Title II of GINA. GINA permits genetic information, including family medical history, obtained by the employer in FMLA records and documents to be disclosed consistent with the requirements of the FMLA. The Department proposes to define in a new paragraph (h) the statutory requirement that employers of airline flight crew employees maintain on file with the Secretary certain records. Consistent with other recordkeeping requirements, proposed paragraph (h) makes clear that records are to be maintained by the employer by making, keeping, and preserving records in accordance with the requirements already delineated in § 825.500, with no actual submission to the Secretary unless requested. Additionally, proposed paragraph (h)(1) outlines additional records that are required to be kept specific to employers of airline flight crew employees. These additional records include any records or documents that specify the applicable monthly guarantee for each type of employee to whom the guarantee applies, including any relevant collective bargaining agreements or employer policy documents that establish the applicable monthly guarantee; as well as records of hours scheduled, in order to be able to apply the leave calculation principles contained in proposed § 825.205(d). PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 C. Proposed Revisions to Forms, Appendices, and Definitions 1. Section 825.300 Employee and Employer Rights and Obligations Under the Act As previously discussed, the Department is proposing to delete the Appendices to part 825 and to provide copies of the optional use forms and the poster through local Wage and Hour Offices and the Wage and Hour Web site. References to the Appendices have been deleted from the following sections: § 825.300 (Employer notice requirements), § 825.306 (Content of medical certification for leave taken because of an employee’s own serious health condition or the serious health condition of a family member), § 825.309 (Certification for leave taken because of a qualifying exigency), § 825.310 (Certification for leave taken to care for a covered servicemember (military caregiver leave)), and § 825.800 (Definitions). The Department also proposes minor edits to § 825.300 to reflect provisions of the FY 2010 NDAA and AFCTCA. 2. Section 825.800 Definitions The current § 825.800 contains the definitions of significant terms, phrases, and acronyms used in the regulations. The Department proposes to move this section of the regulations to § 825.102. This reorganization is intended to enhance the utility of the regulations by defining terms before they are used and in advance of the substantive provisions. Moving the definitions section to the beginning of the regulations is consistent with other regulations implementing statutes administered by the WHD. The Department proposes to make changes to definitions and regulatory references in this section to maintain consistency with the Department’s proposed changes to the regulatory text. Specifically, the terms modified are covered servicemember, eligible employee, serious injury or illness, and son or daughter on covered active duty or an impending call or order to covered active duty. Only the references were updated to contingency operation, next of kin of a covered servicemember, outpatient status, parent of a covered servicemember, and son or daughter of a covered servicemember. In addition, the Department proposes terms be added or removed to reflect the regulatory changes made to incorporate the FY 2010 NDAA and AFCTCA amendments to the regulations. The terms added are airline flight crew employee, covered active duty or call to covered active duty status, applicable E:\FR\FM\15FEP2.SGM 15FEP2 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS2 monthly guarantee, line holder, and covered veteran. The terms removed are active duty or call to active duty status and covered military member. The Department also proposes to add terms previously not listed in this section but used in the current regulations and unchanged by this NPRM as an aid and service to the reader. These terms are ITO or ITA, key employee, military caregiver leave, reserve components of the Armed Forces, and TRICARE. IV. Paperwork Reduction Act In accordance with the requirements of the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., and its attendant regulations, 5 CFR part 1320, the Department seeks to minimize the paperwork burden for individuals, small businesses, educational and non-profit 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. Persons are not required to respond to the information collection requirements as contained in this proposal unless and until they are approved by the Office of Management and Budget (OMB) under the PRA at the final rule stage. This paperwork burden analysis estimates the burdens for the proposed regulations as drafted. The proposed regulations, as they relate to the PRA, implement amendments to the military leave provisions made by the FY 2010 NDAA, which extends the availability of FMLA leave for qualifying exigencies to employee-family members of members of the Regular Armed Forces and defines the deployments covered by such leave, and extends FMLA military caregiver leave to employee-family members of certain veterans with a serious injury or illness and expands the provision of such leave to cover serious injuries or illnesses that existed prior to a covered servicemember’s active duty and were aggravated in the line of duty while on active duty. The proposed regulations also implement the AFCTCA, which establishes new eligibility requirements for airline flight crew members and flight attendants. As will be more fully explained later, many of the estimates in the analysis of the paperwork requirements derive from data developed for the Preliminary Regulatory Impact Analysis (PRIA) under Executive Orders 13563 and 12866. However, the specific needs that VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 the PRA analysis and PRIA are intended to meet often require that the data undergo a different analysis to estimate burdens imposed by the paperwork requirements from the analysis used in estimating the effect the regulations will have on the economy. In addition for certain sections, a range of values is provided in the PRIA; the PRA uses the midpoint of those ranges. Consequently, the differing treatment that must be undertaken in the PRA analysis and the PRIA of the proposed regulatory changes may result in different results. For example, the PRA analysis measures the additional burden of the information collection on those who are providing information due to the proposed regulatory changes; however, the PRIA measures the incremental changes expected to result in the broader economy due to the proposed regulatory changes. Thus, this PRA analysis will calculate the additional paperwork burden in relation to the existing FMLA information collection burden arising from this rule. Conversely, the regulatory definition for collection of information for PRA purposes specifically excludes the public disclosure of information originally supplied by the Federal government to the recipient for the purpose of disclosure to the public. 5 CFR 1320.3(c)(2). The PRIA, however, may need to consider the impact of any regulatory changes in such notifications provided by the government. Finally, the PRA definition of ‘‘burden’’ can exclude the time, effort, and financial resources necessary to comply with a collection of information that would be incurred by persons in the normal course of their activities (e.g., in compiling and maintaining business records) if the agency demonstrates that the reporting, recordkeeping, or disclosure activities needed to comply are usual and customary. 5 CFR 1320.3(b)(2). The PRIA, however, must consider the economic impact of any changes in the proposed regulation. Circumstances Necessitating Collection: The FMLA requires private sector employers of 50 or more employees and public agencies to provide up to 12 weeks of unpaid, jobprotected leave during any 12-month period to eligible employees for certain family and medical reasons (i.e., for the 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 case; to care for the employee’s spouse, son, daughter, or parent with a serious health condition; to care for the employee’s own serious health condition that makes the PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 8977 employee unable to perform the functions of his or her job; and to address qualifying exigencies related to the military call up of a spouse, son, daughter, or parent), and to provide up to 26 weeks of unpaid, job-protected leave during a single 12-month period to eligible employees to provide military caregiver leave to a covered servicemember. FMLA section 404 requires the Secretary of Labor to prescribe such regulations as necessary to enforce this Act. 29 U.S.C. 2654. The proposed regulations, which primarily pertain to the expansion of the military family leave entitlements and the expansion of FMLA protections to airline flight crews, will create additional burdens on the following information collections. A. Notice to Employee of FMLA Eligibility and Rights and Responsibilities [29 CFR 825.300(b) and (c)]. When an employee requests FMLA leave or when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying condition, the employer must notify the employee within five business days of the employee’s eligibility to take FMLA leave, or, alternatively, at least one reason why the employee is not eligible for FMLA leave (e.g., applicable number of months the employee has been employed by the employer, the number of hours of service in the 12-month period, whether the employee is employed at a worksite where 50 employees are employed at or within 75 miles of that worksite.) At the same time that the employer provides eligibility notice, the employer must provide information detailing the specific responsibilities of the employee, including any additional requirements for qualifying for FMLA leave, and explain any consequences of a failure to meet these responsibilities. If the specific information provided by the notice changes, the employer must inform the employee of the change within five business days of receipt of the employee’s first notice of the need for FMLA leave subsequent to such change. B. Designation Notice [29 CFR 825.300(d)]. The employer is responsible in all circumstances for designating leave as FMLA-qualifying, and for giving notice of the designation to the employee. When the employer has enough information to determine whether the leave is being taken for an FMLA-qualifying reason, the employer must notify the employee whether the leave will be designated and will be counted as FMLA leave. Only one notice of designation is required for each FMLA-qualifying reason per E:\FR\FM\15FEP2.SGM 15FEP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 8978 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules applicable 12-month period, regardless of whether the leave taken due to the qualifying reason will be a continuous block of leave or intermittent or reduced schedule leave. C. Medical Certification and Recertification [29 CFR 825.100(d) and 825.305 through 825.308]. An employer may require that an employee’s leave to care for the employee’s seriously ill spouse, son, daughter, or parent, or due to the employee’s own serious health condition that makes the employee unable to perform one or more essential functions of the employee’s position, be supported by a certification issued by the health care provider of the eligible employee or of the ill family member. The employer must provide notice of this requirement in writing. The employer may contact the employee’s health care provider for purpose of authentication and clarification of the medical certification (whether initial certification or recertification) after the employer has given the employee an opportunity to cure any deficiencies. In addition, an employer must advise an employee whenever it finds a certification incomplete or insufficient and state in writing what additional information is necessary to make the certification complete and sufficient. An employer, at his or her own expense and subject to certain limitations, also may require an employee to obtain a second and third medical opinion. In addition, an employer may also request recertification under certain conditions. The employer must provide the employee at least 15 calendar days to provide the initial certification and any subsequent recertification. The employer must provide seven calendar days (unless not practicable under the particular circumstances despite the employee’s good faith efforts) to cure any deficiency identified by the employer. D. Fitness-for-duty Medical Certification [29 CFR 825.100(d) and 825.312]. As a condition of restoring an employee whose FMLA leave was occasioned by the employee’s own serious health condition that made the employee unable to perform the employee’s job, an employer may have a uniformly-applied policy or practice that requires all similarly-situated employees (i.e., same occupation, same serious health condition) who take leave for such conditions to obtain and present certification from the employee’s health care provider that the employee is able to resume work. The employee has the same obligations to participate and cooperate in providing a complete and sufficient certification to the employer in the fitness-for-duty VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 certification process as in the initial certification process. An employer is permitted to require an employee to furnish a fitness-for-duty certificate every 30 days if an employee has used intermittent leave during that period and reasonable safety concerns exist concerning the employee’s ability to perform his job. E. Qualifying Exigency Leave [29 CFR 825.309]. Under the FY 2010 NDAA, qualifying exigency leave was expanded to include the members of the Regular Armed Forces along with members of the National Guard and Reserves, and to require that the deployment of both types of military members be to a foreign country. Section 825.309 establishes that an employer may require an employee to provide certification of the servicemember’s covered active duty or call to covered active duty status. Pursuant to current § 825.309(a), the employee may provide a copy of the servicemember’s active duty orders or other documentation issued by the military which indicates that the servicemember is on active duty or has been notified of an impending call or order to active duty and the dates of the servicemember’s active duty service. Current section 825.309(b) establishes that when leave is taken for one of the qualified exigencies specified in § 825.126, an employer may require the eligible employee to provide certification that sets forth certain information. Current section 825.309(c) describes the optional use form developed by the Department for employees’ use in obtaining certification that meets the FMLA’s certification requirements. Current section 825.309(d) establishes the verification process for the certifications. F. Leave to Care for a Covered Servicemember [29 CFR 825.310]. The FY 2010 NDAA expanded the definition of covered servicemember to include veterans, and permitted eligible employees to take leave to care for certain veterans with a qualifying serious injury or illness. It also permits leave to be taken for a covered servicemember whose previously existing condition was aggravated by service in the line of duty on active duty, and in the case of veterans, when the serious illness or injury manifested before or after the servicemember became a veteran. When an eligible employee requests FMLA leave to care for a covered servicemember with a serious injury or illness, the employer may require the employee to provide sufficient certification of the serious injury or illness issued by an authorized health care provider. Current section 825.310(a) permits an employer to PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 require that certain necessary information support the request for leave and defines the health care providers who are authorized to provide such certification. Current section 825.310(b) and (c) set forth the information an employer may require from the authorized health care provider and the employee, respectively, in order to support the request for leave. Current section 825.310(d) describes the optional form developed by WHD for employees’ use in obtaining certification that meets the FMLA’s certification requirements. Current section 825.310(e) describes alternatives to the optional form that employers must accept from employees obtaining certifications in certain circumstances. G. Notice to Employees of Change of 12-Month Period for Determining FMLA Entitlement [29 CFR 825.200(d)(1)]. An employer generally must choose a single uniform method from four options available under the regulations for determining the 12-month period in which the 12-week entitlement occurs for the purposes of FMLA leave. An employer wishing to change to another alternative is required to give at least 60 days notice to all employees. H. Key Employee Notification [29 CFR 825.216(b), 825.217 through 825.219 and 825.300(c)(1)(v)]. An employer that believes that it may deny reinstatement to a key employee must give written notice to the employee at the time the employee gives notice of the need for FMLA leave (or when FMLA leave commences, if earlier) that he or she qualifies as a key employee. At the same time, the employer must also fully inform the employee of the potential consequences with respect to reinstatement and maintenance of health benefits if the employer should determine that substantial and grievous economic injury to the employer’s operations would result if the employer were to reinstate the employee from FMLA leave. If the employer cannot immediately give such notice, because of the need to determine whether the employee is a key employee, the employer must give the notice as soon as practicable after receiving the employee’s notice of a need for leave (or the commencement of leave, if earlier). If an employer fails to provide such timely notice, it loses its right to deny restoration, even if substantial and grievous economic injury will result from reinstatement. As soon as an employer makes a good faith determination—based on the facts available—that substantial and grievous economic injury to its operations will result if a key employee who has given notice of the need for FMLA leave or is E:\FR\FM\15FEP2.SGM 15FEP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules using FMLA leave is reinstated, the employer must notify the employee in writing of its determination; that the employer cannot deny FMLA leave; and that the employer intends to deny restoration to employment on completion of the FMLA leave. The employer must serve this notice either in person or by certified mail. This notice must explain the basis for the employer’s finding that substantial and grievous economic injury will result, and, if leave has commenced, must provide the employee a reasonable time in which to return to work, taking into account the circumstances, such as the length of the leave and the urgency of the need for the employee to return. An employee may still request reinstatement at the end of the leave period, even if the employee did not return to work in response to the employer’s notice. The employer must then determine whether there will be substantial and grievous economic injury from reinstatement, based on the facts at the time. If the employer determines that substantial and grievous economic injury will result from reinstating the employee, the employer must notify the employee in writing (in person or by certified mail) of the denial of restoration. I. Periodic Employee Status Reports [825.300(c)(2) and 825.311]. An employer may require an employee to provide periodic reports regarding the employee’s status and intent to return to work. J. Notice to Employee of Pending Cancellation of Health Benefits [29 CFR 825.212(a)]. Unless an employer establishes a policy providing a longer grace period, an employer’s obligation to maintain health insurance coverage ceases under FMLA if an employee’s premium payment is more than 30 days late. In order to drop the coverage for an employee whose premium payment is late, the employer must provide written notice to the employee that the payment has not been received. Such notice must be mailed to the employee at least 15 days before coverage is to cease and advise the employee that coverage will be dropped on a specified date at least 15 days after the date of the letter unless the payment has been received by that date. K. Documenting Family Relationship [29 CFR 825.122(j)]. Current section 825.122(j) permits an employer to require an employee giving notice of the need for leave to provide reasonable documentation or statement of family relationship. This documentation may take the form of a child’s birth certificate, a court document, or a simple statement of the employee VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 regarding family relationship. The employee is entitled to the return of any official document submitted for this purpose. L. Recordkeeping [29 CFR 825.500]. The FMLA provides that covered employers shall make, keep, and preserve records pertaining to the FMLA in accordance with the recordkeeping requirements of Fair Labor Standards Act section 11(c), 29 U.S.C. 211(c), and regulations issued by the Secretary of Labor. 29 U.S.C. 2616. The FMLA provides that no employer or plan, fund, or program shall be required to submit books or records more than once during any 12-month period unless the Department has reasonable cause to believe a violation of the FMLA exists or is investigating a complaint. 29 U.S.C. 2616(c). Current section 825.500(c) requires employers to maintain basic payroll and identifying employee data, including name, address, and occupation; rate or basis of pay and terms of compensation; daily and weekly hours worked per pay period; additions to or deductions from wages; and total compensation paid; dates FMLA leave is taken by FMLA eligible employees (available from time records, requests for leave, etc., if so designated). Leave must be designated in records as FMLA leave; leave so designated may not include leave required under State law or an employer plan which is not also covered by FMLA; if FMLA leave is taken by eligible employees in increments or less than one full day, the hours of leave; copies of employee notices of leave furnished to the employer under FMLA, if in writing, and copies of all written notices given to employees as required under FMLA and these regulations; any documents (including written and electronic records) describing employee benefits or employer policies and practices regarding the taking of paid and unpaid leave; premium payments of employee benefits; records of any dispute between the employer and an eligible employee regarding designation of leave as FMLA leave, including any written statement from the employer or employee of the reasons for the designation and for the disagreement. Under the AFCTCA amendment, employers in the airline industry must also maintain records that specify the applicable monthly guarantee for each type of employee to whom the guarantee applies and must make these records available to the Secretary of Labor upon request. Current section 825.500(d) requires covered employers with no eligible employees to maintain certain basic payroll and identifying employee data. PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 8979 Current section 825.500(e) requires covered employers that jointly employ workers with other employers to keep all the records required by the regulations with respect to any primary employees, and to keep certain basic payroll and identifying employee data with respect to any secondary employees. Current section 825.500(f) provides that if FMLA-eligible employees are not subject to FLSA recordkeeping regulations for purposes of minimum wage or overtime compliance (i.e., not covered by, or exempt from, FLSA), an employer need not keep a record of actual hours worked (as otherwise required under FLSA, 29 CFR 516.2(a)(7)), provided that: Eligibility for FMLA leave is presumed for any employee who has been employed for at least 12 months; and with respect to employees who take FMLA leave intermittently or on a reduced leave schedule, the employer and employee agree on the employee’s normal schedule or average hours worked each week and reduce their agreement to a written record. Current section 825.500(g) requires employers to maintain records and documents relating to any medical certification, recertification, or medical history of an employee or employee’s family member, created for FMLA purposes as confidential medical records in separate files/records from the usual personnel files. Employers must also maintain such records in conformance with any applicable Americans with Disability Act (ADA) confidentiality requirements; except that: Supervisors and managers may be informed regarding necessary restrictions on the work or duties of an employee and necessary accommodations; first aid and safety personnel may be informed, when appropriate, if the employee’s physical or medical condition might require emergency treatment; and government officials investigating compliance with the FMLA, or other pertinent law, shall be provided relevant information upon request. To the extent that records and documents created for FMLA purposes contain ‘‘family medical history’’ or ‘‘genetic information’’ as defined in the Genetic Information Nondiscrimination Act of 2008 (GINA), employers must maintain such records in accordance with the confidentiality requirements of Title II of GINA. GINA permits genetic information, including family medical history, obtained by the employer in FMLA records and documents to be disclosed consistent with the requirements of the FMLA. E:\FR\FM\15FEP2.SGM 15FEP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 8980 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules The FLSA record keeping requirements, contained in 29 CFR part 516, are currently approved under Office of Management and Budget (OMB) control number 1235–0018; consequently this information does not duplicate their burden, despite the fact that for the administrative ease of the regulated community this information collection restates them. Purpose and Use: The Department created optional use forms: WHD Publication 1420, WH–380–E, WH–380– F, WH–381, WH–382, WH–384, and WH–385, and is considering the creation of a new optional use form for the certification of leave to care for a covered veteran, to assist employers and employees in meeting their FMLA third party notification obligations. WHD Publication 1420 allows employers to satisfy the general notice requirement. See § 825.300(a). Form WH–380–E allows an employee requesting FMLAleave for his or her own serious health condition to satisfy the statutory requirement to furnish, upon the employer’s request, appropriate certification to support the need for leave for the employee’s own serious health condition. See § 825.305(a). Form WH–380–F allows an employee requesting FMLA-leave for a family member’s serious health condition to satisfy the statutory requirement to furnish, upon the employer’s request, appropriate certification to support the need for leave for the family member’s serious health condition. See § 825.305(a). Form WH–381 allows an employer to satisfy the regulatory requirement to provide employees taking FMLA leave with written notice concerning eligibility status and detailing specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations. See § 825.300(b) and (c). Form WH–382 allows employers to satisfy the regulatory requirement of designating leave as FMLA-qualifying. See § 825.301(a). Form WH–384 allows an employee requesting FMLA leave based on a qualifying exigency to satisfy the statutory requirement to furnish, upon the employer’s request, appropriate certification to support leave for a qualifying exigency. See § 825.309. Form WH–385 currently allows an employee requesting FMLA leave based on an active duty covered servicemember’s serious injury or illness to satisfy the statutory requirement to furnish, upon the employer’s request, a medical certification from an authorized health care provider. See § 825.310. The VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 Department is considering the development of a separate optional form for the certification for a serious injury or illness of a covered veteran, or alternatively amending form WH–385 to cover certification of the serious injury or illness of both an active duty servicemember and a covered veteran. While use of the Department’s 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 respective rights and meet their respective obligations under the FMLA. The recordkeeping requirements are necessary in order for the Department to carry out its statutory obligation under FMLA § 106, 29 U.S.C. 2616, to investigate and ensure employer compliance. The WHD uses these records to determine employer compliance. Information Technology: The proposed regulations continue to prescribe no particular order or form of records. See § 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 basic requirement that third-party notifications be in writing, with the possible exception for the employee’s FMLA request (which depends on the requirements of the employer’s leave policies), there are no restrictions on the method of transmission. Employers and employees may meet many of their notification obligations by using DOL-prepared forms and publications available on the WHD Web site, www.dol.gov/whd. These forms are in a PDF, fillable format for downloading and printing. Employers may keep records that comply with the recordkeeping requirements covered by this information collection in any form, including electronic. Minimizing 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 FLSA. Employers do not need to duplicate the records when basic records maintained to meet FLSA requirements also document FMLA PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 compliance. With the exception of records specifically tracking FMLA leave, the additional records required by the FMLA regulations, including records that must be maintained by covered employers in the airline industry as outlined in proposed § 825.500(h), are records that employers ordinarily maintain in the usual and ordinary course of business. The regulations do impose, however, a threeyear minimum time limit that employers must maintain the records. The Department minimizes the FMLA information collection 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 any burden by developing prototype notices for the third-party disclosures covered by this information collection. Agency Need: The Department is assigned a statutory responsibility to ensure employer compliance with the FMLA. The Department uses records covered by the FMLA information collection to determine compliance, as required of the agency by FMLA § 107(b)(1). 29 U.S.C. 2617(b)(1). Without the third-party notifications required by the law and/or regulations, 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. The discussion above outlines the circumstances necessitating the information collection and provides the details of when employees and employers must provide certain notices. Public Comments: The Department seeks public comments regarding the burdens imposed by the information collection 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 E:\FR\FM\15FEP2.SGM 15FEP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules 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 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 Control Number 1235– 0003. See 44 U.S.C. 3507(d); 5 CFR 1320.11. While much of the information provided to the OMB in support of the information collection request appears in this preamble, 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 FMLA information collection requirements may be addressed to the OMB. OMB encourages commenters to submit comments by emailing them to OIRA_submissions@omb.eop.gov or faxing them to (202) 395–7285. While commenters are encouraged to email or fax their comments to OMB to ensure timely receipt of comments, commenters may mail OMB their comments by using the following mailing address: Office of Information and Regulatory Affairs, Attention: OMB Desk Officer for the Wage and Hour Division, Office of Management and Budget, 725 17th Street NW., Room 10235, Washington, DC 20503. Confidentiality: Much of the information covered by this information collection consists of third-party disclosures. Employers generally must maintain records and documents relating to any medical certification, VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 recertification, or medical history of an employee or employee’s family members as confidential medical records in separate files/records from usual personnel files. Employers must also generally maintain such records in conformance with any applicable ADA and/or GINA confidentiality requirements. 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. Hours Burden Estimates: The Department bases the following burden estimates on the estimates the PRIA presented elsewhere in this document, except as otherwise noted. The Department estimates that there are 381,000 covered employers with 1.2 million establishments. There are 72.9 million employees working for covered employers who are eligible for leave. In 2005, 7 million employees took leave. 73 FR 7938. A. Employee Notice of Need for FMLA Leave. While employees normally will provide general information regarding their absences, the regulations may impose requirements for workers to provide their employers with more detailed information than might otherwise be the case. The Department estimates that providing this additional information will take approximately two minutes per employee notice of the need to take FMLA leave. The Department estimates that there are 193,000 employees who are newly eligible to take leave for a qualifying exigency under the FY 2010 NDAA. Based on leave usage patterns, 30,900 of these employees will take leave for a qualifying exigency (16 percent of 193,000 employees). Based on the leave patterns estimated by the Department discussed in the PRIA, the Department estimates that there will be 679,800 employee requests for qualifying exigency leave. The Department also estimates that there are 59,700 employees who are newly eligible to take leave to care for a covered veteran under the FY 2010 NDAA. Based on leave usage patterns, 15,500 of these employees will take leave to care for a covered veteran (26 percent of 117,790 employees). Based on the leave patterns estimated by the Department in the PRIA analysis, the Department estimates that there will be 790,500 employee requests for leave to care for a covered veteran. PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 8981 The Department also estimates that there are 129,760 flight crew members eligible to take FMLA leave. However, some of these employees may already be entitled to leave similar to FMLA leave under collective bargaining agreements. Consequently, the Department anticipates that there are 90,560 airline flight crew employees who may be newly entitled to FMLA leave pursuant to AFCTCA. The Department estimates that 5,951 of these employees will take FMLA leave (5 percent of eligible pilots and 7.9 percent of eligible flight attendants). The PRIA analysis provides an explanation for how these numbers were determined. The Department also anticipates that each of these employees will provide his or her employer with 1.5 notices of need for FMLA leave, totaling 8,930 employee requests for FMLA leave. New burden: 1,479,230 responses (employee notices of leave) × 2 minutes/ 60 minutes per hour = 49,308 hours. Existing employee notification requirements unaffected by this NPRM already impose an estimated burden of 13,419,050 responses and 447,302 hours. Total burden for this requirement is estimated to be 14,898,280 responses and 496,610 hours. B. Notice to Employee of FMLA Eligibility and Rights and Responsibilities. The Department estimates that each written notice to an employee of FMLA eligibility and notice of rights and responsibilities takes approximately ten minutes. The number of eligibility and rights and responsibilities notices that employers must provide is equal to the number of leave takers.3 The Department estimates 3 Based on the leave patterns for qualifying exigency and military caregiver leave, the Department is assuming that all subsequent leave requests will be for the same servicemember for whom the leave was originally requested. The employee is required to notify the employer in each instance of the need for leave. But the employer is not required to provide the employee with a notice of eligibility or rights and responsibilities notice each time the employee requests the leave unless the employee’s eligibility status changes. For qualifying exigency leave, 30,900 leave takers will provide 679,800 employer notices of their need for leave. For military caregiver leave, 15,500 leave takers will provide 790,500 employer notices of their need for leave. However, employers will only have to issue 46,400 eligibility notices and rights and responsibilities notices. However, for the eligible employees who are airline flight crew members, the Department is assuming that each of the employees’ 1.5 employer notices of the need for leave are for different FMLAqualifying reasons, and therefore employers will need to provide a notice of eligibility and a notice of rights and responsibilities for each request for leave. 5,951 leave takers will issue 8,930 employer notices for leave (5,951 × 1.5 leaves = 8,930 notices). Employers will issue 8,930 notices of eligibility and notices or rights and responsibilities. E:\FR\FM\15FEP2.SGM 15FEP2 8982 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS2 that employers will provide 55,330 FMLA eligibility and rights and responsibilities notices to employees under the new military and airline amendments to the FMLA. Employers may use optional Form WH–381 to satisfy this requirement. New burden: 55,330 total responses (notices of eligibility and rights and responsibilities) × 10 minutes/60 minutes per hour = 9,222 hours. Existing employee eligibility and rights and responses notification requirements unaffected by this NPRM already impose an estimated burden of 21,764,900 responses and 9,491,476 hours. Total burden for this requirement is estimated to be 21,820,230 responses and 9,500,698 hours. C. Employee Certifications 1. Medical Certification and Recertification. The Department estimates that 90 percent of airline flight crew employees who take FMLA leave will do so for a serious health condition of their own or that of a family member. The Department also assumes, due to the safety concerns of the airline industry, that employers will require that all of these employees provide medical certification to their employer. As it did in the 2008 paperwork analysis, and with no present reason to change its estimate, the Department further estimates that second or third opinions and/or recertifications add 15 percent to the total number of certifications, and that employees spend 20 minutes in obtaining the certifications.4 Employers may have employees use optional Forms WH– 380–E and WH–380–F to satisfy this statutory requirement. 5,951 airline flight crew employees taking leave × 90% rate for a serious health condition × 90% of employees asked to provide initial medical documentation = 4,820 employees providing initial medical certification. New burden: 4,820 × 1.15 subsequent medical certifications = 5,543 total employee medical certifications. 5,543 × 20 minutes/60 minutes per hour = 1,848 hours. The Department does not associate a paperwork burden with the portion of this information collection that employers complete since—even absent the FMLA—similar information would customarily appear in their internal 4 The estimated time of 20 minutes reflects the Department’s expectation that it will take 20 minutes to complete optional form WH–380. The Department assumes that while visiting the health care provider for a previously scheduled appointment, the individual will have the certification completed by the doctor’s office. VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 instructions requesting a medical certification or recertification. The Department accounts for health care provider burdens to complete these certifications as a ‘‘maintenance and operation’’ cost burden, which is discussed later. 2. Fitness-for-Duty Medical Certification. The Department assumes that the Federal Aviation Authority (FAA) requires airline flight crew employees, specifically pilots and flight attendants, to receive regular medical evaluations as a condition of their continued employment. Therefore the Department estimates that 50 percent of airline pilots and 10 percent of flight attendants will be required to submit fitness-for-duty medical certifications pursuant to the FMLA regulations. The Department estimates that completing a fitness-for-duty certification will take an employee ten minutes. New burden: 25,135 responses (employee certifications) × 10 minutes/ 60 minutes per hour = 4,189 hours. 3. Certification of Qualifying Exigency for Military Family Leave. The Department estimates that 30,900 employee-family members will be eligible to take FMLA leave to address qualifying exigencies due to the expansion of qualifying exigency leave under the FY 2010 NDAA to certain family members of members of the Regular Armed Forces. The Department estimates that employers will request certification from 30,900 employees for qualifying exigency leave. Employers may use optional Form WH–384 to satisfy this requirement. The Department further estimates that it will take approximately 20 minutes for a Human Resources staff member to request, review, and verify the employee’s certification papers. New burden: 30,900 total responses (employee qualifying exigency leave certifications) × 20 minutes/60 minutes per hour = 10,300 hours. 4. Certification for Leave Taken to Care for a Covered Servicemember— Current Servicemember. Pursuant to the FY 2010 NDAA, an eligible employeefamily member may take FMLA leave to care for a current servicemember who has a serious injury or illness that existed before the member’s active duty and was aggravated by service in the line of duty while on active duty. At this time the Department does not have sufficient information to develop an estimate of employees who will qualify for military caregiver leave for a covered servicemember with a serious injury or illness that existed prior to the servicemember’s active duty and was aggravated in the line of duty on active duty. Accordingly, the Department will PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 not revise the current burden analysis for certification of leave to care for a current servicemember at this time. The Department will review the comments that it receives in response to the NPRM and based on the received comments may revise the burden analysis at the final rule stage. 5. Certification for Leave Taken to Care for a Covered Servicemember— Covered Veteran. The FY 2010 NDAA provided FMLA leave for eligible employees to care for a covered veteran with a serious injury or illness that was incurred in the line of duty on active duty (or existed before the member’s active duty and was aggravated in the line of duty on active duty) and manifested itself before or after the member became a veteran. The Department estimates that 15,500 employees will be eligible to take leave to care for a covered veteran. The Department expects that employers will request certification forms for this leave. The Department estimates that it will take a Human Resources specialist 30 minutes to request, review, and verify the employee’s certification papers. New burden: 15,500 responses (certification papers) × 30 minutes/60 minutes per hour = 7,750 hours. All new certification and recertification requirements as a result of this NPRM impose a burden of 77,078 responses and 24,087 hours. All existing certification and recertification requirements unaffected by this NPRM already impose an estimated burden of 12,080,153 responses and 4,009,851 hours. Total burden for this requirement is estimated to be 12,157,231 responses and 4,033,938 hours. D. Notice to Employees of FMLA Designation. The Department estimates that each written FMLA designation notice takes approximately 10 minutes to complete. New burden: 55,330 total responses (designation notices) × 10 minutes/60 minutes per hour = 9,222 hours. Existing designation notification requirements unaffected by this NPRM already impose an estimated burden of 17,383,325 responses and 4,693,574 hours. Total burden for this requirement is estimated to be 147,438,655 responses and 4,702,796 hours. E. Notice to Employees of Change of 12-month period of determining FMLA eligibility. The Department assumes that 10 percent of covered airline employers will choose to change their 12-month period for determining eligibility since the AFCTCA. The Department also assumes these employers will employ 10 percent of newly added eligible E:\FR\FM\15FEP2.SGM 15FEP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules employees in the airline industry. The Department continues to estimate from the 2008 analysis that it will take an employer 10 minutes to make this employee notification, and this time was amortized to 1.79336117 seconds per individual response. 90,560 newly added employees in the airline industry × 10% for employers who change the period = 9,056 responses. 9,056 responses × 1.79336117 = 5 hours. Existing similar notification requirements unaffected by this NPRM already impose a burden of 9,580,000 responses and 4,772 hours. Total burden for this requirement is estimated to be 9,589,056 responses and 4,777 hours. F. Key Employee Notification. The Department assumes that a very small percentage of airline flight crew employees will be determined key employees. As such, the Department does associate a burden hour estimate with this provision. Existing notification requirements unaffected by this NPRM already impose a burden of 42,787 responses and 3,566 hours. Total burden for this requirement is estimated to be 42,787 responses and 3,566 hours. G. Periodic employee status reports. The Department estimated in the 2008 paperwork analysis that employers require periodic status reports from 25 percent of FMLA-leave users, and since it has not received any evidence to believe otherwise, it continues to estimate 25 percent today. The Department also estimates that a typical employee would normally respond to an employer’s request for a status report; however to account for any burden the regulations may impose, the Department estimates that 10 percent of employees will respond to the request only because of the regulatory requirement, imposing a burden of two minutes per response. The Department also estimates that each such employee provides two periodic status reports. New burden: 52,351 leave takers × 25% rate of employer requests × 10% of employees who comply due to the regulations = 1,309 employee responses. 1,309 employee responses × 2 responses = 2,618 total responses. 2,618 responses × 2 minutes/60 minutes = 87 hours. Existing status report notification requirements unaffected by this NPRM already impose an estimated burden of 369,704 responses and 12,323 hours. Total burden for this requirement is estimated to be 372,322 responses and 12,410 hours. VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 H. Documenting Family Relationships. As it did in the 2008 analysis, the Department estimates that 50 percent of traditional FMLA leave takers do so for ‘‘family’’ related reasons, such as caring for a newborn or recently adopted child or a qualifying family member with a serious health condition. 73 FR 7939. As such, the Department assumes that 50 percent of airline flight crewmembers who take leave will take it for family reasons. (2,976 of 5,951 leave takers). Under the military amendments all employees who take leave will be doing so for a family-related reason. (46,400 leave takers). As it did in the 2008 analysis, the Department estimates that employers may require additional documentation to support a family relationship in five percent of these cases, and the additional documentation will require 5 minutes. New burden: 49,376 (employees taking leave for family-related reasons) × 5% (additional documentation) = 2,469 employees required to document family relationships. 2,469 employees × 5 minutes/60 minutes per hour = 206 hours. Existing family documentation requirements unaffected by this NPRM already impose an estimated burden of 183,987 responses and 15,332 hours. Total burden for this requirement is estimated to be 186,456 responses and 15,538 hours. M. Notice to employee of pending cancellation of health benefits. Pursuant to the AFCTCA, airline flight crew employees are newly eligible to take FMLA-qualifying leave. However, the Department believes employer policies and agreements that airline flight crew employees may be a party to preclude employers from canceling employees’ health benefits. Therefore, at this time the Department will not revise the current burden analysis for employee notice of pending cancellation of health benefits. The Department will review the comments that it receives in response to the NPRM, and based on the received comments may revise the burden analysis at the final rule stage. Existing notification requirements unaffected by this NPRM already impose a burden of 142,619 responses and 11,885 hours. N. General Recordkeeping. The Department believes that the FMLA does not impose any additional burden on employers in the airline industry, as the records required to be maintained by the FMLA should already be maintained by the employers as part of their usual and customary business practices. Therefore, the Department is not PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 8983 proposing a new burden hour estimate for this provision. The existing estimated burden for these elements is 13,419,050 responses and 279,564 hours. Total burden for this requirement is estimated to be 13,419,050 responses and 279,564 hours. Other respondent cost burdens (maintenance and operation): Airline flight crew employees seeking FMLAleave for their own serious health condition or the serious health condition of a family member, must obtain, upon their employers’ request, a certification of their own or family member’s serious health condition. Similarly, employees seeking FMLA leave for military caregiver leave must obtain, upon their employer’s request, a certification of the covered servicemember’s serious injury or illness. Often the health care provider’s office staff completes the form for the provider’s signature. In other cases, the health care provider personally completes it. In the 2008 analysis, the Department assumed that while most health care providers do not charge for completing these certifications, some do. The Department has no reason to believe that this assumption has changed since its last analysis. The Department estimates that it will take approximately 20 minutes to complete a certification for a serious health condition, and 10 minutes to complete a fitness for duty certification. The time would equal the employee’s time in obtaining the certification. The Department used the median hourly wage for a physician’s assistant of $41.54 plus 40 percent in fringe benefits to compute cost of $19.39 for the certification of a serious health condition ($58.17 × 20 minutes/60 minutes per hour), and $9.69 for the fitness-for-duty certification. See BLS Occupational Employment Statistics, Occupational Employment and Wages, May 2010, http://www.bls.gov/oes/ current/oes291071.htm. The Department estimates that it will take approximately 20 minutes to complete the certification for a covered veteran. Thus, the time would equal the employee’s time in obtaining the certification. The Department used the median hourly wage for a physician’s assistant of $41.54 plus 40 percent in fringe benefits to compute cost of $19.39 for the certification to care for covered veteran ($58.17 × 20 minutes/60 minutes per hour). See BLS Occupational Employment Statistics, Occupational Employment and Wages, May 2010, http://www.bls.gov/oes/ current/oes291071.htm. E:\FR\FM\15FEP2.SGM 15FEP2 8984 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules New burden: 15,500 medical certifications for covered veterans × $19.39 cost per certification = $300,545. The maintenance and operations cost estimate for the existing FMLA information collections is $162,821,810. Grand total of maintenance and operations cost burden for respondents = $163,122,355. The burden imposed by this information collection, as proposed to be revised, is summarized as follows: 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: 7,301,451 (52,351 added by this NPRM). Total Estimated Number of Responses: 91,066,686 (1,681,111 added by this NPRM). Total Estimated Annual Burden Hours: 19,061,782 (92,137 added by this NPRM). Total Estimated Annual Other Costs Burdens: $163,122,355 ($300,545 added by this NPRM). tkelley on DSK3SPTVN1PROD with PROPOSALS2 V. 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. This rule has been designated a ‘‘significant regulatory action’’ although not economically significant, under section 3(f) of Executive Order 12866. However, in keeping with the spirit of Executive Order 12866, the Department had the rule reviewed by OMB. The Family and Medical Leave Act (FMLA or Act) is administered by the U.S. Department of Labor, Wage and Hour Division (WHD). The FMLA provides a means for employees to balance their work and family responsibilities by taking unpaid leave for certain reasons. The Act is intended to promote the stability and economic security of families as well as the nation’s interest in preserving the integrity of families. VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 The FMLA applies to any employer in the private sector engaged in commerce or in an industry or activity affecting commerce who employed 50 or more employees each working day during at least 20 weeks in the current or preceding calendar year; all public agencies and local education agencies; and most Federal employees.5 To be eligible for leave, an individual must: D Be employed by a covered employer at a worksite that employs at least 50 employees within 75 miles; D Have worked at least 12 months for the employer (not necessarily consecutively); and D Have at least 1,250 hours of service during 12 months preceding the beginning of the FMLA leave (as discussed herein, special hours of service rules apply to airline flight crew employees). The FMLA provides for job-protected, unpaid leave, which may be continuous or intermittent, and allows for the substitution of paid leave. Employees are entitled to: ■ A combined total of 12 workweeks of leave in a 12-month period for: Æ Birth and care of the employee’s child (within one year); Æ Placement with employee of a child for adoption or foster care (within one year); Æ Care of a spouse, child, or parent with serious health condition; Æ The employee’s own serious health condition; and Æ Qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member and is on covered active duty or has been notified of an impending call or order to covered active duty. Employees are also entitled to 26 workweeks of leave in a single 12month period to care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the servicemember. A. Need for Regulation The proposed changes to the FMLA regulations are primarily to implement statutory amendments to the FMLA’s military family leave provisions and separate statutory changes affecting the eligibility requirements for airline flight crewmembers and flight attendants 5 Most Federal employees are covered under Title II of the FMLA (incorporated in Title V, Chapter 63, Subchapter 5 of the U.S. Code), which is administered by the Office of Personnel Management under regulations set forth at 5 CFR Part 630, Subpart L. PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 (collectively referred to as airline flight crew employees). Additionally, the military statutory amendments are designed to make it easier for workers with family in military service to balance their work and family lives during particularly demanding times without the fear of losing their jobs. 73 FR 68070. The amendments relating to the airline flight crew employees established a special hours of service eligibility requirement in order to address this industry’s unique scheduling practices and expand access to FMLA-protected leave for flight crew employees. 1. National Defense Authorization Act for Fiscal Year 2010 Amendments On October 28, 2009, the President signed into law the 2010 National Defense Authorization Act (FY 2010 NDAA), Public Law 111–84. Section 565(a) of the FY 2010 NDAA amends the FMLA. These amendments expand the military family leave provisions added to the FMLA in 2008, which provide qualifying exigency and military caregiver leave for employees with family members who are covered military members. The FY 2010 NDAA amendments to the FMLA provide that an eligible employee may take FMLA leave for any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is on (or has been notified of an impending call to) ‘‘covered active duty’’ in the Armed Forces. ‘‘Covered Active Duty’’ for members of a regular component of the Armed Forces means duty during deployment of the member with the Armed Forces to a foreign country. For members of the U.S. National Guard and Reserves it means duty during deployment of the member with the Armed Forces to a foreign country under a call or order to active duty in a contingency operation as defined in section 101(a)(13)(B) of title 10, United States Code. Prior to the FY 2010 NDAA amendments, (1) qualifying exigency leave did not apply to employees with family members serving in a regular component of the Armed Forces and (2) qualifying exigency leave for family members of members of the National Guard and Reserves was not limited to deployment to a foreign country in support a contingency operation. The FY 2010 NDAA also expands the military caregiver leave provisions of the FMLA. Military caregiver leave entitles an eligible employee who is the spouse, son, daughter, parent, or next of kin of a ‘‘covered servicemember’’ to take up to 26 workweeks of FMLA leave in a ‘‘single 12- month period’’ to care E:\FR\FM\15FEP2.SGM 15FEP2 8985 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules for a covered servicemember with a serious injury or illness. Under the FY 2010 NDAA amendments, the definition of ‘‘covered servicemember’’ is expanded to include a veteran ‘‘who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness’’ if the veteran was a member of the Armed Forces ‘‘at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy.’’ Prior to the FY 2010 NDAA amendments, military caregiver leave was limited to care for current members of the U.S. Armed Forces, including members of the Regular Armed Forces and members of the National Guard and Reserves. In addition, the FY 2010 NDAA amends the FMLA’s definition of a ‘‘serious injury or illness’’ for a current member of the U.S. Armed Forces, including National Guard or Reserves, to include not only a serious injury or illness that was incurred by the member in the line of duty on active duty but also one that ‘‘existed before the beginning of the member’s active duty and was aggravated by service in line of duty on active duty in the Armed Forces’’ that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating. For covered veterans, the term is defined as ‘‘a qualifying (as defined by the Secretary of Labor) injury or illness that was incurred by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that manifested itself before or after the member became a veteran.’’ 2. Airline Flight Crew Technical Amendments On December 21, 2009, the President signed into law the Airline Flight Crew Technical Corrections Act, Public Law 111–119. This amendment to the FMLA establishes a special hours of service eligibility requirement for airline flight crew employees. This amendment also permits the Secretary of Labor to provide by regulation a method of calculating FMLA leave for airline flight crew employees. Airline flight crew employees continue to be subject to the FMLA’s other eligibility requirements. The amendment provides that an airline flight attendant or flight crew member meets the hours of service requirement if, during the previous 12month period, he or she has worked or been paid for: ■ Not less than 60 percent of the applicable total monthly guarantee (or its equivalent), and ■ Not less than 504 hours, not including personal commute time, or time spent on vacation, medical, or sick leave. Prior to this amendment, many flight crew employees were not eligible for FMLA leave because the nature of the airline industry, including regulatory limits on the flying time, prevented them from meeting the required 1,250 hours of service requirement. Airline employees other than flight crew employees continue to be subject to the 1,250 hours of service eligibility requirement with hours of service determined according to principles established under the FLSA for compensable work time (i.e., ‘‘hours worked’’). Summary of Impacts 6 The Department projects that the average annualized cost of the rule will be somewhat more than $61 million per year over 10 years. The rule is expected to cost $72.3 million in the first year, and $59.8 million per year in subsequent years. The amendment to extend FMLA provisions to flight crew employees accounts for 0.5 percent of first year costs and 0.7 percent in subsequent years, while military exigency and caregiver leave account for 81.4 percent of first year costs and 99.4 percent of costs in subsequent years. Regulatory familiarization costs account for 17.4 percent of first year costs. By provision, the costs related to the provision of health benefits account for the largest share of costs, about 44.5 percent of costs in the first year of the rule, and 53.9 percent of costs each in each of the following years. TABLE 1–1—SUMMARY OF IMPACT OF PROPOSED CHANGES TO FMLA Annualized ($1000) Year 1 ($1000) Component Total ................................................................................................................. By Amendment * * * Any FMLA revision ................................................................................... Flight Crew Technical Amendment .......................................................... NDAA 2010 ............................................................................................... Qualifying Exigency ........................................................................... Expanded R&R Leave ....................................................................... Military Caregiver ............................................................................... By Requirement * * * Regulatory Familiarization ........................................................................ Employer Notices ..................................................................................... Certifications ............................................................................................. Health Benefits ......................................................................................... Real discount rate 3% Real discount rate 7% $72,398 $59,791 $61,226 $61,469 12,607 372 59,419 23,052 2,781 33,587 0 372 59,419 23,052 2,781 33,587 1,435 372 59,419 23,052 2,781 33,587 1,678 372 59,419 23,052 2,781 33,587 12,607 26,851 722 32,218 0 26,851 722 32,218 1,435 26,851 722 32,218 1,678 26,851 722 32,218 The first step in the analysis is to estimate the number of firms, establishments and employees in the public and private sectors that will be impacted by the proposed changes. The Department estimates that there are a total of 7.9 million firms and government agencies with 10.6 million establishments in the U.S.7 These entities employ 133 million workers with an annual payroll of $5.9 trillion.8 6 On certain provisions, the Department provides a range of estimates. Where the ranges provide a summary of information, the midpoint of the range is represented. 7 Number of firms and establishments includes private industry, farms, and governments. 8 The Department’s analysis is based on: USDA 2007 Census of Agriculture, available at: http:// www.agcensus.usda.gov/Publications/2007/index. asp; 2007 Annual Survey of State and Local Government Employment and Payroll, available at: http://www.census.gov/govs/estimate/; and B. Proposed Impacts tkelley on DSK3SPTVN1PROD with PROPOSALS2 Year 2 ($1000) 1. Industry Profile Continued VerDate Mar<15>2010 19:56 Feb 14, 2012 Jkt 226001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 E:\FR\FM\15FEP2.SGM 15FEP2 8986 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules Estimated annual revenues equal $33.2 trillion and estimated net income is $1.1 trillion.9 After identifying and excluding from the analysis those businesses that are not covered by the FMLA, the Department estimates that there are 381,000 covered firms and government agencies with 1.2 million establishments. These firms employ 91.1 million workers that will potentially be impacted by the proposed rule changes. These employers have an annual payroll of $5.0 trillion, estimated annual revenues of $23.7 trillion, and estimated net income of $1.03 trillion. Table 2–1 presents the estimated number of establishments, firms, employment, annual wages, revenue, and net income for all employers. The following subsection describes in detail the methods and data sources used to develop the industry profile. tkelley on DSK3SPTVN1PROD with PROPOSALS2 2. Methods and Data Sources In order to determine the impact of this proposed rule, it is important to understand the analysis underlying the 2008 final rule. Therefore, this section describes the data sources and methods used to calculate the 2008 industry profile and identify employers that will be impacted by the proposed rule. The foundation for the profile is a special tabulation of data produced by the Bureau of Labor Statistics (BLS) Quarterly Census of Employment and Wages (QCEW) Program. The tabulation describes the distribution of establishments and employment by major industry division (2-digit NAICS level) across nine employment size categories. As explained more fully below, the analysis is based on establishment-level data because employer coverage and employee eligibility for the proposed rule is determined, in part, by establishment size. The number of establishments and employment for each 2-digit industry, as defined by the North American Industry Classification System (NAICS), by employment size class, were obtained Unpublished Special Tabulations produced by the Bureau of Labor Statistics, Quarterly Census of Employment and Wages (QCEW) Program. For more information on the QCEW program, please see the Web site: http://www.bls.gov/cew/. 9 Estimated net income does not include net income for farms. The Department’s analysis is based on: U.S. Census Bureau, Statistics of U.S. Businesses, ‘‘Number of Firms, Number of Establishments, Employment, Annual Payroll, and Receipts by Employment Size of the Enterprise for the United States, All Industries—2002’’; Unpublished Special Tabulations, BLS; and, IRS, 2007 Statistics of Income, Returns of Active Corporations, Table5—Selected Balance Sheet, Income Statement, and Tax Items, by sector, by Size of Business Receipts. VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 directly from BLS Quarterly Census of Employment and Wages Business Employment Dynamics (QCEW).10 The number of farms was obtained from the U.S. Department of Agriculture 2007 Census of Agriculture. The number of governments and number of government workers was obtained from the Census of Governments. The number of firms was determined by distributing the BLS QCEW total number of firms at the 2-digit industry level to each size class using the proportion of firms in each size class calculated from the Statistics of U.S. Businesses 2006. The Department used a similar approach to determine the annual payroll within each industry. The total annual payroll at the 2-digit industry level was distributed to each of the employment size classes using the proportion of payroll in each size class calculated from the Statistics of U.S. Businesses 2006.11 Annual wages for government entities were obtained from the U.S. Census of Governments.12 In order to determine estimated 2008 revenues for each industry and employment size class, the Department calculated the receipts per employee in each size class from the 2007 Statistics of U.S. Business by aggregating the 2007 size classes to match BLS size classes, then dividing total receipts by the number of employees in each size class. Then, the Department estimated the BLS worker output index and producer price index for each two-digit sector as a weighted average of industries composing that sector. For sectors where no indices were available, the Department used the median value from those sectors with indices. Finally, to obtain an estimate of 2008 revenues, the Department multiplied receipts per employee in each size class by the 2008 number of employees in each size class, the worker output index and the producer price index. Government revenues were directly obtained from the 2007 Census of Government Finance.13 To determine estimated 2008 net income for each industry and employment class size, the Department calculated the average revenues per firm in each size class and calculated the Special Tabulations, BLS. of U.S. Businesses, 2006 features a range of size classes; in some cases these size classes were aggregated to match the size classes available in the BLS Quarterly Census of Employment and Wages Business Employment Dynamics data set. 12 2007 Annual Survey of State and Local Government Employment and Payroll, available at: http://www.census.gov/govs/estimate/. 13 U.S. Census Bureau 2007 Census of Government Finance, available at: http://www. census.gov/govs/estimate/index.html#state_local. ratio of net income to total receipts using the 2007 IRS Statistics of Income.14 The estimated average revenue per firm in each size class was used to select an appropriate ‘‘size of business receipts’’ category from Statistics of Income for a size class in a particular industry and to generate the ratio of net income to total receipts for that category. The 2007 ratio of net income to total receipts was multiplied by the estimated 2008 revenues in each size class to calculate the estimated 2008 net income. Government net income was estimated by subtracting expenditures from revenues.15 3. Covered Employers The FMLA applies to any employer in the private sector engaged in commerce or in an industry affecting commerce who employed 50 or more employees each working day during at least 20 weeks in the current or preceding calendar year; all public agencies and local education agencies; and most Federal employees. First, the Department dropped from the profile all establishments in employment size classes of less than 50 employees (i.e., 0–49 employees) except for those in elementary and secondary education. For the purpose of this analysis, all Federal government employers are assumed to be covered by FMLA regulations as administered by the Office of Personnel Management and, therefore, not subject to these revisions; State and local government employees, as well as U.S. Postal Service employees, are covered by this proposed rulemaking and are included in the profile of covered workers. Additionally, based on estimates from the 2007 Census of Agriculture, it is likely that very few farms employ more than 50 employees, and among those that do, very few of their employees are eligible for FMLA due to the seasonality of the work. As a result, this analysis assumes that no farm employers are covered by FMLA.16 See Table 2–2 for a summary of covered employers. Additionally, the Department used Statistics of U.S. Business, 2006 at the 6-digit NAICS level to identify the proportion of employers in NAICS 61 ‘‘Education Services’’ who are 10 Unpublished 11 Statistics PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 14 Internal Revenue Service, 2007 Statistics of Income, Returns of Active Corporations, Table 5— Selected Balance Sheet, Income Statement, and Tax Items, by Sector, by Size of Business Receipts. 15 2007 Census of Government Finance. 16 Based on the 2007 Census of Agriculture, about 2% of all farms have more than 10 hired employees, suggesting that the number of covered farms is likely very close to zero. Due to the seasonal nature of farm employment, it is similarly likely that few employees would be eligible for FMLA leave even if the farm were covered. E:\FR\FM\15FEP2.SGM 15FEP2 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules categorized as ‘‘Elementary and Secondary Education.’’ This proportion was used to calculate the number of employers in each size class in NAICS 61 that are considered local education agencies, and, therefore, covered by FMLA regardless of size. These employers were subtracted from the broader category of education services, and treated separately by the analysis; the remaining employers in education services with fewer than 50 employees were dropped from the profile. Next, the Department calculated an appropriate adjustment factor to account for establishments with fewer than 50 employees at a worksite owned by a firm with more than 50 employees within 75 miles. It is necessary to add an estimated number of these employees back in to the industry profile to avoid underestimating the number of covered employers and eligible employees affected by the proposed rule. The Department calculated this adjustment following the approach described in the 2007 ‘‘Preliminary Analysis of the Impacts of Prospective Revision to the Regulation Implementing the FMLA of 1993 at 29 CFR 825’’ (hereafter, ‘‘the 2007 PRIA’’).17 In summary, the Department estimated an upper and lower bound on the number of employees who may be employed at worksites with less than 50 employees owned by firms with greater than 50 employees within 75 miles, and calculated the difference between these two estimates. In the absence of reliable data on the geographic proximity of establishments owned by the same firm, and employment at those establishments, we assumed 50 percent of workers at these establishments are employed at covered worksites. The lower bound is estimated at the 2-digit industry level as the employment in establishments with more than 50 8987 employees according to the U.S. County Business Patterns of 2007.18 The upper bound is estimated as employment in firms with greater than 50 employees according to the Statistics of U.S. Businesses 2007 Small employment size classes.19 Next, the Department calculated fifty percent of the difference between the upper and lower bound to estimate the number of workers at covered worksites of less than 50 employees in 2007. This estimate was then calculated as a percent of total employment in each industry, and that percent multiplied by the total employment in each industry in 2008 to estimate the number of workers at covered worksites of less than 50 employees in 2008. The Department did not attempt to distribute these workers to size classes. This approach was repeated to estimate the number of establishments and annual payroll for this category. TABLE 2–1—2008 INDUSTRY PROFILE: ALL PRIVATE AND PUBLIC SECTOR EMPLOYERS Number of establishments NAICS Industry 11 ........... Agriculture, Forestry, Fishing & Hunting. Farms ...................... Mining ...................... Utilities ..................... Construction ............ Manufacturing ......... Wholesale Trade ..... Retail Trade ............ Transportation and Warehousing *. Information .............. Finance and Insurance. Real Estate and Rental and Leasing. Professional, Scientific & Technical Serv. Management of Companies & Enterprises. Admin, Support, Waste Mgmt & Remed Serv. Education Services—Total. Education Services—all others. Education Services—Elementary and Secondary. Health Care and Social Assistance. Arts, Entertainment, and Recreation. 11f .......... 21 ........... 22 ........... 23 ........... 31–33 ..... 42 ........... 44–45 ..... 48–49 ..... 51 ........... 52 ........... 53 ........... 54 ........... 55 ........... 56 ........... 61 ........... 61a ......... tkelley on DSK3SPTVN1PROD with PROPOSALS2 61e ......... 62 ........... 71 ........... 17:24 Feb 14, 2012 Jkt 226001 Number of firms Estimated revenues ($1000) Annual payroll ($1000) Estimated net income ($1000) 93,063 1,083,602 86,256 30,293,755 191,671,485 2,407,103 2,204,792 29,816 16,000 788,982 346,637 587,802 587,802 207,554 843,000 728,810 560,628 6,691,659 12,991,886 5,900,701 5,900,701 4,981,034 2,204,792 21,206 7,296 686,282 284,894 341,387 341,387 154,026 18,349 61,569,636 46,832,814 348,060,594 727,472,090 366,499,181 366,499,181 182,514,664 283,520,000 265,308,320 588,750,468 1,764,016,511 5,042,240,515 5,217,289,386 5,217,289,386 920,250,059 * 23,777,149 28,522,162 13,137,722 220,025,292 34,862,575 34,862,575 14,548,904 136,001 458,828 2,970,258 5,823,542 72,676 233,643 210,177,173 492,482,993 829,642,598 2,590,473,795 46,672,698 114,918,333 342,250 2,085,053 243,368 90,735,012 439,247,207 14,606,997 933,257 7,875,748 695,416 578,284,495 1,476,151,016 18,463,759 48,434 1,895,781 35,257 178,611,324 466,204,666 56,954,063 432,089 7,705,263 315,462 254,989,288 649,497,228 4,026,201 84,911 2,501,830 67,800 96,989,952 268,567,412 4,714,997 64,952 1,623,889 51,100 72,612,918 185,424,684 3,752,850 19,959 877,941 18,639 24,377,033 83,142,727 958,024 748,151 15,910,960 594,285 655,441,919 1,749,782,977 14,443,129 116,178 1,816,000 98,613 62,461,364 193,817,674 2,970,331 17 CONSAD Research Corporation, December 7, 2007. Pages 6–8. VerDate Mar<15>2010 Employment 18 U.S. County Business Patterns of 2007, available at URL: http://www.census.gov/econ/cbp/ download/07_data/index.htm. PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 19 Statistics of U.S. Businesses, available at URL: http://www.census.gov/econ/susb/. E:\FR\FM\15FEP2.SGM 15FEP2 8988 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules TABLE 2–1—2008 INDUSTRY PROFILE: ALL PRIVATE AND PUBLIC SECTOR EMPLOYERS—Continued Number of establishments NAICS Industry 72 ........... Accommodation and Food Services. Other Services & Auxiliaries. Unclassified ............. All industries ............ Government ............ 81 & 95 ... 99 ........... ............ Employment Number of firms Estimated revenues ($1000) Annual payroll ($1000) Estimated net income ($1000) 591,605 447,113 189,461,657 559,882,364 4,192,717 1,112,327 4,466,292 455,279 128,156,787 543,507,574 3,291,846 140,476 10,437,770 179,952 190,374 113,977,648 19,385,969 100,969 7,786,426 89,526 6,592,088 5,107,828,608 769,877,876 29,688,367 29,672,157,281 3,536,511,409 763,157 717,263,252 401,304,167 10,617,722 Public and Private Sector Total 11,218,253 133,363,617 7,875,952 5,877,706,485 33,208,668,690 1,118,567,419 *Sources: BLS Unpublished special tabulations; 2007 Annual Survey of State and Local Government Employment and Payroll; 2007 Census of Government Finance; Census of Agriculture; IRS 2001 Statistics of Income. * Net income for farms is not available. * NAICS code 48–49 includes the Postal Service (Source: www.usps.com, and USPS Annual Report 2008); postal service employees are covered by the proposed rulemaking while most other Federal employees are covered under FMLA regulations administered by the Office of Personnel Management. TABLE 2–2—2008 INDUSTRY PROFILE: COVERED EMPLOYERS Number of establishments NAICS Industry 11 ........... Agriculture, Forestry, Fishing & Hunting. Farms ...................... Mining ...................... Utilities ..................... Construction ............ Manufacturing ......... Wholesale Trade ..... Retail Trade ............ Transportation and Warehousing *. Information .............. Finance and Insurance. Real Estate and Rental and Leasing. Professional, Scientific & Technical Serv. Management of Companies & Enterprises. Admin, Support, Waste Mgmt & Remed Serv. Education Services—Total. Education Services—all others. Education Services—Elementary and Secondary. Health Care and Social Assistance. Arts, Entertainment, and Recreation. Accommodation and Food Services. Other Services & Auxiliaries. Unclassified ............. 11f .......... 21 ........... 22 ........... 23 ........... 31–33 ..... 42 ........... 44–45 ..... 48–49 ..... 51 ........... 52 ........... 53 ........... 54 ........... 55 ........... 56 ........... 61 ........... 61a ......... 61e ......... 62 ........... tkelley on DSK3SPTVN1PROD with PROPOSALS2 71 ........... 72 ........... 81 & 95 ... 99 ........... ............ VerDate Mar<15>2010 All industries ............ Government ............ 17:24 Feb 14, 2012 Jkt 226001 Employment Number of firms Estimated revenues ($1000) Annual payroll ($1000) Estimated net income ($1000) 4,867 537,602 2,043 9,150,199 90,343,170 1,295,858 * 5,370 6,428 25,880 63,903 78,026 215,675 32,748 * 534,418 472,599 2,651,363 10,272,292 3,056,807 10,146,178 3,907,594 * 1,614 915 19,032 34,929 21,258 22,267 8,755 * 53,624,288 48,585,145 181,278,503 637,870,080 291,441,021 338,457,243 216,154,621 * 214,181,588 503,859,306 787,171,326 4,435,460,496 2,862,989,339 3,998,484,468 715,836,368 * 22,080,354 26,102,570 6,956,491 211,718,345 21,066,806 84,801,022 12,813,522 38,790 115,439 2,323,185 4,007,678 5,025 9,251 205,020,423 477,979,216 693,282,719 2,195,244,677 42,915,077 104,279,817 37,505 842,136 5,183 62,400,405 162,795,517 8,385,978 59,834 4,020,484 17,396 407,974,385 789,102,823 13,716,076 22,249 1,650,176 24,332 187,531,345 334,394,917 40,851,477 52,724 5,415,739 20,048 218,388,045 389,310,585 2,811,964 — — — — — — 7,557 1,328,922 3,297 67,069,643 158,106,124 3,524,541 19,959 877,941 18,639 24,377,033 83,142,727 958,024 114,670 11,364,063 34,298 523,657,606 1,201,616,565 12,720,148 10,311 1,134,984 5,779 38,736,030 115,713,478 2,110,154 105,210 5,955,522 27,601 150,133,805 285,088,709 2,949,814 50,994 1,260,055 9,486 59,437,649 170,730,790 1,664,491 13 1,185 11 0 0 0 1,068,152 179,952 71,760,923 19,385,969 291,159 89,526 4,199,266,686 769,877,876 20,186,855,692 3,536,511,409 623,722,527 401,304,167 PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 E:\FR\FM\15FEP2.SGM 15FEP2 8989 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules TABLE 2–2—2008 INDUSTRY PROFILE: COVERED EMPLOYERS—Continued NAICS Total Number of establishments Industry ................................. Employment 1,248,104 91,146,892 Number of firms 380,685 Estimated revenues ($1000) Annual payroll ($1000) 4,969,144,562 Estimated net income ($1000) 23,723,367,101 1,025,026,694 Sources: BLS Unpublished special tabulations; 2007 Annual Survey of State and Local Government Employment and Payroll; 2007 Census of Government Finance; Census of Agriculture; IRS 2001 Statistics of Income. * Based on the 2007 Census of Agriculture, about 2% of all farms have more than 10 hired employees, suggesting that the number of covered farms is likely very close to zero. Due to the seasonal nature of farm employment, it is similarly likely that few employees would be eligible for FMLA leave even if the farm were covered. * NAICS code 48–49 includes the Postal Service (Source: www.usps.com, and USPS Annual Report 2008); postal service employees are covered by the proposed rulemaking while most other Federal employees are covered under FMLA regulations administered by the Office of Personnel Management. C. FMLA Leave Profile This section describes how, in light of the recent amendments, the Department estimated the number of covered, eligible workers who may be in a position to take qualifying exigency or military caregiver leave and the number of leaves they may take, and the number of covered eligible flight crew members and flight attendants who may take FMLA leave and the number of leaves they may take. 1. Military Family Leave Under FMLA The proposed changes to the military family leave provisions of FMLA impact a variety of employees and employers across the economy. While these proposed changes do not alter the conditions for employer coverage or employee eligibility under the FMLA, they do change the circumstances under which eligible employees who are family members of covered servicemembers qualify for FMLA leave and, as a result, will affect the number and frequency of FMLA leaves taken for those reasons. In order to estimate the number of individuals who may take leave under the qualifying exigency or military caregiver provisions as a result of the proposed changes, the Department estimated the number of servicemembers or veterans covered by the amendments, completed an age profile of those individuals and estimated the number of eligible family members or potential caregivers likely to be associated with each age range. This method is described in full detail in Appendix A. a. Qualifying Exigency The FY 2010 NDAA amendments to the FMLA provide that an eligible employee may take FMLA leave for any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is on (or has been notified of an impending call to) covered active duty in the Armed Forces. For members of a regular component of the Armed Forces, this means duty during deployment to a foreign country. For members of the U.S. National Guard and Reserves, it means duty during deployment to a foreign country under a call or order to active duty under a provision of law referred to in section 101(a)(13)(B) of title 10, United States Code. To determine the number of eligible employees who may take FMLA leave as a result of this amendment, the Department first estimated the number of servicemembers on covered active duty and the number of family members who may be eligible and employed at a covered employer and then subtracted those servicemembers and family members already entitled to take qualifying exigency leave prior to the FY 2010 NDAA amendments. Clear, consistent data on the number of military personnel deployed in any given year are difficult to find; many sources, for example, do not adequately distinguish military personnel deployed overseas from those stationed overseas. In addition, estimates might vary significantly depending on sources utilized.20 Furthermore, when deployments do occur, a Congressional Research Service report showed that estimates of personnel involved might vary significantly depending on definition and source. Thus, estimates of ‘‘boots on the ground’’ in Iraq between 2003 and 2008 are only 30 percent to 60 percent of the total involved when personnel outside Iraq are included.21 Therefore, the Department drew on several data sources to determine the number of servicemembers likely to be called to covered active duty in the Armed Forces annually. Table 3–1 provides a summary of deployments of the U.S. Armed Forces from 1960 through 2007. Although composed of the best data found to date, some estimates of personnel deployed appear to use more restrictive definitions than would be covered by the Department’s definition of covered active duty. For example, the table shows deployment of 1,200 personnel for operations in Lebanon from 1982 through 1984. However, this appears to include only those Marine Corps troops that were on the ground in Lebanon, but excludes sailors on the Navy support ships that were also deployed in this operation.22 TABLE 3–1—U.S. DEPLOYMENTS AND TOTAL ACTIVE MILITARY PERSONNEL, 1960–2007 Total active military personnel [b] tkelley on DSK3SPTVN1PROD with PROPOSALS2 Year 1960 .................................................................... 1961 .................................................................... 20 See, for example, the promisingly, but misleadingly, titled: Kane, T. 2004. Global U.S. Troop Deployment, 1950–2003. The Heritage Foundation. October 27. Accessed at http:// www.heritage.org/research/reports/2004/10/globalus-troop-deployment-1950-2003 on October 7, 2010. VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 2,490,000 2,550,000 Deployed Personnel Total [a] 900 3,000 Active 900 3,000 21 Belasco, A. 2009. Troop Levels in the Afghan and Iraq Wars, FY2001–FY2010: Cost and Other Potential Issues. Congressional Research Service. July 2. Accessed at http://www.fas.org/sgp/crs/ natsec/R40682.pdf on October 7, 2010. PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 Total deployed as percent of total active 0.04 0.12 Deployment Vietnam [c] 22 For example, the U.S.S. New Jersey provided offshore fire support during this operation; this ship alone has a crew of about 1,900. Thus, this source may use a ‘‘boots on the ground’’ definition. E:\FR\FM\15FEP2.SGM 15FEP2 8990 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules TABLE 3–1—U.S. DEPLOYMENTS AND TOTAL ACTIVE MILITARY PERSONNEL, 1960–2007—Continued Total active military personnel [b] Year Total [a] Total deployed as percent of total active Active Deployment .................................................................... .................................................................... .................................................................... .................................................................... .................................................................... .................................................................... .................................................................... .................................................................... .................................................................... .................................................................... .................................................................... .................................................................... .................................................................... .................................................................... .................................................................... .................................................................... .................................................................... .................................................................... .................................................................... .................................................................... .................................................................... .................................................................... .................................................................... .................................................................... .................................................................... .................................................................... .................................................................... .................................................................... .................................................................... .................................................................... .................................................................... .................................................................... .................................................................... 2,690,000 2,700,000 2,690,000 2,720,000 3,230,000 3,410,000 3,490,000 3,450,000 2,980,000 2,630,000 2,360,000 2,230,000 2,160,000 2,100,000 2,080,000 2,070,000 2,060,000 2,030,000 2,050,000 2,080,000 2,110,000 2,120,000 2,140,000 2,150,000 2,170,000 2,170,000 2,140,000 2,130,000 2,050,000 1,990,000 1,810,000 1,710,000 1,610,000 11,000 16,000 23,000 184,000 385,000 486,000 536,000 475,000 335,000 157,000 24,000 50 11,000 16,000 23,000 184,000 385,000 486,000 536,000 475,000 335,000 157,000 24,000 50 0.41 0.59 0.86 6.76 11.92 14.25 15.36 13.77 11.24 5.97 1.02 0.00 10,000 1,200 1,200 10,000 1,200 1,200 0.47 0.06 0.06 Lebanon [e], Grenada [e] Lebanon [e] 27,000 27,000 1.27 Panama [e] 560,000 25,800 25,800 26,500 476,000 25,800 25,800 26,500 28.14 1.43 1.51 1.65 1995 .................................................................... 1,520,000 12,200 12,200 0.80 1996 .................................................................... 1997 .................................................................... 1998 .................................................................... 1999 .................................................................... 2000 .................................................................... 2001 .................................................................... 2002 .................................................................... 2003 .................................................................... 2004 .................................................................... 2005 .................................................................... 2006 .................................................................... 2007 .................................................................... Average ............................................................... tkelley on DSK3SPTVN1PROD with PROPOSALS2 1962 1963 1964 1965 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 Deployed Personnel 1,470,000 1,440,000 1,410,000 1,390,000 1,380,000 1,390,000 1,410,000 1,430,000 1,410,000 1,380,000 1,380,000 1,380,000 2,102,000 2,140,000 9,300 1,400 9,300 1,400 0.63 0.10 Somalia [e], Rwanda [e], Haiti [e] Somalia [e], Haiti [e], Bosnia [e] Haiti [e], Bosnia [e] Iraq ONW [f] 37,100 37,100 2.67 Kosovo [f] 83,400 21,100 237,600 236,100 258,900 265,400 285,700 99,200 144,000 83,400 21,100 178,200 177,100 194,200 199,100 214,300 90,800 132,000 6.00 1.50 16.62 16.74 18.76 19.23 20.70 4.7 6.7 Iraq (1) [f] Iraq OSW [f], Somalia [e] Afghanistan [d] Afghanistan [d], Iraq (2) [g] Overall, 1960–2007 Deployment Years Only [a] Total deployed personnel is equal to the active personnel plus Reserve and/or National Guard personnel. [b] Kane, T. 2004. Global U.S. Troop Deployment, 1950–2003. The Heritage Foundation. October 27. Accessed at http://www.heritage.org/research/reports/2004/10/global-us-troop-deployment-1950-2003 on October 7, 2010. [c] American War Library. Vietnam War Allied Troop Levels 1960–73. Accessed at: http://www.americanwarlibrary.com/vietnam/vwatl.htm on October 7, 2010. [d] Belasco, A. 2009. Troop Levels in the Afghan and Iraq Wars, FY2001–FY2010: Cost and Other Potential Issues. Congressional Research Service. July 2. Accessed at http://www.fas.org/sgp/crs/natsec/R40682.pdf on October 7, 2010. [e] Sarafino, N.M. 1999. Military Interventions by U.S. Forces from Vietnam to Bosnia: Background, Outcomes, and ‘‘Lessons learned’’ for Kosovo. Congressional Research Service. May 20. [f] U.S. Department of Defense, Deployment Health Clinical Center (DHCC): Deployments by Operation. Accessed at http://www.pdhealth.mil/ dcs/deploy_op.asp on October 7, 2010. [g] ‘‘Contingency Tracking System deployment file for Operation Enduring Freedom and Iraqi Freedom, as of: October 31, 2007.’’ Accessed at: http://veterans.house.gov/Media/File/110/2-7-08/DoDOct2007-DeploymentReport.htm. OSW (Operation Southern Watch) and ONW(Operation Northern Watch) refer to operations in support of the Iraqi no-fly zones. Supplementing the deployment data with annual active military personnel counts, the Department estimated the VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 annual number and percent of military personnel deployed on average over the 1960 to 2007 period. Over the entire 48- PO 00000 Frm 00032 Fmt 4701 Sfmt 4702 year period, each year the U.S. deployed on average about 99,200 of its 2.1 million personnel active military force E:\FR\FM\15FEP2.SGM 15FEP2 8991 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules (4.7 percent) on operations that meet the definition of covered active duty. The overall average covers a wide variation in the timing, duration, and size of those operations; of the 48 years included in Table 3–1, in: ■ 16 years, essentially no personnel were deployed (with the exception of 50 servicemembers in Vietnam in 1973); ■ 18 years, 900 to 37,100 personnel were deployed, an average of 15,400 per year (0.8 percent of active servicemembers); ■ 14 years (Vietnam and the two Iraq conflicts), deployments ranged from 83,400 to 560,000 personnel, an average of 320,400 per year (13.9 percent of active servicemembers). Finally, with the exception of the Vietnam and second Iraq conflicts, most of the conflicts listed in Table 3–1 were for two years or less. Based on the information provided in Table 3–1, and acknowledging the limitations of those data, the Department judged that the simple average of 99,200 deployed personnel does not adequately represent the typical number of service personnel on covered active duty in any given year for projecting the costs associated with this rule. The Department also calculated that, on average, 144,000 personnel per year were deployed in the 33 years in which a deployment occurred. Using this figure instead to represent average annual deployments on covered active duty provides a 45 percent cushion to account for data inconsistencies and omissions. Therefore, for the purposes of this PRIA, we assume an average of 144,000 military personnel are deployed per year on covered active duty. Two additional adjustments to this estimate must be made: ■ Qualifying exigency leave for eligible family members of National Guard and Reserve personnel was promulgated in 2008. ■ Military personnel may deploy more than once in any given year; if their eligible family members use less than the entire allotment of leave on the first deployment (12 weeks), they may use some or all of the remaining leave on subsequent deployments that year. Data on U.S. military deployments showed that 17 percent of personnel deployed to Iraq in 1991 were Reserve units, while 28 percent of personnel deployed to Iraq between 2003 and 2007 were Reserve or National Guard units.23 Therefore, the Department adjusted the estimated number of personnel downward by 15 percent for 1991, and 25 percent for 2003 through 2007. Thus, we estimate that on average 132,000 active military personnel per year are deployed on covered active duty. The Department used a Department of Defense news release on typical deployment lengths in the Iraq conflict by service (Army, 1 year; Navy and Marines, six months; Air Force, 3 months) 24 to estimate the average number of deployments per person. This average was weighted by the relative percent of active personnel by service deployed to Iraq (Army, 61 percent; Navy and Marines, 28 percent; Air Force, 11 percent) 25 to determine that the military would use 1.49 deployments to maintain one person in Iraq for one year. Thus, deployment of 132,000 personnel might require 197,000 actual deployments per year. In the 2008 final rule, the Department estimated the joint probability that a servicemember will have one or more family members (parent, spouse, or adult child), that those family members will be employed at an FMLA-covered establishment, and that they would be eligible to take FMLA leave under the qualifying exigency provision (see 2007 PRIA and Appendix A). Applying these joint probabilities to the 197,000 annual deployments, the Department estimates approximately 193,000 family members will be eligible to take FMLA leave to address qualifying exigencies. Military deployments represent a nonroutine departure from normal family life to potentially long-term exposure to a high stress, high risk environment, often at relatively short notice. Therefore, the Department assumes the rate at which eligible employees take FMLA leave for this purpose will be twice the rate (about 16 percent) of those taking regular FMLA leave (7.9 percent). The Department does not assert that only 16 percent of family members will take leave for reasons related to the servicemember’s deployment, but that 16 percent will use leave designated as FMLA leave for qualifying exigencies. Based on these assumptions, the Department estimates 30,900 family members will take FMLA leave annually to address qualifying exigencies. In the 2008 final rule, the Department developed a profile of the ‘‘typical’’ usage of qualifying exigency leave over the course of a 12-month period for an eligible employee. Under this leave profile, the typical employee will take a one week block of leave upon notification of the deployment of the servicemember, ten days of unforeseeable leave during deployment, one week of foreseeable leave to join the servicemember while on Rest and Recuperation, and one week of foreseeable leave post deployment to address qualifying exigencies. 73 FR 68051. The proposed revisions to the rule increase foreseeable leave to join a servicemember while the servicemember is on Rest and Recuperation leave. Table 3–2 summarizes the revised leave pattern. TABLE 3–2—PROFILE OF QUALIFYING EXIGENCY LEAVE Description Notice of Deployment ................................................................................................... During Deployment ....................................................................................................... During Deployment, ‘‘Rest and Recuperation’’ ............................................................ Post Deployment .......................................................................................................... Total ...................................................................................................................... tkelley on DSK3SPTVN1PROD with PROPOSALS2 Reason 23 Belasco, A. 2009. Troop Levels in the Afghan and Iraq Wars, FY2001–FY2010: Cost and Other Potential Issues. Congressional Research Service. July 2. Accessed at http://www.fas.org/sgp/crs/ natsec/R40682.pdf on October 7, 2010. ‘‘Contingency Tracking System deployment file for Operation Enduring Freedom and Iraqi Freedom, as of: October 31, 2007.’’ Accessed at: VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 Days Hours 1 week unforeseeable .............................. 10 days unforeseeable ............................. 10 days foreseeable ................................. 1 week foreseeable .................................. 5 10 10 5 40 80 80 40 ................................................................... 30 240 http://veterans.house.gov/Media/File/110/2-7-08/ DoDOct2007-DeploymentReport.htm. 24 DOD News Briefing with Secretary Gates and Gen Pace from the Pentagon. April 11, 2007. Available at URL: http://www.defense.gov/ Transcripts/Transcript.aspx?TranscriptID=3928. See also: Powers, R. 2007. ‘‘Joint Chiefs Continue to Examine Deployment Lengths.’’ April 14. PO 00000 Frm 00033 Fmt 4701 Sfmt 4702 Accessed at http://usmilitary.about.com/od/ terrorism/a/deploylength.htm. 25 ‘‘Contingency Tracking System deployment file for Operation Enduring Freedom and Iraqi Freedom, as of: October 31, 2007.’’ Accessed at: http://veterans.house.gov/Media/File/110/2-7-08/ DoDOct2007-DeploymentReport.htm. E:\FR\FM\15FEP2.SGM 15FEP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 8992 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules For the purpose of this analysis, the Department is assuming that the average employee will take 10 days of leave to be with their servicemember during rest and recuperation leave. While the Department proposes increasing the number of days of qualifying exigency leave an employee may take for the servicemember’s Rest and Recuperation leave to coincide with the number of days provided the servicemember, up to 15 days, the Department does not have a basis at this time to estimate the percentage of servicemembers who would be granted 15 days of Rest and Recuperation or the probability that their family member(s) would join them for Rest and Recuperation leave. Therefore, the Department assumes for the purpose of this analysis that a covered and eligible employee will take 10 days of qualifying exigency leave for the servicemember’s Rest and Recuperation leave. The Department invites comment on the amount of Rest and Recuperation leave provided to service personnel and the extent to which employees would take an equal number of days of FMLA-qualifying exigency leave to be with their servicemember-family member. Based on this profile, the Department estimates that 30,900 eligible employees will take 927,000 days (7.4 million hours) of FMLA leave annually to address qualifying exigencies under the FY 2010 NDAA amendments. These estimates may vary from 772,000 days (6.2 million hours) if eligible employees average five days of leave to 1.1 million days (8.7 million hours) if they average 15 days of leave when a servicemember is on Rest and Recuperation leave. The Department acknowledges that estimated qualifying exigency leave also represents an average of periods with high levels of deployment and active conflict and periods with low or minimal deployments. Therefore, the Department supplements its analysis by considering a ‘‘heavy conflict’’ scenario and a ‘‘low conflict’’ scenario to capture the range of leave usage that may be expected in any given year in the future. Drawing on the data in Table 3–1, for the purposes of these cost estimates, the Department defines the low conflict scenario as a year containing no deployment exceeding 40,000 servicemembers, while the heavy conflict scenario is one in which deployments exceed 40,000 servicemembers. Applying this standard to the data in Table 3–1, the average size of a deployment during the low conflict scenario is 15,400 troops, compared to 320,400 during a period of heavy conflict. VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 The Department applied the same probabilities of having eligible family members and patterns of leave usage as were used for the average analysis. Using this method, the Department estimates that 2,400 employees will take 72,060 days (576,500 hours) of leave for qualifying exigencies under the low conflict scenario, while 50,244 employees will take 1.5 million days (12 million hours) of leave during periods of heavy conflict. b. Military Caregiver Leave Military caregiver leave entitles an eligible employee who is the spouse, son, daughter, parent, or next of kin of a ‘‘covered servicemember’’ to take up to 26 workweeks of FMLA leave in a ‘‘single 12-month period’’ to care for a covered servicemember with a serious injury or illness. Under the FY 2010 NDAA amendments, the definition of ‘‘covered servicemember’’ is expanded to include a veteran ‘‘who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness’’ if the veteran was a member of the Armed Forces ‘‘at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy.’’ The FY 2010 NDAA amendments define a serious injury or illness for a covered veteran as ‘‘a qualifying (as defined by the Secretary of Labor) injury or illness that was incurred by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that manifested itself before or after the member became a veteran.’’ The amendments also expand the definition of ‘‘serious illness or injury’’ to include an injury or illness of a current member of the military that ‘‘existed before the beginning of the member’s active duty and was aggravated by service in line of duty’’ and that may cause the servicemember to be unable to perform the duties of his or her office, grade, rank, or rating. The Department does not attempt in this analysis to estimate the number of additional current servicemembers who may be covered under this expansion of the definition due to the lack of data to support reasonable assumptions on the potential size of this group. However, for the reasons discussed earlier in this preamble, the Department believes it is reasonable to conclude that the number of servicemembers entering the military with an injury or illness with the potential to be aggravated by service to the point of rendering the PO 00000 Frm 00034 Fmt 4701 Sfmt 4702 servicemember unable to perform the duties of his or her office, grade, rank, or rating is quite small due to the selection process used by the U.S. Armed Forces. To determine the number of eligible employees that may take FMLA leave as a result of the expansion of caregiver leave to family members of covered veterans, the Department first estimated the number of veterans likely to undergo medical treatment for a serious injury or illness, and the number of family members who are employed by a covered employer and who may be eligible to take FMLA leave to care for them. The Department reviewed several summaries of injuries and illnesses among military servicemembers to estimate the rate at which injuries that are sufficiently severe as to require medical care after separation from the military might occur.26 A number of data limitations make the estimation of serious injury and illness rates problematic: ■ The Department of Defense generally publishes data on the number of servicemembers killed or wounded in action, but little about non-combat injuries and illnesses. ■ Except for the most severe injuries (e.g., amputations, severe burns, blindness), little is published about the nature or severity of illnesses and injuries. After completing its review, described below, the Department estimates that an average of about 46,900 servicemembers will incur injuries or illnesses that may require treatment after separation from the military, for which family members will be eligible for military caregiver leave.27 This number includes the 14,000 servicemembers whose family 26 The most useful of these sources were: Dole, R. and D. Shalala. Serve, Support, and Simplify. Report of the President’s Commission on Care for America’s Returning Wounded Warriors. July, 2007. Fischer, H. United States Military Casualty Statistics: Operation Iraqi Freedom and Operation Enduring Freedom. CRS Report for Congress. Congressional Research Service, March 25, 2009. Tanielian, T. and L.H. Jaycox (eds.). Invisible Wounds: Mental Health and Cognitive Care Needs of America’s Returning Veterans. Research Highlights. RAND Center for Military Health Policy Research. 2008. U.S. Department of Defense. DoD Military Injury Metrics Working Group White Paper. December 2002. 27 For the purposes of describing the calculations in this section, we assume each injury or illness occurs to one veteran (i.e., 46,900 veterans experience 46,900 injuries and illnesses). However, veterans might experience more than one injury or illness, and the family members of fewer than 46,900 veterans might take multiple leaves to care for the 46,900 injuries and illnesses. The total estimated leaves and costs will be identical in both cases. E:\FR\FM\15FEP2.SGM 15FEP2 8993 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules members are expected to take military caregiver leave while the servicemember is still in the military. The Department reached this estimate based on the information and analysis presented in the following paragraphs. The Department first estimated the percent of servicemembers that might receive an injury or illness requiring care while in the service or after separation. In 2001, the Department of Veterans Affairs undertook a survey that showed 24 percent of veterans that served during the Gulf War era reported having a service-related disability rating.28 Service-related disability ratings do not require that the servicemember is disabled; the rating might be less than 30 percent (or even zero in the case of a service-related injury that healed prior to separation;) however, the mere fact that a servicemember has a rating indicates that a service-related injury occurred.29 The Department then examined deployment rates across different time periods. Table 3–1 indicates that servicemembers deployed during the Gulf War of 1991 account for about 28 percent of the total active military at that time. The same tables show that servicemembers deployed in Operations Enduring Freedom and Iraqi Freedom (Iraq (2)) comprise a smaller percentage of the active military (roughly 20 percent). However, the Department believes this is an underestimate; because the second Iraq conflict lasted several years, it is likely that many in the active military not deployed at the time of the snapshot were deployed sometime during its duration; conversely, the first Iraq war was relatively brief, and personnel had a smaller likelihood of rotating into the war zone during its duration. Therefore, the Department believes that the percent of active military personnel that were deployed to Afghanistan or Iraq is higher than the calculations in Table 3–1 show, and that the true percent is similar to the first Iraq conflict: approximately 30 percent of active military personnel were deployed. The Department also concludes that the percent of veterans that received a service-connected disability rating from the first Gulf War era is a reasonable proxy for veterans of the period 2003 through 2007, about 25 percent (rounded up from 24 percent). Thus, the Department expects that at least 25 percent of active military personnel in the post-9/11 era will separate from the military with a disability rating. Data provided by the Department of Veterans’ Affairs indicates that among the population of current veterans with a disability rating, 39.3 percent have a rating of 50 percent or greater (Table 3– 3). Assuming the distribution of disability ratings among servicemembers who will separate from the military in years to come is the same as the distribution of disability ratings of current veterans, the Department estimates that 10 percent (rounding up, 25 percent × 40 percent = 10 percent) of separating servicemembers will have a disability rating of 50 percent or greater. TABLE 3–3—2010 DISTRIBUTION OF CURRENT VETERANS BY DISABILITY RATING Degree of disability (%) Number of current veterans with DR Percent of current veterans with DR Cumulative percent of current veterans with DR 0 10 20 30 40 50 60 70 80 90 100 12,145 779,997 445,472 365,254 312,301 205,419 246,132 227,528 172,491 97,591 290,396 0.4 24.7 14.1 11.6 9.9 6.5 7.8 7.2 5.5 3.1 9.2 0.4 25.1 39.2 50.8 60.7 67.2 75.0 82.2 87.7 90.8 100.0 tkelley on DSK3SPTVN1PROD with PROPOSALS2 Source: Department of Veterans Affairs. However, it is possible that a servicemember may not manifest the symptoms of a serious injury or illness at the time of his or her separation, and therefore, not go through the VA disability rating process prior to leaving the service. In 2008, the RAND organization published a report entitled Invisible Wounds: Mental Health and Cognitive Care Needs of America’s Returning Veterans (Tanielian and Jaycox, 2008). The RAND report summarized the results from a survey of servicemembers, which found that among servicemembers who returned from Operation Enduring Freedom and Operation Iraqi Freedom: ■ 11.2 percent met the criteria for post-traumatic stress disorder (PTSD) or depression, ■ 12.2 percent had likely experienced a traumatic brain injury (TBI), ■ 7.3 percent had experienced both a TBI and either PTSD or a TBI and depression, and ■ Roughly 50 percent of these servicemembers sought treatment for their symptoms within one year of returning from overseas. Furthermore, symptoms of such injuries may not appear until several years after the injury was experienced, have traditionally been badly underreported, and are not well understood. Due to the high visibility research performed in this area, and recent initiatives undertaken by the Department of Veterans Affairs,30 it is reasonable to assume a much higher percentage of these types of injuries will be diagnosed and reported than in previous cohorts of veterans. Consequently, the Department must also account for veterans who may 28 U.S. Department of Veterans Affairs. 2001 National Survey of Veterans. Accessed at http:// www1.va.gov/VETDATA/docs/SurveysAndStudies/ NSV_Final_Report.pdf. 29 Veterans Administration Service Related Disability Rating (VASRD). Accessed at http:// myarmybenefits.us.army.mil/Home/ Benefit_Library/Federal_Benefits_Page/Veterans_ Administration_Schedule_for_Rating_ Disabilities_(VASRD).html?serv=150. 30 See, for example: DeKosky, S.T., M.D. Ikonomovic, and S. Gandy. 2010. Traumatic Brain Injury—Football, Warfare, and Long-Term Effects. The New England Journal of Medicine. 363:14. September 30. U.S. Department of Veterans Affairs. 38 CFR Part 3. Post Traumatic Stress Syndrome. Interim Final Rule. Federal Register, Vol. 73, No. 210, p. 64208. VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4702 E:\FR\FM\15FEP2.SGM 15FEP2 8994 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules suffer a serious injury or illness that manifested after his or her separation from the military. Evidence shows that approximately 30 percent of servicemembers that were deployed to Afghanistan and Iraq experienced a TBI, PTSD, or depression, and roughly 30 percent of active military personnel were deployed to Afghanistan or Iraq. Assuming that such injuries would result in the equivalent of a VASRD rating of at least 50 percent, and did not manifest until after separation from the military, it is reasonable to estimate that 10 percent (0.3 × 0.3 = 0.09, then rounding up) of these veterans incurred such an injury or illness that manifested after separation from the military. The Department added this 10 percent of veterans who suffer a post-separation serious injury or illness to the 10 percent of military members who separate from the military with a VASRD rating. Therefore, the estimated percent of veterans likely to have a service-related injury or illness that might require treatment after separation is 20 percent. In summary, for the purposes of this PRIA, the Department assumes that 20 percent of servicemembers may separate from the military with an injury or illness requiring treatment. This may be an overestimate. We assume that of the additional 10 percent of servicemembers that experience a serious injury or illness that might not manifest until well after the event occurs (e.g., PTSD, TBI, or depression), none go through the VA disability rating process. We also assume that all eventually seek treatment within five years. Both of these assumptions are very conservative. This estimate suffers from a number of qualifications and limitations: D This injury rate was based on data for military personnel that had a high likelihood of experiencing active combat while in the military; to the extent that future cohorts experience less combat, the injury rate may well be significantly smaller. D It is not clear that all injuries included in this figure will be severe enough to require treatment. D Even if the injury is severe, it is unclear that the servicemember will seek treatment; it has long been known that the treatment rate for mental health conditions such as depression amongst the general population is less than 100 percent. D This estimate does not account for other injuries that might require treatment; however, the Department could find little data on which to base an estimate of such injuries. D This estimate abstracts from the requirement that treatment must occur within five years of separation for the injury to be eligible for FMLA caregiver leave. Thus, we implicitly assume 100 percent will seek treatment within five years. The Department used projections of military personnel separations for fiscal years 2010 through 2036 from the Department of Veterans Affairs as the basis for the average number of personnel who might newly seek medical care in a given year, see Table 3–4.31 We did not model a medical care usage pattern for these servicemembers. Because we project this to be an average annual ‘‘stream’’ of cohorts of separating servicemembers, as long as we assume each year’s cohort follows the same usage pattern, the primary factor governing the number of servicemembers requiring treatment is the total number in each cohort that will seek treatment within five years.32 TABLE 3–4—MILITARY SEPARATIONS 2010–2036 BY BRANCH AND PERIOD Separations by Branch [a] Fiscal year tkelley on DSK3SPTVN1PROD with PROPOSALS2 Army FY2010 FY2011 FY2012 FY2013 FY2014 FY2015 FY2016 FY2017 FY2018 FY2019 FY2020 FY2021 FY2022 FY2023 FY2024 FY2025 FY2026 FY2027 FY2028 FY2029 FY2030 FY2031 FY2032 FY2033 FY2034 FY2035 ........................................................................................... ........................................................................................... ........................................................................................... ........................................................................................... ........................................................................................... ........................................................................................... ........................................................................................... ........................................................................................... ........................................................................................... ........................................................................................... ........................................................................................... ........................................................................................... ........................................................................................... ........................................................................................... ........................................................................................... ........................................................................................... ........................................................................................... ........................................................................................... ........................................................................................... ........................................................................................... ........................................................................................... ........................................................................................... ........................................................................................... ........................................................................................... ........................................................................................... ........................................................................................... 31 U.S. Department of Veterans Affairs. 2008. Demographics: Veteran Population Model 2007. Table 8S. January. Accessed at http://www1.va.gov/ VETDATA/Demographics/Demographics.asp. 32 For example, compared to a single cohort separating from the military over 5 years, modeling VerDate Mar<15>2010 22:25 Feb 14, 2012 Jkt 226001 Navy Air Force 77,761 78,401 78,843 79,584 79,956 79,479 79,203 79,607 80,052 80,196 80,187 80,338 81,015 80,995 80,409 79,502 79,632 79,953 79,878 79,477 79,930 80,148 79,965 79,857 79,925 79,867 46,927 46,803 46,643 46,741 46,956 46,672 46,506 46,740 46,998 47,079 47,071 47,156 47,550 47,535 47,188 46,653 46,726 46,912 46,865 46,627 46,890 47,015 46,906 46,839 46,877 46,840 37,053 36,979 36,876 36,976 37,160 36,948 36,830 37,028 37,245 37,322 37,327 37,407 37,731 37,730 37,466 37,052 37,121 37,278 37,251 37,072 37,291 37,401 37,323 37,279 37,318 37,298 the separation of that same cohort over 10 years will result in fewer servicemembers from that cohort seeking treatment in any given year. However, modeling separation over 10 years will result in servicemembers from more cohorts seeking treatment in a given year. Thus, in a steady state, PO 00000 Frm 00036 Fmt 4701 Sfmt 4702 Marines Reserve Forces [b] 28,892 28,784 28,655 28,685 28,799 28,607 28,488 28,614 28,755 28,788 28,767 28,803 29,028 29,004 28,777 28,437 28,467 28,566 28,524 28,366 28,513 28,576 28,497 28,444 28,455 28,421 48,342 28,148 18,075 8,019 8,054 8,004 7,974 8,012 8,055 8,067 8,064 8,077 8,143 8,140 8,079 7,986 7,997 8,027 8,018 7,976 8,020 8,040 8,020 8,008 8,013 8,006 Coast Guard [c] 4,391 4,523 4,649 4,798 4,820 4,790 4,773 4,796 4,822 4,830 4,829 4,837 4,877 4,875 4,839 4,784 4,791 4,810 4,805 4,780 4,807 4,819 4,808 4,800 4,804 4,800 Grand total 243,367 223,638 213,742 204,803 205,745 204,500 203,773 204,798 205,927 206,281 206,246 206,618 208,346 208,279 206,758 204,414 204,734 205,547 205,341 204,299 205,451 206,000 205,518 205,228 205,392 205,233 the one effect will cancel out the other. Different models of separation patterns will, however, result in different numbers of treatments prior to reaching the steady state, and the net present value of the stream of treatments. E:\FR\FM\15FEP2.SGM 15FEP2 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules 8995 TABLE 3–4—MILITARY SEPARATIONS 2010–2036 BY BRANCH AND PERIOD—Continued Separations by Branch [a] Fiscal year Marines Reserve Forces [b] 37,301 28,404 8,003 4,799 205,196 .............. .............. .............. .............. 207,969 Army Navy Air Force FY2036 ........................................................................................... 79,857 46,832 Average ................................................................................... .............. .............. Coast Guard [c] Grand total tkelley on DSK3SPTVN1PROD with PROPOSALS2 [a] Includes only separations from the five armed services; excludes separations from the Public Health Service (PHS) and National Oceanic and Atmospheric Administration (NOAA). [b] Reserve Forces include only those who have had active Federal military service (other than for training) as a result of their membership in the reserves or National Guard. Reserve forces with prior active military service in the regular military, are classified according to the branch (Army, Navy, Air Force, Marines) in which they served while in the regular military, notwithstanding their subsequent service in the Reserve Forces. [c] Coast Guard separations estimated from VETDATA ‘‘Non-Defense’’ separations by determining the current proportion of non-defense personnel in the Coast Guard (84.8%) versus NOAA and PHS. Source: http://www.va.gov/VETDATA/Demographics/Demographics.asp. The Department proposes to define a serious injury or illness of a veteran as an injury or illness incurred in the line of duty on active duty (or a pre-existing injury or illness exacerbated by service) that manifests itself before or after the member became a veteran and is either: a continuation of a serious injury or illness that was incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the servicemember unable to perform the duties of the servicemember’s office, grade, rank, or rating; a physical or mental condition for which the covered veteran has received a U.S. Department of Veterans Affairs Service Related Disability Rating (VASRD) of 50 percent or higher and such VASRD rating is based, in whole or in part, on the condition precipitating the need for military caregiver leave; or is a condition which significantly impairs the veteran’s ability to secure or follow a substantially gainful occupation. Assuming an annual cohort of 203,000 personnel separate from the military each year, and that 20 percent of those personnel incurred an injury or illness in service that manifests before or after the servicemember became a veteran, the Department estimates that approximately 40,600 military personnel (20 percent of 203,000) per year might have family members who may take FMLA caregiver leave, if the regulatory requirements are met. This estimate may be over-inclusive due to data limitations on the severity of service-related injuries and illnesses. For the 2008 final rule, the Department estimated 1,500 to 14,000 servicemembers will suffer serious injuries or illnesses that require treatment while in the military, and for which family members will take military caregiver leave. 73 FR 68043. Because military caregiver leave may be used for the same injury when the VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 servicemember is in active duty and again when the servicemember becomes a veteran, the family members of these servicemembers in most instances will be eligible for additional caregiver leave after separation from the military by the servicemember. The economic impact attributable to the first instance of leave was accounted for in the 2008 revisions to FMLA, and this economic analysis will need to account for the possibility that these family members may take additional military caregiver leave when their servicemember becomes a veteran. To determine the number of servicemembers whose family members may take military caregiver leave when the servicemember is on active duty and again when the servicemember becomes a veteran the Department assumes that 100 percent of the servicemembers will receive treatment while in the military and that about 50 percent will seek treatment as a veteran (e.g., not all the injuries will be severe enough to require treatment beyond active service in the military). In other words, the number of injured servicemembers per year with family that may be eligible for caregiver leave is equal to 1.5 times 26,600 (40,600 less 14,000 already accounted for under the 2008 revisions) new servicemembers per year. In addition, we assume that one-half of 14,000 servicemembers that already received treatment while in the military, under the 2008 revisions, will receive treatment after separation. Therefore, under this revision to the FMLA, servicemembers and veterans may have approximately 46,900 injuries or illnesses per year that result in eligible family members taking military caregiver leave. Using the previously described calculations of the joint probabilities that a servicemember will have one or more family members eligible for FMLA (see Appendix A), the Department estimates that those 46,900 PO 00000 Frm 00037 Fmt 4701 Sfmt 4702 veterans and servicemembers will have 59,700 eligible family members who may qualify for FMLA and act as caregivers (see Appendix A).33 The Department assumes that at least 26 percent of eligible employees, or an average of 15,500 per year, will take FMLA leave to care for a veteran undergoing medical treatment for a serious injury or illness. This assumption is based on a survey of injured servicemembers concerning the impact of their needs on their caregivers. The survey found that about 16 percent of working caregivers used ‘‘unpaid leave from their job’’ and 10 percent ‘‘cut back their hours’’ to care for the servicemember.34 However, the Department is aware that it is not drawing from a more comprehensive data source and acknowledges the limitations of its estimate. The Department seeks comments on whether there are more complete data sources, or if there are ways to develop a more accurate estimate in the absence of more reliable data, that it could utilize in conducting this part of the analysis. In the 2008 final rule, the Department developed a profile of the ‘‘typical’’ usage of military caregiver leave over the course of a 12-month period for an eligible employee. Under this profile of leave, the typical employee will take a block of four weeks of unforeseeable leave upon notification of the serious injury or illness, a second block of two weeks of unforeseeable leave following 33 The Department made one modification to the joint probabilities used for caregiver leave. In addition to family members such as parents, spouses, and adult children, designated ‘‘next-ofkin’’ are also eligible to take military caregiver leave under FMLA. The Department accounted for this difference by assuming all servicemembers have at least one potential caregiver eligible for FMLA leave. 34 Christensen et al. Economic Impact on Caregivers of the Seriously Wounded, Ill, and Injured. CNA, April 2009. Available at URL: http://www.cna.org/documents/D0019966.A2.pdf. E:\FR\FM\15FEP2.SGM 15FEP2 8996 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules transfer of the covered servicemember to a rehabilitation facility, two one-week blocks of unforeseeable leave for unanticipated complications, and 40 individual days of foreseeable leave to care for the covered servicemember. 73 FR 68051. This profile is based on a typical leave pattern of an eligible employee caring for an injured or ill servicemember on active duty; for the purpose of this analysis, the profile was adjusted to capture a likely leave pattern for employees taking leave to care for a covered veteran. In this case, the nature of the serious injury or illness is expected to be different from those encountered during active duty. We assume an injury to an active duty servicemember that results in FMLA caregiver leave is likely to be a sudden, severe injury, which necessitates a large block of leave for the employee to travel to be at the bedside of the injured servicemember. Conversely, ongoing treatment for an existing injury or diagnosis and then treatment of an emerging injury or illness (e.g., posttraumatic stress disorder, traumatic brain injury) might call for frequent but short periods of leave for the employee to take the servicemember to appointments and provide other ongoing support. Adjusting the leave profile to account for these differences generates a leave pattern such as that summarized in Table 3–5. TABLE 3–5—PROFILE OF MILITARY CAREGIVER LEAVE—VETERANS Reason Description Diagnosis, therapy, or recuperation ............................................................................. Travel to appointments and other errands ................................................................... Total ...................................................................................................................... Based on this profile, the Department estimates that 15,500 eligible employees will take 854,000 days (6.8 million hours) of FMLA leave annually to act as a caregiver for a veteran who is undergoing treatment for a serious illness or injury. 2. Air Transportation Industry FMLA Leave The proposed changes to the FMLA eligibility requirements for airline flight crew employees do not alter the number of covered employers in the airline industry but increase the number of pilots, co-pilots, flight attendants and flight engineers who are eligible to take FMLA leave, and as a result, will likely increase the total number of FMLA Days Hours 1 week unforeseeable .............................. 50 days foreseeable ................................. 5 50 40 400 ................................................................... 55 440 leaves taken by these employees in the airline industry.35 The amendment changes flight crew eligibility such that an airline flight crew employee meets the hours of service requirement if, during the previous 12-month period, he or she has worked or been paid for not less than 60 percent of the applicable total monthly guarantee (or its equivalent), and not less than 504 hours, not including personal commute time, or time spent on vacation, medical, or sick leave. The Department estimated the profile of covered employers in the ‘‘Air Transportation’’ industry, the number of flight crew employees who would be eligible for FMLA leave, and the number of leaves they may take. The profile of covered employers, see Table 3–6 below, was developed by estimating the proportion of NAICS code 48 classified as ‘‘Air Transportation’’ (NAICS 481) in each size class from the 2006 Statistics of U.S. Businesses at the 6-digit NAICS level. This proportion was multiplied by the total number of establishments, firms, employment and payroll in NAICS 48 according to the 2008 BLS special tabulations. Next, employers with fewer than 50 employees were dropped from the profile; as described below, the Department did not attempt to make an adjustment for establishments with fewer than 50 employees that are owned by firms with more than 50 employees in a 75 mile area for this sub-industry. TABLE 3–6—2008 COVERED EMPLOYERS IN AIR TRANSPORTATION Number of establishments Size class (employees) Employment Firms Annual payroll ($1000) Estimated revenues ($1000) Estimated net income ($1000) 50 to 99 .................................................................... 100 to 499 ................................................................ 500+ ......................................................................... 184 544 2,204 5,098 16,577 439,315 118 113 135 $265,903 919,239 24,905,181 $741,840 2,369,610 70,921,603 $4,194 23,342 2,295,261 Total .................................................................. 2,932 460,990 366 26,090,323 74,033,052 2,322,797 tkelley on DSK3SPTVN1PROD with PROPOSALS2 Source: BLS Special Tabulations, 2008; and Statistics of U.S. Businesses, 2006. Based on conversations with experts in the airline industry, the Department assumes that all potentially eligible airline flight crew employees are employed at a covered worksite. In general, flight crew members are scheduled for flights from a home base, or ‘‘domicile.’’ A domicile would not only include the airline flight crew employees, but the non-flight crew employees as well; therefore, the interviewees observed that for most carriers it was very unlikely that airline flight crew employees would be employed at a domicile with fewer than 50 total employees.36 Next, the Department determined the total number of flight crew members employed in air transportation from the BLS Occupational Employment Statistics for 2008; in 2008 there were 35 The FAA defines a flightcrew member as ‘‘A pilot, flight engineer, or flight navigator assigned to duty in an aircraft during flight time.’’ See URL: http://www.faa-aircraft-certification.com/faadefinitions.html. 36 Rob DeLucia. 2010. Interview with Rob DeLucia of AIR Conference, Calvin Franz and Lauren Jankovic, both of ERG. Janet Zweber. 2010. Interview with Janet Zweber of U.S. Airways Pilots Association, Calvin Franz and Lauren Jankovic, both of ERG. VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4702 E:\FR\FM\15FEP2.SGM 15FEP2 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules about 162,200 airline flight crew employees. This includes pilots, copilots, flight engineers, and flight attendants. The next step was to determine the proportion of those flight crew members who will be eligible for FMLA leave. Crew members who are paid for 50 to 60 hours per month will, over the course of a 12-month period, be paid for 600 to 720 hours and they will easily meet the hours of service required for eligibility under the AFCTCA. According to sample data provided by the industry, about 80 percent of American Airlines flight attendants are paid for 50 or more hours per month, and this is considered reasonably representative of industry patterns.37 While a similar distribution of paid hours for pilots is not available, the FAA indicates that most pilots are paid for an average of 75 hours per month; based on this observation, the Department assumes that a similar proportion of pilots, 80 percent, would reach the proposed hours of service required for eligibility. Based on these estimates, about 129,760 airline flight crew employees may be eligible to take FMLA leave. Many airlines have already incorporated FMLA-type provisions in collective bargaining agreements with pilots and flight attendants. In terms of the costs associated with the number of leaves resulting from the proposed changes, it is important to consider the proportion of airline flight crew employees already taking FMLA-type leave under collective bargaining agreements. Based on a review of the current FMLA-type leave policies in the labor contracts for 19 air carriers, the Department finds that about 20 percent of pilots, and 35 to 40 percent of flight attendants are covered and eligible for FMLA-type leave policies.38 Assuming that 80 percent of pilots and 63 percent of flight attendants are not currently covered by FMLA-type policies, the Department estimates, as outlined in Table 3–7, that, of the 129,760 flight crew members that will be eligible, 90,560 are not already covered by an FMLA-type leave policy under a collective bargaining agreement. Because there is little information available on the FMLA-type leave usage patterns of flight crew employees, the Department assumes that flight attendants will use FMLA leave at a similar rate to the rest of the population. Based on interviews with experts in the airline industry, pilots (also co-pilots and flight engineers) tend to use less 8997 FMLA-type leave due to different demographic needs and the availability of other types of paid leave.39 The 2008 PRIA extrapolated leave usage rates from surveys of FMLA leave usage to estimate expected leave use among the general population for 2007; the Department further extrapolated this number to estimate an expected leave usage rate of 7.9 percent of eligible employees and applied this rate to the number of eligible flight attendants not covered by a collective bargaining agreement.40 Given that pilots use less FMLA-type leave, the Department assumed a rate of about 5 percent for eligible pilots and applied that to the estimated number of eligible pilots not covered by a collective bargaining agreement. Based on these estimates and assumptions, just under 6,000 flight attendants, pilots, co-pilots, and flight engineers will take new FMLA leaves under the proposed changes. Assuming that flight crew members will take approximately the same number of leaves per 12-month period as the general population, the Department estimates that each individual will take 1.5 leaves, for a total of 8,930 leaves.41 Table 3–7 summarizes the estimates developed in this section. TABLE 3–7—ESTIMATED FMLA USAGE BY FLIGHT CREWS Number of crew [a] Flight crew Number of eligible crew [b] Eligible crew not covered by CBA FMLAtype policy [c] Eligible crew, not covered by CBA that will take leave [d] Number of new FMLA leaves [e] Pilots .................................................................................... Flight Attendants .................................................................. 64,800 97,400 51,840 77,920 41,470 49,090 2,070 3,880 3,110 5,820 Total .............................................................................. 162,200 129,760 90,560 5,950 8,930 Sources: BLS Occupational Employment Statistics, May 2008, Scheduled Air Transportation; CONSAD Research Corporation, December 7, 2007. [a] Number of pilots includes: pilots, copilots and flight engineers (532011); and commercial pilots (532012). [b] Eligibility based on estimated proportion of crew members (80%) meeting proposed hours of service requirement. [c] Based on a sample of CBA for Flight attendants about 35% to 40% are currently covered by an FMLA-type provision such that most are eligible to take leave (we assumed a point estimate of 37% for the calculation); for Pilots about 20% are currently covered by an FMLA-type provision such that they are eligible to take leave. [d] Flight attendants take leave at same rate as other industries (7.9%); Pilots and other crew use slightly less FMLA leave (5%). [e] Individuals taking FMLA leave average 1.5 leaves per year. tkelley on DSK3SPTVN1PROD with PROPOSALS2 In developing a proposed method to calculate FMLA-leave usage for airline flight crew employees on reserve status, the Department considered a methodology based solely on the FLSA principles of hours worked, as is typically used for employees other than airline flight crew employees. However, since the airline industry is already tracking and recording airline flight crew employees’ hours pursuant to FAA regulations, such as the flight, duty, and rest rules, the Department rejected this option. See 14 CFR pt. 91. The Department believes that imposing an FLSA ‘‘hours worked’’ methodology on the airline industry would require employers to create another 37 Table ‘‘AA Flight Attendant Block Hours and Paid Hours’’ provided by Interviewee. Rob DeLucia. 2010. Interview with Rob DeLucia of AIR Conference, Calvin Franz and Lauren Jankovic, both of ERG. Table available at URL: http:// www.aanegotiations.com/documents/ AAFACharts_7.8.10.pdf; Last accessed on March 21, 2011. 38 Based on a review of excerpts from the collective bargaining agreements of 19 airlines transmitted to the Department by Steve Schembs, Association of Flight Attendants—CWA, on January 19, 2010. 39 Rob DeLucia. 2010. Interview with Rob DeLucia of AIR Conference, Calvin Franz and Lauren Jankovic, both of ERG. Janet Zweber. 2010. Interview with Janet Zweber of U.S. Airways Pilots Association, Calvin Franz and Lauren Jankovic, both of ERG. 40 The extrapolation is used because the survey was performed relatively soon after FMLA was enacted; over time, as employee knowledge of FMLA provisions has grown, presumably so has FMLA usage. 41 CONSAD Research Corporation, December 7, 2007. VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4702 E:\FR\FM\15FEP2.SGM 15FEP2 8998 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules recordkeeping system, which would be unduly burdensome and costly for employers. As such, the Department did not quantify the cost of this alternative. D. Costs This section describes the costs associated with the proposed changes to FMLA, including: regulatory familiarization, employer and employee notices, certifications, and other costs. 1. Regulatory Familiarization In response to the proposed changes to the FMLA, each employer will need to review the changes and determine what revisions are necessary to their policies, obtain copies of the revised FMLA poster and templates for required notices and certifications, and update their handbooks or other leave-related materials to incorporate the changes (see ‘‘General Notice’’ below). This is a onetime cost to each employer, calculated as two hours at the loaded hourly wage of a Human Resources (HR) staff member in the airline industry and one hour in all other industries to complete the tasks described above. Industries other than the airline industry will need less time for this task because there is no need for them to review the components of the rule pertaining to flight crews and they are already familiar with the requirements of FMLA. The Department seeks comment on whether two hours for the airline industry and one hour for all other industries are reasonable estimates for employers to review this rule and determine what revisions may need to be made to their employment guides and practices, such as updating company policies and/or timekeeping systems. tkelley on DSK3SPTVN1PROD with PROPOSALS2 2. Employer Notices Under the FMLA, as described in § 825.300, employers are required to provide certain types of notices to employees regarding FMLA eligibility, employee rights and responsibilities, and employee usage of leave. The estimated time to complete each notice is based on the PRA contained in the final rule. 73 FR 68040. General Notice. Every covered employer must provide general notice of FMLA coverage to all employees; this notice may be provided in employee handbooks or other benefits and leave materials or as a one-time notice to new employees. For the purpose of this analysis, the cost associated with the proposed changes will be a one-time cost to each employer to update the notice provided and is included under regulatory familiarization costs above. VerDate Mar<15>2010 19:56 Feb 14, 2012 Jkt 226001 Eligibility Notice and Rights and Responsibilities Notice. An employer is required to notify an employee of their eligibility to take FMLA leave when an employee requests FMLA leave or the employer becomes aware that an employee’s leave may be for an FMLAqualifying reason. The notice must state whether or not the employee is eligible and, if not, the reason the employee is not eligible. Along with the eligibility notice, the employer must include a discussion of employee rights and obligations, amount of leave designated as FMLA, the applicable 12-month period for leave, certification requirements, and other key details. The cost of these combined notices is calculated as 10 minutes at the loaded hourly wage of an HR staff member to process each notice. Designation Notice. The employer is required to determine if leave taken by the employee for an FMLA-qualifying reason will be designated and counted as FMLA leave and provide written notice to the employee of this determination. Notice must be provided even if the employer determines that the leave will not be designated as FMLA, and only one notice is required per FMLA reason per 12-month period. The cost of this type of notice is calculated as 10 minutes at the loaded hourly wage of an HR staff member to process each notice. Certifications Under the FMLA, as described in § 825.305, employers are allowed to request certification to support an employee’s need for FMLA leave due to their own or a family member’s serious health condition, the serious injury or illness of a covered servicemember, a qualifying exigency, or to verify an employee’s fitness for duty after an absence due to their own health condition.42 The costs associated with these certifications include: Employer cost to request, review, and verify the certification and employee cost to obtain the certification from the designated authority. Medical Certification. This type of certification may be requested of employees who take FMLA leave for their own serious health condition or that of a family member and is obtained from the health care provider. This is a 42 An unknown percent of employers require employees to periodically recertify their need for FML. We have no data on the percent of employers that require certification, and believe the percent of employers that require recertification is a small percent of those that require certification. Therefore we have not attempted to estimate the number of employers that require recertification or the costs associated with it; we expect that these costs are small. PO 00000 Frm 00040 Fmt 4701 Sfmt 4702 recurring cost to both the employee and the employer for each FMLA leave event that is required to have medical certification. The cost to the employee is calculated as the cost of the visit to the health care provider completing the certification, assumed to be approximately $50 per visit.43 The cost to the employer is 30 minutes at the loaded hourly wage of an HR staff person to review and verify each certification. The proposed changes will only impact the usage of FMLA leave for the employee’s own or the employee’s family member’s serious health condition for flight crew members; for the purposes of this analysis, the additional costs of the proposed changes will only accrue to flight crew members and airline industry employers. (The cost for medical certification for military caregiver leave is discussed below.) Qualifying Exigency. Employees taking FMLA leave for a qualifying exigency may be asked to provide a copy of the relevant military orders or other documentation, and a copy of Form WH–384 ‘‘Certification of Qualifying Exigency’’ to their employers to substantiate their need for leave. This is a recurring cost to the employer for each FMLA qualifying exigency leave for which the employer requires the employee to provide certification. The cost is calculated as 20 minutes at the loaded hourly wage of an HR staff person to review and verify each certification. Military Caregiver. Employees taking FMLA military caregiver to care for a covered servicemember with a qualifying illness or injury may be asked to provide medical certification of the condition from an authorized health care provider. This is a recurring cost to both the employee and the employer for each FMLA military caregiver leave event that is required to have medical certification. The cost to the employee is calculated as the cost of the visit to the health care provider completing the certification, assumed to be approximately $50 per visit.44 The cost to the employer is 30 minutes at the loaded hourly wage of an HR staff person to review and verify each certification. For the purposes of this analysis, these costs accrue to employees taking FMLA military caregiver to care for a covered veteran with a qualifying illness or injury and their employers. Fitness for Duty. For certain occupations, employers may desire certification from a medical professional that an employee is well enough to 43 CONSAD, 44 CONSAD, E:\FR\FM\15FEP2.SGM December 2007. December 2007. 15FEP2 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS2 fulfill their duties following an FMLA leave for the employee’s own serious health condition. Under prescribed circumstances, an employer may request a fitness-for-duty certification. The cost to the employee is calculated as the cost of the visit to the health care provider completing the certification, assumed to be approximately $50 per visit.45 The cost to the employer is 30 minutes at the loaded hourly wage of an HR staff person to review and verify each certification. For the purposes of this analysis, the additional costs of the proposed changes will only accrue to flight crew members and airline industry employers. 3. Other Employer Costs The FMLA includes employer recordkeeping requirements but those costs are not addressed here because the proposed changes do not affect the type of records the employer is required to keep nor the amount of time they must keep them. Employers must continue to keep and maintain records under the proposed changes as they are required to do so under the current regulations. Additionally, while the proposed rule does newly cover airline flight crew employees, the Department expects that employers in the airline industry have already been tracking non-flight crew employees’ hours to comply with the FMLA. Covered airlines must currently comply with FMLA with respect to employees, such as ticketing agents, baggage handlers, and administrative personnel. As such, the Department does not expect the proposed rule to create any additional recordkeeping burdens on airline employers. a. Employee Health Benefits. Employers are required by FMLA to maintain employee benefits during their absence on FMLA leave. This is a recurring cost to each employer that is calculated as the cost per hour to cover employee health benefits multiplied by the total number of hours of FMLA leave taken. This cost results from additional reasons an employee may take FMLA leave (qualifying exigency, military caregiver), and additional employees entitled to leave (airline flight crew employees). The Department estimated this cost as part of the 2008 final rule and is using the same methodology here, noting that ‘‘the marginal costs related to workers taking * * * military family leave * * * result from the cost of providing health insurance during the period the worker is on leave * * *. The Department believes these * * * costs are reasonable proxies for the opportunity 45 CONSAD, VerDate Mar<15>2010 December 2007. 17:24 Feb 14, 2012 Jkt 226001 cost of the NDAA provisions, since health insurance coverage represents the marginal compensation an employer is still required to cover under the FMLA when a worker is absent.’’ 73 FR 68051. According to the BLS ‘‘Employer Costs for Employee Compensation Survey’’ of June 2008, employers spend an average of $2.25 per employee per hour worked on health insurance coverage.46 b. Replacement Workers. 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 skill sets, 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. 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. As in previous rulemakings, the Department is requesting information from businesses on the impact of different strategies for compensating for workers on leave, particularly the extent to which work is redistributed among other workers, and the costs of recruiting and training temporary workers. For the purpose of this analysis, we will continue to assume that these costs are fairly small; furthermore, most employers subject to this rule change have been implementing FMLA for some time and have already developed internal systems for work redistribution and recruitment and training of temporary workers. The air transportation industry, however, is an exception to this reasoning and employers in this industry may face additional challenges with respect to scheduling. Due to the nature of the industry, airlines have varied and complex approaches to scheduling airline flight crew employees for flights.47 Based on seniority, these employees may bid on their desired domicile (i.e., primary airport), equipment (i.e., type of airplane), and flying schedule (e.g., 46 BLS Employment Cost Trends, URL: http:// www.bls.gov/ncs/ect/. Accessed on 09–29–2010. 47 This discussion is highly generalized and may not represent the practices of a specific airline. The purpose of the discussion is to provide context for understanding the impact of FMLA leave on overall scheduling practices. PO 00000 Frm 00041 Fmt 4701 Sfmt 4702 8999 international, shuttle). Generally, the employees can bid a ‘‘line of flying’’ or a ‘‘block’’ of flights or may bid on a number of days on reserve. According to our interviewees, approximately 15–20 percent of employees may be on reserve at any point in time and this amount fluctuates by airline and demand.48 There are different types of reserve that are loosely based on the proximity of the employee to the airport; an employee on ‘‘short call’’ may be required to arrive at the domicile within 90 minutes, while an employee on ‘‘long call’’ may be given 9 hours notice to arrive at the domicile for a flight. Overall, the scheduling is fairly flexible in order to manage schedule changes; for example, ‘‘block holders’’ can be rescheduled to cover additional flights, flight attendants can engage in ‘‘trip trading’’ or volunteer for open flying time, and airlines can use ‘‘dead heading’’ to fly in a crew from another airport. There are several key limitations to the flexibility of the system; the primary one being regulatory limits on flying time and equipment. This limitation is the most stringent for pilots who have more restrictive limitations on flying time than other flight crew members and who may only fly specific types of aircraft. Additionally, schedule changes due to events such as severe weather can impact scheduling; reserve flight crew members are utilized to make up for cancelled and rescheduled flights. At this point, it is not clear if the AFCTCA will impose a significant cost on air transportation employers, nor the potential magnitude of the cost. The Department believes that the rule will increase the number of flight crew leaves classified as FMLA, but may not necessarily increase the absolute number of leaves taken by these workers. 4. Regulatory Impacts This section draws on the estimates of potentially affected employees, and the unit costs discussed above to determine the anticipated impact of the proposed regulations in terms of total cost across all industries as well as estimated cost per firm and per employee. a. Projected Regulatory Cost The total estimated impact of the proposed changes is $72.4 million in the first year with $59.8 million in recurring costs in subsequent years. Table 5–1 summarizes the total estimated costs of the proposed changes to FMLA by cost 48 Rob DeLucia. 2010. Interview with Rob DeLucia of AIR Conference, Calvin Franz and Lauren Jankovic, both of ERG. E:\FR\FM\15FEP2.SGM 15FEP2 9000 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules type (first year, recurring), amendment (flight crew, military caregiver), and regulatory requirement (familiarization, notices, certifications, benefits). TABLE 5–1—SUMMARY OF IMPACT OF PROPOSED CHANGES TO FMLA Year 1 ($1000) Component Total ................................................................................................................................................................. By Amendment . . . Any FMLA revision ................................................................................................................................... Flight Crew Technical Amendment .......................................................................................................... NDAA 2010 ............................................................................................................................................... Qualifying Exigency ........................................................................................................................... Military Caregiver .............................................................................................................................. By Requirement . . . Regulatory Familiarization ........................................................................................................................ Employer Notices ..................................................................................................................................... Certifications ............................................................................................................................................. Health Benefits ......................................................................................................................................... Year 2 ($1000) $72,398 $59,791 12,607 372 59,419 25,832 33,587 0 372 59,419 25,832 33,587 12,607 26,851 722 32,218 0 26,851 722 32,218 [a] Columns may not sum due to rounding. All covered employers will incur costs of $12.6 million during the first year for regulatory familiarization associated with any new FMLA revision. Other than the initial regulatory familiarization costs that occur in the first year, all other costs are annual costs; they occur in the first year, and in each subsequent year. Covered employers in the air transportation industry who are not already providing family and medical leave to flight crew employees will incur costs of about $372 thousand per year to implement the changes. Covered employers of workers eligible for military family leave will incur costs of about $59.4 million per year as a result of the proposed changes. Looking at the key requirements of FMLA, most of the costs of the proposed changes will stem from generation of employer notices and maintenance of health benefits in recurring years. To facilitate the public’s understanding of the impact of this proposed rule, the Department provides some alternative assumptions on the utilization of leave and corresponding costs. However, due to the lack of reliable data on which to base alternative assumptions, we do not include these ranges in the summary analysis. The Department estimates the cost of the NDAA as $59.4 million, with qualifying exigency leave costing $25.8 million and military caregiver leave costing $33.6 million. However, under different scenarios, the cost of the NDAA may increase or decrease. The cost of qualifying exigency leave will vary between $2.6 million and $54.6 million in times of low conflict and high conflict.49 As a result, the cost of the NDAA will vary from $36.2 million in low conflict times and $88.2 million in high conflict times. The cost of qualifying exigency leave may also change if leave taken for Rest and Recuperation is closer to 5 days or 15 days. Under this scenario, the cost of qualifying exigency leave might range from $23.1 million to $28.6 million, and, thus, the total cost of the NDAA will range from $56.6 million to $62.1 million. Similarly, if the definition of serious injury or illness was set only to include disability ratings of 60% or greater (i.e., was more stringent), or alternatively to include more ratings of 30% or greater (i.e., was more inclusive), then the cost of military caregiver leave would range from $29.8 million to $44.9 million. As a result, the total cost of the NDAA would vary between $55.7 million and $70.7 million. Table 5–2 provides the total, net present value and average annualized projected compliance costs over 10 years. Average annualized costs take the entire stream of costs over 10 years, including both first-year costs that are only incurred once, and recurring costs that are incurred every year, and converts them into a stream of equal annual payments with a net present value equal to the original stream of time-varying costs at the specified real discount rate. Calculating annualized costs allows the examination of an appropriate measure of average costs (by accounting for the time-value of money) over time without overestimating impacts by focusing on initial costs, or underestimating impacts by focusing solely on recurring costs. The OMB directs that the streams of costs and benefits should be discounted using a 7 percent real discount rate; we also include the three percent real discount rate for reference. TABLE 5–2—AVERAGE ANNUALIZED COSTS BY AMENDMENT AND REQUIREMENT Annualized ($1000) [a] Total ($1000) tkelley on DSK3SPTVN1PROD with PROPOSALS2 Component Total ............................................................................................................................................. Real discount rate 3% ($1000) $610,517 49 In addition, no deployments take place in 16 of the 48 years of data examined (33.3 percent), and costs associated with qualifying exigency leave for deployment would be zero in those years. Low levels of conflict occurred in 18 of 48 years (37.5 percent) and high levels of conflict took place in 14 of 48 years (29.2 percent). VerDate Mar<15>2010 20:46 Feb 14, 2012 Jkt 226001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4702 E:\FR\FM\15FEP2.SGM 15FEP2 $61,226 Real discount rate 7% ($1000) $61,469 9001 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules TABLE 5–2—AVERAGE ANNUALIZED COSTS BY AMENDMENT AND REQUIREMENT—Continued Annualized ($1000) [a] Total ($1000) Component By Amendment . . . Any FMLA revision ............................................................................................................... Flight Crew Technical Amendment ...................................................................................... NDAA 2010 ........................................................................................................................... Qualifying Exigency ....................................................................................................... Military Caregiver .......................................................................................................... By Requirement . . . Regulatory Familiarization .................................................................................................... Employer Notices ................................................................................................................. Certifications ......................................................................................................................... Health Benefits ..................................................................................................................... Real discount rate 3% ($1000) Real discount rate 7% ($1000) 12,607 3,720 594,190 258,323 335,868 1,435 372 59,419 25,832 33,587 1,678 372 59,419 25,832 33,587 12,607 268,509 7,221 322,181 1,435 26,851 722 32,218 1,678 26,851 722 32,218 [a] Columns may not sum due to rounding. The results presented in the table show that the proposed changes are projected to cost an average of $61.4 million per year over 10 years using a 7 percent real discount rate. With respect to the proposed amendments to the rule, the military family leave provisions (FY 2010 NDAA) account for about 96.7 percent of the total annualized cost. In terms of requirements of the rule, employer notices and maintenance of health benefits each account for about 44 and 52 percent of the total cost, respectively. b. Impacts of Projected Cost In this section we review the impact of projected regulatory costs on business income. To avoid misrepresenting impacts, they are presented in four different ways: First year costs are the largest, thus the ratio of first-year costs to income (business and worker) represent the most severe impacts that might be incurred in any one year; the ratio of recurring costs to income are more typical impacts—those that can be expected in any year except the first year; finally, average annualized costs, as described above reflect the overall average over 10 years. Table 5–3 presents the impact of the projected costs on firm income and payroll with respect to first year and recurring costs; the impacts are disaggregated by proposed amendment and regulatory requirement. The projected first year costs of the proposed rule are about $190 per firm, which is less than one-hundredth of a percent of average annual revenues and payroll. For most firms, the military family leave provisions account for the largest part of this impact, at $156 per firm. With the exception of regulatory familiarization, first year costs for employer notices, certifications, and the maintenance of health benefits are identical to the amounts incurred in each subsequent year. The cost of the flight crew technical amendments may be a small portion of overall first year costs, but the impact will be concentrated on the air transportation industry. As a result, the cost per firm is $1,016, which is less than one-hundredth of a percent of average annual revenues and payroll. The impact of the recurring costs will be about $157 per firm; the military family leave provisions continue to be the driver of the size of the impact due to the cost of employer notices and maintenance of employee health benefits associated with the requirement. TABLE 5–3—IMPACT OF COMPLIANCE COSTS ON FIRM INCOME Costs Component tkelley on DSK3SPTVN1PROD with PROPOSALS2 VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 PO 00000 Frm 00043 Fmt 4701 Cost per firm as percent of revenues Cost per firm [a] Total cost First Year Cost ................................................................................. By Amendment . . . Any FMLA revision ................................................................... Flight Crew Technical Amendment .......................................... NDAA 2010 ............................................................................... By Requirement . . . Regulatory Familiarization ........................................................ Employer Notices ..................................................................... Certifications ............................................................................. Health Benefits ......................................................................... Recurring Cost ................................................................................. By Amendment . . . Any FMLA revision ................................................................... Flight Crew Technical Amendment .......................................... NDAA 2010 ............................................................................... By Requirement . . . Regulatory Familiarization ........................................................ Employer Notices ..................................................................... Certifications ............................................................................. Health Benefits ......................................................................... Projected impacts Cost per firm as a percent of annual payroll $72,398 $190 0.0003 0.0015 12,607 372 59,419 33 1,016 156 0.0001 0.0004 0.0003 0.0003 0.0014 0.0012 12,607 26,851 722 32,218 59,791 33 71 2 85 157 0.0001 0.0001 0.0000 0.0001 0.0003 0.0003 0.0005 0.0000 0.0006 0.0012 0 372 59,419 0 1,016 156 0.0000 0.0004 0.0003 0.0000 0.0014 0.0012 0 26,851 722 32,218 0 71 2 85 0.0000 0.0001 0.0000 0.0001 0.0000 0.0005 0.0000 0.0006 Sfmt 4702 E:\FR\FM\15FEP2.SGM 15FEP2 9002 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules TABLE 5–3—IMPACT OF COMPLIANCE COSTS ON FIRM INCOME—Continued Costs Component Cost per firm as percent of revenues Cost per firm [a] Total cost 7% Real Discount Rate ................................................................... By Amendment . . . Any FMLA revision ................................................................... Flight Crew Technical Amendment .......................................... NDAA 2010 ............................................................................... By Requirement . . . Regulatory Familiarization ........................................................ Employer Notices ..................................................................... Certifications ............................................................................. Health Benefits ......................................................................... Projected impacts Cost per firm as a percent of annual payroll 61,469 161 0.0003 0.0013 1,677 372 59,419 4 1,016 156 0.0000 0.0004 0.0003 0.0000 0.0014 0.0012 1,677 26,851 722 32,218 4 71 2 85 0.0000 0.0001 0.0000 0.0001 0.0000 0.0005 0.0000 0.0007 [a] Calculated as total cost divided by the number of affected firms. For example, first year NDAA cost per firm is $59 million divided by 381 thousand firms and first year cost per firm for the flight crew technical amendment is $372 thousand divided by 366 firms. tkelley on DSK3SPTVN1PROD with PROPOSALS2 Table 5–3 also presents the impact of projected costs on firm and worker income for average annualized costs with a 7 percent real discount rate. The results demonstrate that the overall average annualized cost of the rule is $61.5 million, or about $161 per firm ($1,016 per firm in the air transportation industry). Finally, the impacts presented in Tables 5–3 also show the costs per firm as a percent of firm resources. The Department estimated impacts as the national costs of the rule divided by the number of affected firms (including government entities). The total cost per firm of $161 based on the total annualized cost at a 7 percent discount rate composes approximately 3 tenthousandths of 1 percent of average annual firm revenue. However, it is likely that some of these costs will be borne by the firm and some by the workers; the exact incidence of these impacts will depend on the relative bargaining strength of firms and workers which will vary by industry. C. Benefits The Department anticipates significant benefits resulting from the proposed revisions. Employers that have adopted flexible workplace practices cite many economic benefits such as reduced worker absenteeism and turnover, improvements in their ability to attract and retain workers, and other positive changes that translate into increased worker productivity. ‘‘WorkLife Balance and the Economics of Workplace Flexibility’’ at 16, Executive Office of the President, Council of Economic Advisors (March 2010). However, quantifying the benefits is challenging. Id. The Department does not attempt to quantify these benefits in this analysis, but does, however, describe the expected benefits of each VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 [T]he families of servicemembers will no longer have to worry about losing their jobs or health insurance due to absences to care for a covered seriously injured or ill servicemember or due to a qualifying exigency resulting from active duty or call to active duty in support of a contingency operation. 73 FR 68069. Based on the preceding analysis, and the availability of recent research examining the impacts of service-connected injuries and illnesses, the Department also anticipates additional benefits to accrue to servicemembers and their families from the FY 2010 NDAA amendments. Providing job-protected leave for caregivers of covered veterans under the military caregiver provision is expected to have several benefits, including increased family involvement in recovery, improved self-reliance and access to resources for caregivers, and a reduction in negative outcomes for covered veterans and their families. Recent research suggests that as many as 30 percent of returning servicemembers may suffer from symptoms of PTSD, major depression, and/or traumatic brain injury. These individuals often suffer from: ■ Co-morbitities such as anxiety and mood disorders, and substance abuse, ■ Increased risk of suicidal ideation and attempts; ■ Higher rates of unhealthy behaviors such as smoking, poor diet, and unsafe sex; ■ Higher rates of other health problems and mortality; and ■ Decreased work productivity in the form of missed work days and decreased performance at work.50 While this study focused on active servicemembers, these disorders involve long timeframes for recovery and management of the symptoms so it is reasonable to conclude that these same issues would impact the servicemember following separation from service. Furthermore, the impact of these disorders, and other serious injuries or illnesses incurred by covered servicemembers and veterans, extends to family members as well. Common issues include marital discord and increased likelihood of divorce, intimate partner violence, poor parenting skills and poor child outcomes, and caregiver burden. In ‘‘Economic Impact on Caregivers of the Seriously Wounded, Ill, and Injured,’’ the authors describe the impact on caregivers as follows: Family support is critical to patients’ successful rehabilitation. Especially in a prolonged recovery, it is family members who make therapy appointments and ensure they are kept, drive the servicemember to these appointments, pick up medications and make sure they are taken, provide a wide range of personal care, become the impassioned advocates, take care of the kids, pay the bills and negotiate with the benefits offices, find suitable housing for a family that includes a person with a disability, provide emotional support, and, in short, find they have a full-time job—or more—for which they never prepared. When family members give up jobs to become caregivers, income can drop precipitously.51 major revision in the proceeding section. 1. Military Family Leave The benefits stemming from improving access to military leave for military family members were described in the 2008 final rule as follows: PO 00000 Frm 00044 Fmt 4701 Sfmt 4702 50 Tanielian, Terri and Lisa Jaycox. 2008. Invisible wounds of war: psychological and cognitive injuries, their consequences, and services to assist recovery. RAND. Available for download at URL: www.rand.org 51 Christensen, et. al., April 2009, Economic Impact on Caregivers of the Seriously Wounded, Ill, and Injured, CNA, p. 8. E:\FR\FM\15FEP2.SGM 15FEP2 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules The support provided by caregivers plays a pivotal role in the course of the servicemember’s recovery, as noted in ‘‘Invisible Wounds of War’’: The likelihood that the condition will trigger a negative cascade of consequences over time is greater if the initial symptoms of the condition are more severe and the afflicted individual has other sources of vulnerability * * * Early interventions are likely to pay long-term dividends in improved outcomes for years to come; so, it is critical to help servicemembers and veterans seek and receive treatment.52 Providing caregivers with jobprotected FMLA leave to care for their family member who is a covered veteran creates a window of opportunity to interrupt the negative cascade of consequences experienced by sufferers of PTSD, TBI and depression. Furthermore, maintaining the flow of resources and self-sufficiency provided by a secure employment situation ensures that the caregivers are able to maintain their own mental and physical health during the veteran’s recovery process.53 At this point, there is not sufficient data to accurately estimate the number of servicemembers suffering from these disorders or the range of severity of symptoms; as a result, we are unable to quantify the benefits of reduced rates of negative outcomes for affected veterans and their families. However, in ‘‘Invisible Wounds of War,’’ RAND developed estimates of costs associated with PTSD, major depression, and TBI stemming from the conflicts in Afghanistan and Iraq. For example: ■ Servicemembers diagnosed with PTSD incur costs of $5,000–10,000 per servicemember during the first two years after returning home.54 ■ Servicemembers diagnosed with major depression incur costs of $15,000—25,000 per servicemember during the first two years after returning home.55 ■ Servicemembers diagnosed with TBI incur costs of $27,000 to 32,000 for a mild case up to $268,000 to 408,000 for severe cases.56 The proposed regulatory change will likely reduce these costs, and the costs associated with other negative outcomes associated with these diagnoses; but, at this point in time we do not have tkelley on DSK3SPTVN1PROD with PROPOSALS2 52 Tanielian and Jaycox, 2008. et. al., 2009, p.9. 54 RAND, 2008, p. xxiii. Variation due to severity and inclusion, or not, of cost of lives lost to suicide. Costs do not include costs due to substance abuse, domestic violence, homelessness, or family strain. 55 RAND, 2008, p. xxiii. Costs associated with comorbid PTSD and depression are approximately $12,000 to 16,000. 56 RAND, 2008, p. xxiii. Costs presented in 2007 dollars. 53 Christensen, VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 sufficient data to estimate the reduction in costs. 2. Airline Industry FMLA Leave As a result of the proposed changes airline flight crew employees will enjoy all the benefits of FMLA coverage that have been afforded to employees in other industries. Additionally, as discussed in the 2008 final rule, employers may see reduced ‘‘presenteeism’’—the loss of productivity due to employees working while injured or ill—and a resultant increase in overall productivity, workplace safety, and wellness among employees. 73 FR 68071. VI. Small Business Regulatory Enforcement Fairness Act; Regulatory Flexibility This section describes the analysis of impacts on small entities of the proposed rule. The Regulatory Flexibility Act of 1980 (RFA) requires agencies to prepare regulatory flexibility analyses and make them available for public comment when proposing regulations that will have a significant economic impact on a substantial number of small entities. See 5 U.S.C. 603. 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 an Initial Regulatory Flexibility Analysis under the RFA is not required for this rulemaking. The FMLA covers private employers of 50 or more employees; employers with fewer than 50 employees are exempt. Moreover, Congress defined, for the purpose of the FMLA, a small business to be one with fewer than 50 employees. Therefore, changes to the FMLA regulations by definition will not impact small businesses.57 However, in the interest of transparency and to provide an opportunity for public comment, the Department has prepared the following analysis to assess the impact of this regulation on small entities (as defined by the applicable SBA size standards). The Chief Counsel for Advocacy of the Small Business Administration was notified of a draft of this rule upon submission of the rule to the Office of Management and Budget under E.O. 12866. The Small Business Administration size standard is 500 employees, therefore employers with 50 to 500 57 SBA Office of Advocacy: A Guide for Governmental Agencies—How to Comply with the Regulatory Flexibility Act. June 2010. http:// www.sba.gov/sites/default/files/rfaguide.pdf. PO 00000 Frm 00045 Fmt 4701 Sfmt 4702 9003 employees will be affected by this regulation. Coverage under the FMLA is limited to an estimated 314,752 small employers with 50 to 500 employees. This rule is estimated to cost an average of $190 per firm in the first year, and an average of $157 per firm each year thereafter. See Table 5–3. Therefore, this regulation will not have a significant economic impact on any of these small entities. The Department certifies this NPRM is not likely to have a significant economic impact on a substantial number of small entities, and, accordingly, a regulatory flexibility analysis is not required by the RFA. 1. Number of Small Entities The RFA defines a ‘‘small entity’’ as a: (1) Small not-for-profit organization, (2) small governmental jurisdiction, or (3) small business. The Department relied upon standards defined by the Small Business Administration (SBA) to identify firms and governments classified as small. For the purposes of this rulemaking effort, we did not attempt to analyze not-for-profit organizations other than as they appear in the BLS QCEW data used as the basis for the analysis (e.g., not-for-profit hospitals); the estimation of such notfor-profits is therefore included in the estimation of other small firms as described below. This analysis focuses solely on the costs and impacts of the proposed regulations on small entities and draws on the industry profile described in the E.O. 12866 analysis of this preamble. The Department assumed all firms with fewer than 500 employees are small. A small governmental jurisdiction is defined as the government of a city, county, town, township, village, school district, or special district with a population of less than 50,000. The Department used the field specifying the population of the governmental jurisdiction in the Census of Governments to determine the number of government entities considered small for RFA purposes. All State governments were assumed to be large for RFA purposes. Applying these size assumptions to the universe of potentially affected firms (Tables 6–1A) we estimate that 83 percent of entities, about 315,000 impacted by the proposed rule meet SBA’s criteria for a small entity. Of those, 251,000 are private sector businesses employing about 57 percent of all workers and earning about 57 percent of estimated revenues. The remaining 63,600 are small government entities employing about 11 percent of workers and accruing about 5 percent of all estimated revenues. About 17 E:\FR\FM\15FEP2.SGM 15FEP2 9004 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules percent of private businesses and government agencies are non-small for RFA purposes. These entities employ more than 32 percent of workers, pay 64 percent of wages, and earn 39 percent of annual revenues. TABLE 6–1A—COVERED FIRMS AND WORKERS BY SBA SIZE STANDARDS Industry Number and percent of establishments Number and percent of employment Small Private ............................................................................................... Government ...................................................................................... 1,051,716 127,235 84 10 52,113,983 10,085,977 57 11 251,134 63,617 66 17 1,178,951 94 62,199,960 68 314,751 83 16,436 52,717 1 4 19,646,940 9,299,992 22 10 40,025 25,909 11 7 69,153 6 28,946,932 32 65,934 18 Subtotal ..................................................................................... Non Small Private ............................................................................................... Government ...................................................................................... Number and percent of firms Subtotal ..................................................................................... Total Private ............................................................................................... Government ...................................................................................... 1,068,152 179,952 86 14 71,760,923 19,385,969 79 21 291,159 89,526 76 24 Total ........................................................................................... 1,248,104 100 91,146,892 100 380,685 100 Industry Annual Payroll ($mil.) and percent of total Estimated 2008 revenues ($mil.) and percent of total Estimated 2008 net income ($mil.) and percent of total Small Private ............................................................................................... Government ...................................................................................... $1,375,524 395,610 28 8 $13,423,633 1,092,309 57 5 $304,497 26,180 30 3 Subtotal ..................................................................................... Non Small Private ............................................................................................... Government ...................................................................................... 1,771,134 36 14,515,943 61 330,677 32 2,823,743 374,268 57 8 6,763,222 2,444,202 29 10 319,226 375,124 31 37 Subtotal ..................................................................................... Total Private ............................................................................................... Government ...................................................................................... 3,198,011 64 9,207,424 39 694,349 68 4,199,267 769,878 85 15 20,186,856 3,536,511 85 15 623,723 401,304 61 39 Total ........................................................................................... 4,969,145 100 23,723,367 100 1,025,0267 100 Table 6–1B presents the number of affected entities for the air transportation industry. While 63 percent of firms are small by SBA standards, the 37 percent of firms that are not small account for 75 percent of establishments, 95 percent of employees and payroll, 96 percent of revenues and 99 percent of net income. TABLE 6–1B—AIR TRANSPORTATION INDUSTRY (NAICS 481) COVERED FIRMS AND WORKERS BY SBA STANDARDS Number and percent of establishments Industry Number and percent employment Small ........................................................................................................ Non Small ................................................................................................ 728 2,204 25 75 25,004 506,796 5 95 Total .................................................................................................. 2,932 100 531,800 100 Number and percent of firms 231 135 366 63 37 100 TABLE 6–1B-CONTINUED—PAYROLL, REVENUE, AND INCOME OF AIR TRANSPORTATION INDUSTRY COVERED FIRMS BY SBA SIZE STANDARDS Annual payroll ($mil.) and percent of total tkelley on DSK3SPTVN1PROD with PROPOSALS2 Industry Estimated revenues ($mil.) and percent of total Estimated net income ($mil.) and percent of total Small ........................................................................................................ Non Small ................................................................................................ $1,185 24,905 5 95 $4,321 98,496 4 96 $38 3,188 1 99 Total .................................................................................................. 26,090 100 102,817 100 3,226 100 VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4702 E:\FR\FM\15FEP2.SGM 15FEP2 9005 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules (both business and government) potentially affected by the proposed rule 83 percent are small for the purposes of the RFA. See Table 6–1A. They are projected to incur about 71 percent of first-year costs, 68 percent of recurring costs, and 68 percent of average 2. Cost to Small Entities Table 6–2A summarizes estimated first-year, recurring, and annualized compliance costs attributable to the proposed rule for both small and nonsmall businesses. Among all entities annualized costs. See Table 6–2A. In the air transportation industry, small entities account for 8 percent of firstyear costs, 5 percent of recurring costs, and 5 percent of average annualized costs although they compose 63 percent of firms. See Table 6–2B. TABLE 6–2A—COMPLIANCE COSTS BY BUSINESS SIZE [a] First year ($1000) and percent of total Industry Small Private ............................................................................................... Government ...................................................................................... Recurring ($1000) and percent of total Annualized ($1000) and percent of total $40,716 9,994 56 14 $33,981 6,585 57 11 $34,877 7,039 57 11 Subtotal ..................................................................................... Non Small Private ............................................................................................... Government ...................................................................................... 50,709 70 40,566 68 41,916 68 14,048 7,652 19 11 12,972 6,264 22 10 13,116 6,449 21 11 Subtotal ..................................................................................... Total Private ............................................................................................... Government ...................................................................................... 21,689 30 19,225 32 19,553 32 54,764 17,646 76 24 46,954 12,849 79 22 47,993 13,487 78 22 Total ........................................................................................... 72,398 100 59,791 100 61,469 100 [a] Column totals may not sum due to rounding. TABLE 6–2B—AIR TRANSPORTATION INDUSTRY (NAICS 481) COMPLIANCE COSTS BY BUSINESS SIZE First year and percent of total ($1000) Industry Recurring and percent of total ($1000) Annualized and percent of total ($1000) Small ........................................................................................................ Non Small ................................................................................................ $30 362 8 92 $17 355 5 95 $19 355 5 95 Total .................................................................................................. 392 100 372 100 375 100 Small entities constitute the substantial majority of affected entities and are projected to incur the majority of compliance costs; however, they do not bear a disproportionate share of projected costs, nor will those costs result in a significant economic impact on those small entities. First-year costs of the rule are the largest costs incurred by all entities, but these average less than $200 for small firms in the private sector and for small government entities. See Table 6–3A. Estimated compliance costs per firm for small firms do not compose a higher percentage of firm revenues than for large firms, and in no case does that cost exceed 0.01 percent of firm revenues. For small air transportation firms, the cost per firm is smaller than the overall average (see Table 6–3B); for non-small firms, cost per firm is larger than the overall average, but still composes one ten-thousandth of a percent of annual revenues. TABLE 6–3A—COMPLIANCE COSTS PRESENTED AS COST PER FIRM AND COST AS A PERCENT OF FIRM INCOME, BY SBA SIZE STANDARDS First year Industry tkelley on DSK3SPTVN1PROD with PROPOSALS2 Cost per firm Small Private ............................................... Government ...................................... Subtotal ...................................... Non Small Private ............................................... Government ...................................... Subtotal ...................................... Total Private ............................................... Government ...................................... VerDate Mar<15>2010 19:56 Feb 14, 2012 Jkt 226001 Recurring Cost as percent of income Cost per firm Annualized Cost as percent of income Cost per firm Cost as percent of income $162 157 161 $135 104 129 0.00000 0.00000 0.00000 $139 111 133 0.00000 0.00000 0.00000 351 295 329 0.00000 0.00000 0.00000 324 242 292 0.00000 0.00000 0.00000 328 249 297 0.00000 0.00000 0.00000 188 197 PO 00000 0.00000 0.00001 0.00000 0.00000 0.00000 161 144 0.00000 0.00000 165 151 0.00000 0.00000 Frm 00047 Fmt 4701 Sfmt 4702 E:\FR\FM\15FEP2.SGM 15FEP2 9006 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules TABLE 6–3A—COMPLIANCE COSTS PRESENTED AS COST PER FIRM AND COST AS A PERCENT OF FIRM INCOME, BY SBA SIZE STANDARDS—Continued First year Industry Cost per firm Total ........................................... Recurring Cost as percent of income 190 Cost per firm 0.00000 Annualized Cost as percent of income 157 0.00000 Cost per firm Cost as percent of income 161 0.00000 TABLE 6–3B—COMPLIANCE COSTS TO AIR TRANSPORTATION PRESENTED AS COST PER FIRM AND COST AS A PERCENT OF FIRM INCOME, BY SBA SIZE STANDARDS First year Industry Cost per firm Small ........................................................ Non Small ................................................ Total .................................................. $129 2,674 1,070 tkelley on DSK3SPTVN1PROD with PROPOSALS2 In summary, although the potential impacts of the proposed rule are larger for small firms when measured as the absolute cost per firm or employee, or as a percent of firm revenues or employee wages, small firms do not bear a disproportionate burden under this rule. Therefore, the Department believes that the proposed rule will not have a significant economic impact on a substantial number of small entities. Furthermore, as noted above, Congress defined ‘‘small business’’ for the purpose of the FMLA as one employing fewer than 50 employees and the proposed regulation therefore, by definition, does not impact small entities. However, using SBA’s size standard of 500 employees to define ‘‘small business’’, an estimated 314,752 employers with 50 to 500 employees are covered by the FMLA, this rule is only estimated to cost an average of $161 per small firm in the first year, and an average of $129 per small firm each year thereafter. This regulation will not have a significant economic impact on any of these small entities. Therefore, the Department has determined and certified that this rule will not have a significant economic impact on a substantial number of small entities. Appendix A: Military Family Leave Profile In order to estimate the number of individuals who may take leave under the qualifying exigency or military caregiver provisions as a result of the 58 CONSAD VerDate Mar<15>2010 2007. Appendix A. 19:56 Feb 14, 2012 Recurring Cost as percent of income Cost per firm 0.0003 0.0001 0.0000 Cost as percent of income $76 2,621 1,016 proposed changes, the Department estimated (1) the number of active duty servicemembers whose family members are entitled to qualifying exigency leave and the number of veterans whose family members will be entitled to caregiver leave, (2) the age profile of those servicemembers and veterans, and (3) the number of eligible family members or caregivers associated with that age profile. The first estimate is described earlier in this preamble. This appendix provides an explanation of the method used to develop the age profiles and eligible family members. 0.0002 0.0001 0.0000 The Department attempted to replicate the method used in the CONSAD 2007 report to ensure consistency with previous estimates.58 In that report, CONSAD used data from the Defense Manpower Database, the Current Population Survey, and the decennial Census of Population to estimate the age distribution of servicemembers; the proportion of servicemembers in each age category with living parents, a spouse, and children (over 18 years of age); 59 and the proportion of those individuals who may be employed by a covered employer. The Department used these estimates to determine the likely number of family members eligible to take leave for a qualifying exigency or to act as a caregiver for a covered veteran. PO 00000 Frm 00048 Fmt 4701 Sfmt 4702 Cost per firm $83 2,628 1,023 Cost as percent of income 0.0002 0.0001 0.0000 The first step is to apply the age profile of servicemembers to the estimated number of servicemembers to distribute the number of servicemembers to the age groups. Table A–1 presents the estimated proportion of servicemembers by age range estimated by CONSAD. The Department aggregated the age groups for this calculation. For example, if the proposed rule was expected to affect 100 servicemembers then this age profile would estimate that 47 of them would be between the ages of 22 and 30 years old. Overview of Approach 59 Under military caregiver leave a designated ‘‘next of kin’’ may also take leave to care for a covered veteran. We accounted for these Jkt 226001 Annualized TABLE A–1—AGE PROFILE OF SERVICEMEMBERS General military servicemember age range 18–21 22–30 31–40 41–50 51–59 .................................... .................................... .................................... .................................... .................................... Average estimated proportion of military members (percent) 19.9 47.0 24.8 8.0 0.6 The next step is to estimate the number of servicemembers in each age group with 0, 1, 2, 3, 4, or 5 eligible family members. Table A–2 presents the estimated number of eligible family members by age range of the servicemember. individuals by assuming that every covered veteran has at least one caregiver. E:\FR\FM\15FEP2.SGM 15FEP2 9007 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules TABLE A–2—PROPORTION OF SERVICEMEMBERS WITH ‘‘N’’ ELIGIBLE FAMILY MEMBERS Proportion of servicemembers with n eligible family members, where n = General military servicemember age range 18–21 22–30 31–40 41–50 51–59 0 (%) ....................................................... ....................................................... ....................................................... ....................................................... ....................................................... 1 (%) 29.32 27.38 31.08 37.78 45.25 Finally, the number of estimated eligible family members for each age group of servicemembers is summed up by multiplying the number of servicemembers in each column by the number of eligible family members. For example, for each age group the calculation is (# × 0) + (# × 1) + (# × 2) + (# × 3) + (# × 4) + (# × 5). Next, the total number of eligible family members 2 (%) 49.5 46.5 44.1 40.4 35.4 3 (%) 21.0 23.3 21.1 16.9 14.6 is summed across the age groups to estimate the total number of eligible family members. The following sections illustrate this method for the calculation of the number of eligible family members who may take qualifying exigency leave, and the number of eligible family members who may take leave to act as a military caregiver for a covered veteran. 4 (%) 5 (%) 0.2 2.8 3.6 4.2 3.9 0.0 0.0 0.2 0.7 0.7 0.0 0.0 0.2 0.1 0.1 Qualifying Exigency Leaves Table A–3 presents the calculation of the projected number of servicemembers in each age category based on the estimated average number of covered military members and age profile of military members. TABLE A–3—ESTIMATED AGE PROFILE OF SERVICEMEMBERS ON COVERED ACTIVE DUTY Total average number of military members General military servicemember age range 18–21 22–30 31–40 41–50 51–59 Average estimated proportion of military members by age range (percent) Projected number of servicemembers on covered active duty per year 197,000 197,000 197,000 197,000 197,000 19.9 47.0 24.8 8.0 0.6 39,203 92,590 48,856 15,760 1,182 ......................................................................................................................... ......................................................................................................................... ......................................................................................................................... ......................................................................................................................... ......................................................................................................................... Table A–4 presents the calculation of the number of eligible family members of servicemembers in each age group; this combines the projected number of servicemembers from Table A–3 with the distribution of family members presented in Table A–2. TABLE A–4—ESTIMATED NUMBER OF ELIGIBLE FAMILY MEMBERS OF SERVICEMEMBERS BY AGE RANGE 18–21 22–30 31–40 41–50 51–59 Number of eligible family members Projected number of servicemembers Age range 0 1 2 3 4 5 ................................................... ................................................... ................................................... ................................................... ................................................... 39,203 92,590 48,856 15,760 1,182 11,492 25,353 15,184 5,954 535 19,386 43,086 21,545 6,362 419 8,233 21,533 10,331 2,656 172 92.1 2,615 1,750 657 46.5 0 0 85.5 116 8.39 0 0 9.8 16.5 1.18 Total .............................................. 197,591 58,519 90,798 42,924 5,161 210 28 Military Caregiver Leaves tkelley on DSK3SPTVN1PROD with PROPOSALS2 Table A–5 presents the calculation of the projected number of servicemembers VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 in each age category based on the estimated average number and age PO 00000 Frm 00049 Fmt 4701 Sfmt 4702 Total number of eligible family members 36,128 93,996 47,848 14,190 942 193,104 profile of servicemembers and covered veterans. E:\FR\FM\15FEP2.SGM 15FEP2 9008 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules TABLE A–5—ESTIMATED AGE PROFILE OF SERVICEMEMBERS AND COVERED VETERANS WITH SERIOUS INJURY OR ILLNESS Total average number of military members General military servicemember age range 18–21 22–30 31–40 41–50 51–59 Average estimated proportion of military members by age range percent) Projected number of servicemembers with serious injury or illness per year 92,500 92,500 92,500 92,500 92,500 19.8 46.9 24.7 8.0 0.6 18,352 43,345 22,871 7,378 553 ......................................................................................................................... ......................................................................................................................... ......................................................................................................................... ......................................................................................................................... ......................................................................................................................... Table A–6 presents the calculation of the number of eligible caregivers of servicemembers in each age group; this combines the projected number of servicemembers from Table A–5 with the distribution of family members presented in Table A–2 with one difference. Under military caregiver leave we assume that each covered servicemember has at least one caregiver; so, the servicemembers in the category ‘‘0’’ caregivers are assumed to have at least 1 caregiver. TABLE A–6—ESTIMATED NUMBER OF ELIGIBLE CAREGIVERS OF SERVICEMEMBERS BY AGE RANGE Projected number of service members Age range 18–21 22–30 31–40 41–50 51–59 Number of eligible family members 0 1 2 3 4 ......................................................... ......................................................... ......................................................... ......................................................... ......................................................... 18,352 43,345 22,871 7,378 553 5,380 11,869 7,108 2,787 250 9,075 20,170 10,086 2,978 196 3,854 10,080 4,836 1,243 81 43.1 1,224 819 308 21.7 0 0 40.0 54 3.93 Total .................................................... 92,500 27,395 42,506 20,094 2,416 98 tkelley on DSK3SPTVN1PROD with PROPOSALS2 VII. 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 (equivalent to $143 million in 2010 dollars after adjusting for inflation). State, local, and tribal government entities are within the scope of the regulated community for this proposed regulation. The Department has determined that this rule contains a Federal mandate that is unlikely to result in expenditures of $143 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. Total costs to government entities do not exceed $25 million in any single year of the rule (see Table 7–2A). Total costs to VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 the private sector do not exceed $53 million in the first, most costly year of the rule. See Table 7–2A. The total first year cost of this rule is estimated at $72.4 million to the private and public sectors combined. Thus, the proposed rule is not expected to result in any expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. VIII. 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. IX. 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 PO 00000 Frm 00050 Fmt 4701 Sfmt 4702 Total number of eligible family members 5 0 0 4.6 7.7 0.55 13 22,293 55,872 29,508 9,430 691 117,794 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. X. 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. XI. 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 although the rule addresses family and medical leave provisions of the FMLA including the rights of employees to take leave for the birth or adoption of a child and to care for a healthy newborn or adopted E:\FR\FM\15FEP2.SGM 15FEP2 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules child, and to take leave to care for a son or daughter with a serious health condition, it does not concern environmental health or safety risks that may disproportionately affect children. XII. Environmental Impact Assessment A review of this proposal in accordance with the requirements of the National Environmental Policy Act of 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. XIII. 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. XIV. 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. XV. 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 tkelley on DSK3SPTVN1PROD with PROPOSALS2 Employee benefit plans, Health, Health insurance, Labor management relations, Maternal and child health, Teachers. Signed at Washington, DC, this 30th day of January, 2012. Nancy J. Leppink, Deputy Administrator, Wage and Hour Division. For the reasons set out in the preamble, the Department of Labor proposes to amend Title 29 part 825 of the Code of Federal Regulations as follows: 1. The authority citation for part 825 continues to read as follows: VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 Authority: 29 U.S.C. 2654 Subpart A—Coverage Under the Family and Medical Leave Act 2. Amend § 825.100 by revising the first and second sentences of paragraph (a) to read as follows: § 825.100 Act. The Family and Medical Leave (a) The Family and Medical Leave Act of 1993, as amended, (FMLA or Act) allows ‘‘eligible’’ employees of a covered employer to take job-protected, unpaid leave, or to substitute appropriate paid leave if the employee has earned or accrued it, for up to a total of 12 workweeks in any 12 months (see § 825.200(b)) because of the birth of a child and to care for the newborn child, because of the placement of a child with the employee for adoption or foster care, because the employee is needed to care for a family member (child, spouse, or parent) with a serious health condition, because the employee’s own serious health condition makes the employee unable to perform the functions of his or her job, or because of 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 or call to covered active duty status. In addition, ‘‘eligible’’ employees of a covered employer may take job-protected, unpaid leave, or substitute appropriate paid leave if the employee has earned or accrued it, for up to a total of 26 workweeks in a ‘‘single 12-month period’’ to care for a covered servicemember with a serious injury or illness. * * * * * * * * 3. Amend § 825.101 by revising the first sentence of paragraph (a) to read as follows: § 825.101 Purpose of the Act. (a) FMLA is intended to allow employees to balance their work and family life by taking reasonable unpaid leave for medical reasons, for the birth or adoption of a child, for the care of a child, spouse, or parent who has a serious health condition, for the care of a covered servicemember with a serious injury or illness, or because of a qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status. * * * * * * * * 4. Amend § 825.107 by revising the last sentence of paragraph (c) to read as follows: § 825.107 Successor in interest coverage. * * PO 00000 * Frm 00051 * Fmt 4701 * Sfmt 4702 9009 (c) * * * A successor which meets FMLA’s coverage criteria must count periods of employment and hours of service with the predecessor for purposes of determining employee eligibility for FMLA leave. 5. Amend § 825.110 by: a. revising paragraph (a)(2); b. revising the first and third sentences of paragraph (b)(2)(i); c. revising the first sentence of paragraph (c)(1); d. adding new paragraph (c)(2); e. re-designating current paragraph (c)(2) as (c)(3); f. revising the first sentence of newly designated paragraph (c)(3); g. re-designating current paragraph (c)(3) as (c)(4); h. revising newly designated (c)(4); and i. revising paragraph (d) to read as follows: § 825.110 Eligible employee. (a) * * * (2) Has been employed for at least 1,250 hours of service during the 12month period immediately preceding the commencement of the leave (see § 825.110(c)(2) for special hours of service requirements for airline flight crew employees), and * * * * * (b) * * * (2) * * * (i) The employee’s break in service is occasioned by the fulfillment of his or her Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4301, et seq., qualifying military service obligation. * * * However, this section does not provide any greater entitlement to the employee than would be available under USERRA; or * * * * * * * * (c)(1) Except as provided in paragraph (c)(2) and (3) of this section, whether an employee has worked the minimum 1,250 hours of service is determined according to the principles established under the Fair Labor Standards Act (FLSA) for determining compensable hours of work. * * * (2) Whether an airline flight crew employee meets the hours of service requirement is determined by assessing the number of hours the employee has worked or been paid over the previous 12 months. An airline flight crew employee will meet the hours of service requirement during the previous 12month period if he or she has worked or been paid for not less than 60 percent of the employee’s applicable monthly guarantee and has worked or been paid for not less than 504 hours. E:\FR\FM\15FEP2.SGM 15FEP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 9010 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules (i) The applicable monthly guarantee for an airline flight crew employee who is not on reserve status is the minimum number of hours for which an employer has agreed to schedule such employee for any given month. The applicable monthly guarantee for an airline flight crew employee who is on reserve status is the number of hours for which an employer has agreed to pay the employee for any given month (ii) The hours an airline flight crew employee has worked for purposes of the hours of service requirement is the employee’s duty hours during the previous 12-month period. The hours an airline flight crew employee has been paid is the number of hours for which an employee received wages during the previous 12-month period. The 504 hours do not include personal commute time or time spent on vacation, medical, or sick leave. (3) An employee returning from his or her USERRA qualifying military service shall be credited with the hours of service that would have been performed but for the period of military service in determining the employee’s eligibility for FMLA-qualifying leave. * * * (4) In the event an employer does not maintain an accurate record of hours worked by an employee (or hours paid, in the case of an airline flight crew employee), including for employees who are exempt from FLSA’s requirement that a record be kept of their hours worked (e.g., bona fide executive, administrative, and professional employees as defined in FLSA regulations, 29 CFR part 541), the employer has the burden of showing that the employee has not worked the requisite hours. An employer must be able to clearly demonstrate, for example, that full-time teachers (see § 825.102 for definition) of an elementary or secondary school system, or institution of higher education, or other educational establishment or institution (who often work outside the classroom or at their homes) did not work 1,250 hours during the previous 12 months in order to claim that the teachers are not eligible for FMLA leave. Similarly, an employer must be able to clearly demonstrate that airline flight crew employees have not ‘‘worked or been paid’’ for 60 percent of their applicable monthly guarantee or for 504 hours during the previous 12 months in order to claim that the airline flight crew employees are not eligible for FMLA leave. (d) The determination of whether an employee meets the hours of service requirement and has been employed by the employer for a total of at least 12 months must be made as of the date the VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 FMLA leave is to start. An employee may be on ‘‘non-FMLA leave’’ at the time he or she meets the 12-month eligibility requirement, and in that event, any portion of the leave taken for an FMLA-qualifying reason after the employee meets the eligibility requirement would be ‘‘FMLA leave.’’ (See § 825.300(b) for rules governing the content of the eligibility notice given to employees.) * * * * * 6. Amend § 825.112 by revising paragraph (a)(5) and (a)(6) to read as follows: § 825.112 Qualifying reasons for leave, general rule. (a) * * * (5) Because of 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 or call to covered active duty status (see §§ 825.122 and 825.126); and (6) To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember (see §§ 825.122 and 825.127). * * * * * 7. Amend § 825.122 by: a. revising the section heading; b. replacing ‘‘active duty’’ with ‘‘covered active duty’’ in each instance that it appears in the heading and this section; c. re-designating current paragraphs (a) through (j) as (b) through (k) d. adding new paragraph (a); and e. revising the last sentence in paragraph (h) The additions and revisions read as follows: § 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. (a) Covered servicemember. Covered servicemember means (1) A current member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness; or (2) A covered veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness. ‘‘Covered veteran’’ PO 00000 Frm 00052 Fmt 4701 Sfmt 4702 means an individual who was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date of the employee’s military caregiver leave. * * * * * (h) * * * See § 825.126(a)(5). * * * * * 7. Revise § 825.126 to read as follows: § 825.126 Leave because of a qualifying exigency. (a) Eligible employees may take FMLA leave for a qualifying exigency while the employee’s spouse, son, daughter, or parent (the ‘‘military member’’ or ‘‘member’’) is on covered active duty or call to covered active duty status. (1) ‘‘Covered active duty or call to covered active duty status’’ in the case of a member of the Regular Armed Forces means duty under a call or order to active duty (or notification of an impending call or order to covered active duty) during the deployment of the member with the Armed Forces to a foreign country. The active duty orders of a member of the Regular components of the Armed Forces will generally specify if the member is deployed to a foreign country. (2) ‘‘Covered active duty or call to covered active duty status’’ in the case of a member of the Reserve components of the Armed Forces means duty under a call or order to active duty (or notification of an impending call or order to active duty) during the deployment of the member with the Armed Forces to a foreign country under a Federal call or order to active duty in support of a contingency operation pursuant to: Section 688 of Title 10 of the United States Code, which authorizes ordering to active duty retired members of the Regular Armed Forces and members of the retired Reserve who retired after completing at least 20 years of active service; Section 12301(a) of Title 10 of the United States Code, which authorizes ordering all reserve component members to active duty in the case of war or national emergency; Section 12302 of Title 10 of the United States Code, which authorizes ordering any unit or unassigned member of the Ready Reserve to active duty; Section 12304 of Title 10 of the United States Code, which authorizes ordering any unit or unassigned member of the Selected Reserve and certain members of the Individual Ready Reserve to active duty; Section 12305 of Title 10 of the United States Code, which authorizes the suspension of promotion, retirement or separation rules for certain Reserve E:\FR\FM\15FEP2.SGM 15FEP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules components; Section 12406 of Title 10 of the United States Code, which authorizes calling the National Guard into Federal service in certain circumstances; Chapter 15 of Title 10 of the United States Code, which authorizes calling the National Guard and State military into Federal service in the case of insurrections and national emergencies; or any other provision of law during a war or during a national emergency declared by the President or Congress so long as it is in support of a contingency operation. See 10 U.S.C. 101(a)(13)(B). (i) For purposes of covered active duty or call to covered active duty status, the Reserve components of the Armed Forces include the Army National Guard of the United States, Army Reserve, Navy Reserve, Marine Corps Reserve, Air National Guard of the United States, Air Force Reserve and Coast Guard Reserve, and retired members of the Regular Armed Forces or Reserves who are called up in support of a contingency operation pursuant to one of the provisions of law identified in paragraph (a)(2). (ii) The active duty orders of a member of the Reserve components will generally specify if the military member is serving in support of a contingency operation by citation to the relevant section of Title 10 of the United States Code and/or by reference to the specific name of the contingency operation and will specify that the deployment is to a foreign country. (3) ‘‘Deployment of the member with the Armed Forces to a foreign country’’ means deployment to areas outside of the United States, the District of Columbia, or any Territory or possession of the United States, including international waters. (4) A call to covered active duty for purposes of leave taken because of a qualifying exigency refers to a Federal call to active duty. State calls to active duty are not covered unless under order of the President of the United States pursuant to one of the provisions of law identified in paragraph (a)(2) of this section. (5) A ‘‘son or daughter on covered active duty or call to covered active duty status’’ means the employee’s biological, adopted, or foster child, stepchild, legal ward, or child for whom the employee stood in loco parentis, who is on covered active duty or call to covered active duty status, and who is of any age. (b) An eligible employee may take FMLA leave for one or more of the following qualifying exigencies: (1) Short-notice deployment. VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 (i) To address any issue that arises from the fact that the military member is notified of an impending call or order to covered active duty seven or less calendar days prior to the date of deployment; (ii) Leave taken for this purpose can be used for a period of seven calendar days beginning on the date the military member is notified of an impending call or order to covered active duty; (2) Military events and related activities. (i) To attend any official ceremony, program, or event sponsored by the military that is related to the covered active duty or call to covered active duty status of the military member; and (ii) To attend family support or assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross that are related to the covered active duty or call to covered active duty status of the military member; (3) Childcare and school activities. For purposes of leave for the childcare and school activities listed in paragraphs (b)(3)(i) through (iv) of this section, a child of the military member must be the military member’s biological, adopted, or foster child, stepchild, legal ward, or child for whom the military member stands in loco parentis, who is either under 18 years of age or 18 years of age or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence. As with all instances of qualifying exigency leave, the military member must be the spouse, son, daughter, or parent of the employee requesting qualifying exigency leave. (i) To arrange for alternative childcare for a child of the military member when the covered active duty or call to covered active duty status of the military member necessitates a change in the existing childcare arrangement; (ii) To provide childcare for a child of the military member on an urgent, immediate need basis (but not on a routine, regular, or everyday basis) when the need to provide such care arises from the covered active duty or call to covered active duty status of the military member; (iii) To enroll in or transfer to a new school or day care facility a child of the military member when enrollment or transfer is necessitated by the covered active duty or call to covered active duty status of the military member; and (iv) To attend meetings with staff at a school or a daycare facility, such as meetings with school officials regarding disciplinary measures, parent-teacher PO 00000 Frm 00053 Fmt 4701 Sfmt 4702 9011 conferences, or meetings with school counselors, for a child of the military member, when such meetings are necessary due to circumstances arising from the covered active duty or call to covered active duty status of the military member; (4) Financial and legal arrangements. (i) To make or update financial or legal arrangements to address the military member’s absence while on covered active duty or call to covered active duty status, such as preparing and executing financial and healthcare powers of attorney, transferring bank account signature authority, enrolling in the Defense Enrollment Eligibility Reporting System (DEERS), obtaining military identification cards, or preparing or updating a will or living trust; and (ii) To act as the military member’s representative before a Federal, State, or local agency for purposes of obtaining, arranging, or appealing military service benefits while the military member is on covered active duty or call to covered active duty status, and for a period of 90 days following the termination of the military member’s covered active duty status; (5) Counseling. To attend counseling, provided by someone other than a health care provider, for oneself, for the military member, or for the biological, adopted, or foster child, a stepchild, or a legal ward of the military member, or a child for whom the military member stands in loco parentis, who is either under age 18, or age 18 or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence, provided that the need for counseling arises from the covered active duty or call to covered active duty status of the military member; (6) Rest and Recuperation. (i) To spend time with the military member who is on short-term, temporary Rest and Recuperation leave during the period of deployment; (ii) Eligible employees may take leave for the duration of the Rest and Recuperation leave provided to the military member, up to a maximum of 15 days for each instance of Rest and Recuperation leave; (7) Post-deployment activities. (i) To attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military for a period of 90 days following the termination of the military member’s covered active duty status; and (ii) To address issues that arise from the death of the military member while on covered active duty status, such as E:\FR\FM\15FEP2.SGM 15FEP2 9012 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules meeting and recovering the body of the military member, making funeral arrangements, and attending funeral services; (8) Additional activities. To address other events which arise out of the military member’s covered active duty or call to covered active duty status provided that the employer and employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave. 9. Amend § 825.127 by: a. revising the section heading; b. re-designating current paragraphs (b) through (d) as (d) through (f) respectively; c. adding new paragraph (b) d. adding new paragraph (c); e. revising the last sentence of newly designated paragraph (d)(3); f. removing ‘‘weeks’’ and adding in its place ‘‘workweeks’’ every time it appears in paragraph (e)(3); g. revising newly designated paragraph (f) h. removing the phrase ‘‘paragraph (c)’’ everywhere it appears in newly designated paragraph (e) and adding in its place ‘‘paragraph (e)’’ to read as follows: § 825.127 Leave to care for a covered servicemember with a serious injury or illness (‘‘military caregiver leave’’). tkelley on DSK3SPTVN1PROD with PROPOSALS2 * * * * * (a) Eligible employees are entitled to FMLA leave to care for a covered servicemember with a serious illness or injury. (b) ‘‘Covered servicemember’’ means: (1) A current member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness. ‘‘Outpatient status’’ means the status of a member of the Armed Forces assigned to either a military medical treatment facility as an outpatient or a unit established for the purpose of providing command and control of members of the Armed Forces receiving medical care as outpatients. (2) A covered veteran who is undergoing medical treatment, recuperation or therapy for a serious injury or illness. ‘‘Covered veteran’’ means an individual who was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran. An eligible employee must commence leave to care for a covered veteran within five years of the veteran’s VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 active duty service but the ‘‘single 12month period’’ described in paragraph (e)(1) of this section may extend beyond the five-year period. (c) A ‘‘serious injury or illness’’: (1) In the case of a current member of the Armed Forces, including a member of the National Guard or Reserves, means an injury or illness that was incurred by the covered servicemember in the line of duty on active duty in the Armed Forces or that existed before the beginning of the member’s active duty and was aggravated by service in the line of duty on active duty in the Armed Forces, and that may render the member medically unfit to perform the duties of the member’s office, grade, rank or rating; and, (2) In the case of a covered veteran, an injury or illness will be a qualifying serious injury or illness if it was incurred by the member in the line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in the line of duty on active duty in the Armed Forces) and manifested itself before or after the member became a veteran, and is: (i) A continuation of a serious injury or illness that was incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the servicemember unable to perform the duties of the servicemember’s office, grade, rank, or rating; or (ii) A physical or mental condition for which the covered veteran has received a U.S. Department of Veterans Affairs Service Related Disability Rating (VASRD) of 50% or higher, and such VASRD rating is based, in whole or in part, on the condition precipitating the need for military caregiver leave; or (iii) A physical or mental condition that substantially impairs the covered veteran’s ability to secure or follow a substantially gainful occupation by reason of a service-connected disability or disabilities, or would do so absent treatment. (d) * * * (3) * * * An employer is permitted to require an employee to provide confirmation of covered family relationship to the covered servicemember pursuant to § 825.122(k). * * * (f) A husband and wife 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 PO 00000 Frm 00054 Fmt 4701 Sfmt 4702 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. Subpart B—Employee Leave Entitlements Under the Family and Medical Leave Act 10. Amend § 825.200 as follows: a. revising paragraph (a)(5); b. revising the citation following the last sentence in paragraph (f); and c. revising the citation following the last sentence in paragraph (g), to read as follows: § 825.200 Amount of leave. (a) * * * (5) Because of 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 or call to covered active duty status. * * * * * (f) * * * See § 825.127(e)(1). (g) * * * See § 825.127(e)(2). * * * * * 11. Amend § 825.202 by revising the second sentence in paragraph (b) and revising the first sentence in paragraph (b)(1), to read as follows: § 825.202 Intermittent leave or reduced leave schedule. * * * * * (b) * * * For intermittent leave or leave on a reduced leave schedule taken because of one’s own serious health condition, to care for a spouse, parent, son, or daughter with a serious health condition, or to care for a covered servicemember with a serious injury or illness, there must be a medical need for leave and it must be that such medical need can be best accommodated through an intermittent or reduced leave schedule. * * * (1) Intermittent leave may be taken for a serious health condition of a spouse, parent, son, or daughter, for the employee’s own serious health condition, or a serious injury or illness of a covered servicemember which requires treatment by a health care provider periodically, rather than for one continuous period of time, and may include leave of periods from an hour or more to several weeks. * * * * * * * * 12. Amend § 825.205 by: a. revising paragraph (a); b. revising paragraph (b)(1); c. revising paragraph (c), and E:\FR\FM\15FEP2.SGM 15FEP2 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules d. adding paragraph (d), to read as follows: tkelley on DSK3SPTVN1PROD with PROPOSALS2 § 825.205 Increments of FMLA leave for intermittent or reduced schedule leave. (a) Minimum increment. (1) When an employee takes FMLA leave on an intermittent or reduced leave schedule basis, the employer must account for the leave using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave provided that it is not greater than one hour and provided further that an employee’s FMLA leave entitlement may not be reduced by more than the amount of leave actually taken. An employer may not require an employee to take more leave than is necessary to address the circumstances that precipitated the need for the leave, provided that the leave is counted using the shortest increment of leave used to account for any other type of leave. (See also § 825.205(a)(2) for the physical impossibility exception and §§ 825.600 and 825.601 for special rules applicable to employees of schools.) If an employer uses different increments to account for different types of leave, the employer must account for FMLA leave in the smallest increment used to account for any other type of leave. For example, if an employer accounts for the use of annual leave in increments of one hour and the use of sick leave in increments of one-half hour, then FMLA leave use must be accounted for using increments no larger than one-half hour. If an employer accounts for other forms of leave use only in increments greater than one hour, the employer must account for FMLA leave use in increments no greater than one hour. An employer may account for FMLA leave in shorter increments than used for other forms of leave. For example, an employer that accounts for other forms of leave in one hour increments may account for FMLA leave in a shorter increment when the employee arrives at work several minutes late, and the employer wants the employee to begin work immediately. Such accounting for FMLA leave will not alter the increment considered to be the shortest period used to account for other forms of leave or the use of FMLA leave in other circumstances. In all cases, employees may not be charged FMLA leave for periods during which they are working. (2) Where it is physically impossible for an employee using intermittent leave or working a reduced leave schedule to commence or end work mid-way through a shift, such as where a flight attendant or a railroad conductor is scheduled to work aboard an airplane or train, or a laboratory employee is unable VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 to enter or leave a sealed ‘‘clean room’’ during a certain period of time and no equivalent position is available, the entire period that the employee is forced to be absent is designated as FMLA leave and counts against the employee’s FMLA entitlement. The period of the physical impossibility is limited to the period during which the employer is unable to permit the employee to work at the same or an equivalent position prior to a period of FMLA leave or return the employee to the same or equivalent position due to the physical impossibility after a period of FMLA leave. See § 825.214. (b) Calculation of leave. (1) When an employee takes leave on an intermittent or reduced leave schedule, only the amount of leave actually taken may be counted toward the employee’s leave entitlement. The actual workweek is the basis of leave entitlement. Therefore, if an employee who would otherwise work 40 hours a week takes off 8 hours, the employee would use one-fifth (1⁄5) of a week of FMLA leave. Similarly, if a full-time employee who would otherwise work 8-hour days works 4hour days under a reduced leave schedule, the employee would use onehalf (1⁄2) week of FMLA leave. When an employee works a part-time schedule or variable hours, the amount of FMLA leave that an employee uses is determined on a pro rata or proportional basis If an employee who would otherwise work 30 hours per week works only 20 hours a week under a reduced leave schedule, the employee’s ten hours of leave would constitute onethird (1⁄3) of a week of FMLA leave for each week the employee works the reduced leave schedule. An employer may convert these fractions to their hourly equivalent so long as the conversion equitably reflects the employee’s total normally scheduled hours. An employee does not accrue FMLA-protected leave at any particular hourly rate. An eligible employee is entitled to up to a total of 12 workweeks of leave, or 26 workweeks in the case of military caregiver leave, and the total number of hours contained in those workweeks is necessarily dependent on the specific hours the employee would have worked but for the FMLA leave. * * * * * (c) Overtime. If an employee would normally be required to work overtime, but is unable to do so because of an FMLA-qualifying reason that limits the employee’s ability to work overtime, the hours which the employee would have been required to work may be counted against the employee’s FMLA entitlement. In such a case, the PO 00000 Frm 00055 Fmt 4701 Sfmt 4702 9013 employee is using intermittent or reduced schedule leave. For example, if an employee would normally be required to work for 48 hours in a particular week, but due to a serious health condition the employee is unable to work more than 40 hours that week, the employee would utilize eight hours of FMLA-protected leave out of the 48hour workweek, or one-sixth (1⁄6) of a week of FMLA leave. Voluntary overtime hours that an employee does not work due to an FMLA-qualifying reason may not be counted against the employee’s FMLA leave entitlement. (d) Calculation of leave for airline flight crew employees. (1) For flight crew employees who are ‘‘line holders,’’ the employee’s scheduled workweek, which is the total scheduled duty hours for that workweek, is the basis for calculating the employee’s FMLA leave. The amount of FMLA leave is determined on a pro rata or proportional basis according to principles established in paragraph (b) of this section. For example, if a line holder needed to take four hours of leave during a workweek in which the employee was scheduled to work 20 hours, the FMLA leave used would be one-fifth (1⁄5) of a workweek. (2) For an airline flight crew employee on reserve status, an average of the greater of the applicable monthly guarantee or actual duty hours worked in each of the prior 12 months would be used for calculating the employee’s average workweek. The workweek determination must be completed at the employee’s first instance of leave and is valid for the remainder of the FMLA leave year. The amount of FMLA leave is determined on a pro rata or proportional basis according to principles established in paragraph (b) of this section. For example, if it was determined that a reserve status employee had a workweek of 20 hours after averaging the greater of the employee’s monthly guarantee or actual duty hours over the past 12 months, the employee would be entitled to 12 20hour workweeks for FMLA leave. If the employee needed four hours of FMLA leave in one workweek, the employee would have used one-fifth (1⁄5) of a workweek. 13. Amend § 825.213(a) by revising the fifth sentence in paragraph (a)(3) to read as follows: § 825.213 costs. Employer recovery of benefit (a) * * * (3) * * * For purposes of medical certification, the employee may use the optional DOL forms developed for these E:\FR\FM\15FEP2.SGM 15FEP2 9014 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules purposes (see §§ 825.306(b), 825.310(c)– (d)). * * * * * * * * Subpart C—Employee and Employer Rights and Obligations Under the Act 14. Amend § 825.300 by: a. Removing ‘‘www.wagehour.dol.gov’’ and adding in its place ‘‘www.dol.gov/whd’’ whenever it appears in this section. b. revising the first sentence of paragraph (a)(4); c. revising paragraph (b)(2); d. revising paragraph (c)(1)(ii); e. revising the first sentence of paragraph (c)(6); and f. revising the second sentence of paragraph (d)(4) to read as follows: tkelley on DSK3SPTVN1PROD with PROPOSALS2 § 825.300 Employer notice requirements. (a) * * * (4) To meet the requirements of paragraph (a)(3) of this section, employers may duplicate the text of the Department’s prototype notice (WHD Publication 1420) or may use another format so long as the information provided includes, at a minimum, all of the information contained in that notice. * * * (b) * * * (2) The eligibility notice must state whether the employee is eligible for FMLA leave as defined in § 825.110. If the employee is not eligible for FMLA leave, the notice must state at least one reason why the employee is not eligible, including as applicable the number of months the employee has been employed by the employer, the number of hours of service with the employer during the 12-month period, and whether the employee is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite. Notification of eligibility may be oral or in writing; employers may use optional Form WH– 381 (Notice of Eligibility and Rights and Responsibility) to provide such notification to employees. Prototypes are available from the nearest office of the Wage and Hour Division or on the Internet at www.dol.gov/whd. The employer is obligated to translate this notice in any situation in which it is obligated to do so in § 825.300(a)(4). * * * * * (c) * * * (1) * * * (ii) Any requirements for the employee to furnish certification of a serious health condition, serious injury or illness, or qualifying exigency arising out of covered active duty or call to covered active duty status, and the consequences of failing to do so (see §§ 825.305, 825.309, 825.310, 825.313); VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 * * * (6) A prototype notice of rights and responsibilities may be obtained from local offices of the Wage and Hour Division or from the Internet at www. dol.gov/whd. * * * * * * * * (d) * * * (4) * * * A prototype designation notice may be obtained from local offices of the Wage and Hour Division or from the Internet at www.dol.gov/ whd. * * * * * * * * 15. Amend § 825.302 by: a. removing ‘‘active duty’’ and adding in its place ‘‘covered active duty’’ whenever it appears in paragraph (c); and b. revising the citation in the second sentence of paragraph (c), to read as follows: § 825.302 Employee notice requirements for foreseeable FMLA leave. (a) * * * (c) * * * Depending on the situation, such information may include that a condition renders the employee unable to perform the functions of the job; that the employee is pregnant or has been hospitalized overnight; whether the employee or the employee’s family member is under the continuing care of a health care provider; if the leave is due to a qualifying exigency, that a military member is on covered active duty or call to covered active duty status, and that the requested leave is for one of the reasons listed in § 825.126(b); if the leave is for a family member, that the condition renders the family member unable to perform daily activities, or that the family member is a covered servicemember with a serious injury or illness; and the anticipated duration of the absence, if known. * * * * * * * * 16. Amend § 825.303 by: a. removing ‘‘active duty’’ and adding in its place ‘‘covered active duty’’ every time it appears in paragraph (b); b. revising the citation in the second sentence from 825.126(a) to 825.126(b) in paragraph (b) to read as follows: § 825.303 Employee notice requirements for unforeseeable FMLA leave. * * * * * (b) * * * Depending on the situation, such information may include that a condition renders the employee unable to perform the functions of the job; that the employee is pregnant or has been hospitalized overnight; whether the employee or the employee’s family member is under the continuing care of a health care provider; if the leave is PO 00000 Frm 00056 Fmt 4701 Sfmt 4702 due to a qualifying exigency, that a military member is on covered active duty or call to covered active duty status, that the requested leave is for one of the reasons listed in § 825.126(b), and the anticipated duration of the absence; or if the leave is for a family member that the condition renders the family member unable to perform daily activities or that the family member is a covered servicemember with a serious injury or illness; and the anticipated duration of the absence, if known. * * * * * * * * 17. Amend § 825.306 by revising paragraph (b) to read as follows: § 825.306 Content of medical certification for leave taken because of an employee’s own serious health condition or the serious health condition of a family member. * * * * * (b) DOL has developed two optional forms (Form WH–380E and Form WH– 380F, as revised) for use in obtaining medical certification, including second and third opinions, from health care providers that meets FMLA’s certification requirements. Optional form WH–380E is for use when the employee’s need for leave is due to the employee’s own serious health condition. Optional form WH–380F is for use when the employee needs leave to care for a family member with a serious health condition. These optional forms reflect certification requirements so as to permit the health care provider to furnish appropriate medical information. Form WH–380E and WH– 380F, as revised, or another form containing the same basic information, may be used by the employer; however, no information may be required beyond that specified in §§ 825.306, 825.307, and 825.308. In all instances the information on the form must relate only to the serious health condition for which the current need for leave exists. Prototype forms WH–380E and WH– 380F may be obtained from local offices of the Wage and Hour Division or from the Internet at www.dol.gov/whd. * * * * * 18. Amend § 825.309 by: a. removing ‘‘active duty’’ and adding in its place ‘‘covered active duty’’ every time it appears in this section; b. revising paragraph (a); c. revising paragraphs (b)(4) and (b)(5); d. adding paragraph (b)(6); e. removing the parenthetical at the end of the first sentence in paragraph (c); and f. revising the first and second sentences in paragraph (c). E:\FR\FM\15FEP2.SGM 15FEP2 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules The additions and revisions read as follows: tkelley on DSK3SPTVN1PROD with PROPOSALS2 § 825.309 Certification for leave taken because of a qualifying exigency. (a) Active Duty Orders. The first time an employee requests leave because of a qualifying exigency arising out of the covered active duty or call to covered active duty status of a military member (as defined in § 825.126(a)(1)–(2)), an employer may require the employee to provide a copy of the military member’s active duty orders or other documentation issued by the military which indicates that the military member is on covered active duty or call to covered active duty status, and the dates of the military member’s covered active duty service. This information need only be provided to the employer once. A copy of new active duty orders or other documentation issued by the military may be required by the employer if the need for leave because of a qualifying exigency arises out of a different covered active duty or call to covered active duty status of the same or a different military member. (b) * * * (4) If an employee requests leave because of a qualifying exigency on an intermittent or reduced schedule basis, an estimate of the frequency and duration of the qualifying exigency; (5) If the qualifying exigency involves meeting with a third party, appropriate contact information for the individual or entity with whom the employee is meeting (such as the name, title, organization, address, telephone number, fax number, and email address) and a brief description of the purpose of the meeting; and (6) If the qualifying exigency involves Rest and Recuperation leave, a copy of the military member’s Rest and Recuperation orders, or other documentation issued by the military which indicates that the military member has been granted Rest and Recuperation leave, and the dates of the military member’s Rest and Recuperation leave. (c) DOL has developed an optional form (Form WH–384) for employees’ use in obtaining a certification that meets FMLA’s certification requirements. Form WH–384 may be obtained from local offices of the Wage and Hour Division or from the Internet at www.dol.gov/whd. * * * * * * * * 19. Amend § 825.310 by: a. adding paragraph (a)(5); b. revising the first sentence of paragraph (b); c. adding paragraph (b)(1)(v); d. revising paragraph (b)(2); VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 e revising paragraph (b)(4); f. re-designating current paragraph (c)(6) as (c)(7); g. adding new paragraph (c)(6); h. revising paragraph (d); i. revising the citation in paragraph (e)(3) from § 825.122(j) to § 825.122(k); j. revising paragraph (f) to read as follows: § 825.310 Certification for leave taken to care for a covered servicemember (military caregiver leave). (a) * * * (5) Any health care provider as defined in § 825.125. (b) If the authorized health care provider is unable to make certain military-related determinations outlined below, the authorized health care provider may rely on determinations from an authorized DOD representative (such as a DOD recovery care coordinator) or an authorized VA representative. * * * (1) * * * (v) A health care provider as defined in § 825.125. (2) Whether the covered servicemember’s injury or illness was incurred in the line of duty on active duty or, if not, whether the covered servicemember’s injury or illness existed before the beginning of the servicemember’s active duty and was aggravated by service in the line of duty on active duty; * * * * * (4) A statement or description of appropriate medical facts regarding the covered servicemember’s health condition for which FMLA leave is requested. The medical facts must be sufficient to support the need for leave. (i) In the case of a current member of the Armed Forces, such medical facts must include information on whether the injury or illness may render the covered servicemember medically unfit to perform the duties of the servicemember’s office, grade, rank, or rating and whether the member is receiving medical treatment, recuperation, or therapy; (ii) In the case of a covered veteran, such medical facts must include information on whether the veteran is receiving medical treatment, recuperation, or therapy for an injury or illness that is: (A) The continuation of an injury or illness that was incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the servicemember medically unfit to perform the duties of the servicemember’s office, grade, rank, or rating; or (B) A physical or mental condition for which the covered veteran has received PO 00000 Frm 00057 Fmt 4701 Sfmt 4702 9015 a U.S. Department of Veterans Affairs Service Related Disability Rating (VASRD) of 50% or higher, and that such VASRD rating is based, in whole or in part, on the condition precipitating the need for military caregiver leave; (C) A physical or mental condition that substantially impairs the covered veteran’s ability to secure or follow a substantially gainful occupation by reason of a service-connected disability or disabilities, or would do so absent treatment. * * * * * (c) * * * (6) Whether the covered servicemember is a veteran, the date of separation from military service, and whether the separation was other than dishonorable. The employer may require the employee to provide documentation issued by the military which indicates that the covered servicemember is a veteran, the date of separation, and that the separation is other than dishonorable. Where an employer requires such documentation, an employee may provide a copy of the veteran’s Certificate of Release or Discharge from Active Duty issued by the U.S. Department of Defense (DD Form 214) or other proof of veteran status. * * * * * (d) DOL has developed an optional form (WH–385) for employees’ use in obtaining certification that meets FMLA’s certification requirements, which may be obtained from local offices of the Wage and Hour Division or on the Internet at www.dol.gov/whd. This optional form reflects certification requirements so as to permit the employee to furnish appropriate information to support his or her request for leave to care for a covered servicemember with a serious injury or illness. WH–385, or another form containing the same basic information, may be used by the employer; however, no information may be required beyond that specified in this section. In all instances the information on the certification must relate only to the serious injury or illness for which the current need for leave exists. An employer may seek authentication and/ or clarification of the certification under § 825.307. Second and third opinions under § 825.307 are not permitted for leave to care for a covered servicemember when the certification has been completed by one of the types of health care providers identified in § 825.310(a)(1)–(4). However, second and third opinions under § 825.307 are permitted when the certification has been completed by a health care E:\FR\FM\15FEP2.SGM 15FEP2 9016 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules provider as defined in § 825.125 that is not one of the types identified in § 825.310(a)(1)–(4). Additionally, recertifications under § 825.308 are not permitted for leave to care for a covered servicemember. An employer may require an employee to provide confirmation of covered family relationship to the seriously injured or ill servicemember pursuant to § 825.122(k) of the FMLA. (e) * * * (3) An employer may require an employee to provide confirmation of covered family relationship to the seriously injured or ill servicemember pursuant to § 825.122(k) when an employee supports his or her request for FMLA leave with a copy of an ITO or ITA. (f) Where medical certification is requested by an employer, an employee may not be held liable for administrative delays in the issuance of military documents, despite the employee’s diligent, good-faith efforts to obtain such documents. See § 825.305(b). In all instances in which certification is requested, it is the employee’s responsibility to provide the employer with complete and sufficient certification and failure to do so may result in the denial of FMLA leave. See § 825.305(d). Subpart E—Record-keeping Requirements 20. Amend § 825.500 by: a. revising paragraph (g) introductory text; and b. adding new paragraph (h), to read as follows: § 825.500 Record-keeping requirements. tkelley on DSK3SPTVN1PROD with PROPOSALS2 * * * * * (g) Records and documents relating to certifications, recertifications or medical histories of employees or employees’ family members, created for purposes of FMLA, shall be maintained as confidential medical records in separate files/records from the usual personnel files. If the Genetic Information Nondiscrimination Act of 2008 (GINA) is applicable, records and documents created for purposes of FMLA containing ‘‘family medical history’’ or ‘‘genetic information’’ as defined in GINA shall be maintained in accordance with the confidentiality requirements of Title II of GINA (see 29 CFR 1635.9), which permit such information to be disclosed consistent with the requirements of FMLA. If the ADA, as amended, is also applicable, such records shall be maintained in conformance with ADA confidentiality VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 requirements (see 29 CFR 1630.14(c)(1)), except that: * * * * * (h) Covered employers who employ eligible airline flight crew employees are required to maintain certain records ‘‘on file with the Secretary.’’ To comply with this requirement, such employers shall make, keep, and preserve records in accordance with the requirements of this section, and additional records as follows: (1) Records and documents containing information specifying the applicable monthly guarantee with respect to each category of employee to whom such guarantee applies, including copies of any relevant collective bargaining agreements or employer policy documents; and (2) A record of hours scheduled for airline flight crew employees on nonreserve status. 21. Redesignate § 825.800 as § 825.102, and revise newly designated § 825.102 to read as follows: § 825.102 Definitions. For purposes of this part: Act or FMLA means the Family and Medical Leave Act of 1993, Public Law 103–3 (February 5, 1993), 107 Stat. 6 (29 U.S.C. 2601 et seq., as amended). ADA means the Americans with Disabilities Act (42 U.S.C. 12101 et seq., as amended). Administrator means the Administrator of the Wage and Hour Division, U.S. Department of Labor, and includes any official of the Wage and Hour Division authorized to perform any of the functions of the Administrator under this part. Airline flight crew employee means an airline flight crewmember or flight attendant as those terms are defined in regulations of the Federal Aviation Administration. See also § 825.110(c)(2). Applicable monthly guarantee, means: (1) For the individual airline flight crew employee who is not on reserve status (line holder), the minimum number of hours for which an employer has agreed to schedule such employee for any given month; and (2) For an airline flight crew employee who is on reserve status, the number of hours for which an employer has agreed to pay the employee for any given month. See also § 825.110(c)(2). COBRA means the continuation coverage requirements of Title X of the Consolidated Omnibus Budget Reconciliation Act of 1986, as amended (Public Law 99–272, title X, section 10002; 100 Stat 227; 29 U.S.C. 1161– 1168). PO 00000 Frm 00058 Fmt 4701 Sfmt 4702 Commerce and industry or activity affecting commerce mean any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce, and include ‘‘commerce’’ and any ‘‘industry affecting commerce’’ as defined in sections 501(1) and 501(3) of the Labor Management Relations Act of 1947, 29 U.S.C. 142(1) and (3). Contingency operation means a military operation that: (1) Is designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force; or (2) Results in the call or order to, or retention on, active duty of members of the uniformed services under section 688, 12301(a), 12302, 12304, 12305, or 12406 of Title 10 of the United States Code, chapter 15 of Title 10 of the United States Code, or any other provision of law during a war or during a national emergency declared by the President or Congress. See also § 825.126(a)(2). Continuing treatment by a health care provider means any one of the following: (1) Incapacity and treatment. A period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves: (i) Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or (ii) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider. (iii) The requirement in paragraphs (1)(i) and (ii) of this definition for treatment by a health care provider means an in-person visit to a health care provider. The first in-person treatment visit must take place within seven days of the first day of incapacity. (iv) Whether additional treatment visits or a regimen of continuing treatment is necessary within the 30-day period shall be determined by the health care provider. (v) The term ‘‘extenuating circumstances’’ in paragraph (1)(i) means circumstances beyond the E:\FR\FM\15FEP2.SGM 15FEP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules employee’s control that prevent the follow-up visit from occurring as planned by the health care provider. Whether a given set of circumstances are extenuating depends on the facts. See also § 825.115(a)(5). (2) Pregnancy or prenatal care. Any period of incapacity due to pregnancy, or for prenatal care. See also § 825.120. (3) Chronic conditions. Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which: (i) Requires periodic visits (defined as at least twice a year) for treatment by a health care provider, or by a nurse under direct supervision of a health care provider; (ii) Continues over an extended period of time (including recurring episodes of a single underlying condition); and (iii) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.). (4) Permanent or long-term conditions. A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. Examples include Alzheimer’s, a severe stroke, or the terminal stages of a disease. (5) Conditions requiring multiple treatments. Any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, for: (i) Restorative surgery after an accident or other injury; or (ii) A condition that would likely result in a period of incapacity of more than three consecutive full calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), kidney disease (dialysis). (6) Absences attributable to incapacity under paragraphs (2) or (3) of this definition qualify for FMLA leave even though the employee or the covered family member does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three consecutive full calendar days. For example, an employee with asthma may be unable to report for work due to the onset of an asthma attack or because the employee’s health care provider has advised the employee to stay home VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 when the pollen count exceeds a certain level. An employee who is pregnant may be unable to report to work because of severe morning sickness. Covered active duty or call to covered active duty status means: (1) In the case of a member of the Regular Armed Forces, duty under a call or order to active duty (or notification of an impending call or order to covered active duty) during the deployment of the member with the Armed Forces to a foreign country; and, (2) In the case of a member of the reserve components of the Armed Forces, duty under a call or order to active duty (or notification of an impending call or order to active duty) during the deployment of the member with the Armed Forces to a foreign country under a Federal call or order to active duty under a provision of law referred to in section 101(a)(13)(B) of Title 10, United States Code. See also § 825.126(a). Covered servicemember means: (1) A current member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness, or (2) A covered veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness. Covered veteran means an individual who was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran. Eligible employee means: (1) An employee who has been employed for a total of at least 12 months by the employer on the date on which any FMLA leave is to commence, except that an employer need not consider any period of previous employment that occurred more than seven years before the date of the most recent hiring of the employee, unless: (i) The break in service is occasioned by the fulfillment of the employee’s National Guard or Reserve military service obligation (the time served performing the military service must be also counted in determining whether the employee has been employed for at least 12 months by the employer, but this section does not provide any greater entitlement to the employee than would be available under the Uniformed Services Employment and Reemployment Rights Act (USERRA)); or PO 00000 Frm 00059 Fmt 4701 Sfmt 4702 9017 (ii) A written agreement, including a collective bargaining agreement, exists concerning the employer’s intention to rehire the employee after the break in service (e.g., for purposes of the employee furthering his or her education or for childrearing purposes); and (2) Who, on the date on which any FMLA leave is to commence, has been employed for at least 1,250 hours of service with such employer during the previous 12-month period, except that: (i) An employee returning from fulfilling his or her National Guard or Reserve military obligation shall be credited with the hours-of-service that would have been performed but for the period of military service in determining whether the employee worked the 1,250 hours of service (accordingly, a person reemployed following military service has the hours that would have been worked for the employer added to any hours actually worked during the previous 12-month period to meet the 1,250 hour requirement); (ii) To determine the hours that would have been worked during the period of military service, the employee’s preservice work schedule can generally be used for calculations; (iii) An airline flight crew employee will be considered to meet the hours of service requirement if in the previous 12 months the employee has worked or been paid for not less than 60 percent of the applicable total monthly guarantee and has worked or been paid for not less than 504 hours (not counting personal commute time, or vacation, medical or sick leave). See 825.110(c)(2)–(3). (3) Who is employed in any State of the United States, the District of Columbia or any Territories or possession of the United States. (4) Excludes any Federal officer or employee covered under subchapter V of chapter 63 of title 5, United States Code. (5) Excludes any employee of the United States House of Representatives or the United States Senate covered by the Congressional Accountability Act of 1995, 2 U.S.C. 1301. (6) Excludes any employee who is employed at a worksite at which the employer employs fewer than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is also fewer than 50. (7) Excludes any employee employed in any country other than the United States or any Territory or possession of the United States. E:\FR\FM\15FEP2.SGM 15FEP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 9018 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules Employ means to suffer or permit to work. Employee has the meaning given the same term as defined in section 3(e) of the Fair Labor Standards Act, 29 U.S.C. 203(e), as follows: (1) The term ‘‘employee’’ means any individual employed by an employer; (2) In the case of an individual employed by a public agency, ‘‘employee’’ means— (i) Any individual employed by the Government of the United States— (A) As a civilian in the military departments (as defined in section 102 of Title 5, United States Code), (B) In any executive agency (as defined in section 105 of Title 5, United States Code), excluding any Federal officer or employee covered under subchapter V of chapter 63 of Title 5, United States Code, (C) In any unit of the legislative or judicial branch of the Government which has positions in the competitive service, excluding any employee of the United States House of Representatives or the United States Senate who is covered by the Congressional Accountability Act of 1995, (D) In a nonappropriated fund instrumentality under the jurisdiction of the Armed Forces, or (ii) Any individual employed by the United States Postal Service or the Postal Regulatory Commission; and (iii) Any individual employed by a State, political subdivision of a State, or an interstate governmental agency, other than such an individual— (A) Who is not subject to the civil service laws of the State, political subdivision, or agency which employs the employee; and (B) Who— (1) Holds a public elective office of that State, political subdivision, or agency, (2) Is selected by the holder of such an office to be a member of his personal staff, (3) Is appointed by such an officeholder to serve on a policymaking level, (4) Is an immediate adviser to such an officeholder with respect to the constitutional or legal powers of the office of such officeholder, or (5) Is an employee in the legislative branch or legislative body of that State, political subdivision, or agency and is not employed by the legislative library of such State, political subdivision, or agency. Employee employed in an instructional capacity. See the definition of Teacher in this section. Employer means any person engaged in commerce or in an industry or VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year, and includes— (1) Any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer; (2) Any successor in interest of an employer; and (3) Any public agency. Employment benefits means all benefits provided or made available to employees by an employer, including group life insurance, health insurance, disability insurance, sick leave, annual leave, educational benefits, and pensions, regardless of whether such benefits are provided by a practice or written policy of an employer or through an ‘‘employee benefit plan’’ as defined in section 3(3) of the Employee Retirement Income Security Act of 1974, 29 U.S.C. 1002(3). The term does not include non-employment related obligations paid by employees through voluntary deductions such as supplemental insurance coverage. (See § 825.209(a).) FLSA means the Fair Labor Standards Act (29 U.S.C. 201 et seq.). Group health plan means any plan of, or contributed to by, an employer (including a self-insured plan) to provide health care (directly or otherwise) to the employer’s employees, former employees, or the families of such employees or former employees. For purposes of FMLA the term ‘‘group health plan’’ shall not include an insurance program providing health coverage under which employees purchase individual policies from insurers provided that: (1) No contributions are made by the employer; (2) Participation in the program is completely voluntary for employees; (3) The sole functions of the employer with respect to the program are, without endorsing the program, to permit the insurer to publicize the program to employees, to collect premiums through payroll deductions and to remit them to the insurer; (4) The employer receives no consideration in the form of cash or otherwise in connection with the program, other than reasonable compensation, excluding any profit, for administrative services actually rendered in connection with payroll deduction; and (5) The premium charged with respect to such coverage does not increase in the event the employment relationship terminates. Health care provider means: PO 00000 Frm 00060 Fmt 4701 Sfmt 4702 (1) The Act defines ‘‘health care provider’’ as: (i) A doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or (ii) Any other person determined by the Secretary to be capable of providing health care services. (2) Others ‘‘capable of providing health care services’’ include only: (i) Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice in the State and performing within the scope of their practice as defined under State law; (ii) Nurse practitioners, nursemidwives, clinical social workers and physician assistants who are authorized to practice under State law and who are performing within the scope of their practice as defined under State law; (iii) Christian Science Practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts. Where an employee or family member is receiving treatment from a Christian Science practitioner, an employee may not object to any requirement from an employer that the employee or family member submit to examination (though not treatment) to obtain a second or third certification from a health care provider other than a Christian Science practitioner except as otherwise provided under applicable State or local law or collective bargaining agreement. (iv) Any health care provider from whom an employer or the employer’s group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits; and (v) A health care provider listed above who practices in a country other than the United States, who is authorized to practice in accordance with the law of that country, and who is performing within the scope of his or her practice as defined under such law. (3) The phrase ‘‘authorized to practice in the State’’ as used in this section means that the provider must be authorized to diagnose and treat physical or mental health conditions. Incapable of self-care means that the individual requires active assistance or supervision to provide daily self-care in several of the ‘‘activities of daily living’’ (ADLs) or ‘‘instrumental activities of daily living’’ (IADLs). Activities of daily living include adaptive activities such as caring appropriately for one’s grooming and hygiene, bathing, dressing and eating. Instrumental activities of E:\FR\FM\15FEP2.SGM 15FEP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc. Instructional employee: See the definition of Teacher in this section. Intermittent leave means leave taken in separate periods of time due to a single illness or injury, rather than for one continuous period of time, and may include leave of periods from an hour or more to several weeks. Examples of intermittent leave would include leave taken on an occasional basis for medical appointments, or leave taken several days at a time spread over a period of six months, such as for chemotherapy. ITO or ITA, invitational travel order (ITO) or invitational travel authorization (ITA), are orders issued by the Armed Forces to a family member to join an injured or ill servicemember at his or her bedside. See also § 825.310(e). Key employee means a salaried FMLA-eligible employee who is among the highest paid 10 percent of all the employees employed by the employer within 75 miles of the employee’s worksite. See also § 825.217. Mental disability: See the definition of Physical or mental disability in this section. Military caregiver leave means leave taken to care for a covered servicemember with a serious injury or illness under the Family and Medical Leave Act of 1993. (See § 825.127.) Next of kin of a covered servicemember means the nearest blood relative other than the covered servicemember’s spouse, parent, son, or daughter, in the following order of priority: blood relatives who have been granted legal custody of the covered servicemember by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the covered servicemember has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under the FMLA. When no such designation is made, and there are multiple family members with the same level of relationship to the covered servicemember, all such family members shall be considered the covered servicemember’s next of kin and may take FMLA leave to provide care to the covered servicemember, either consecutively or simultaneously. When such designation has been made, the designated individual shall be deemed to be the covered servicemember’s only next of kin. See also § 825.127(g)(3). VerDate Mar<15>2010 17:24 Feb 14, 2012 Jkt 226001 Outpatient status means, with respect to a covered servicemember who is a current member of the Armed Forces, the status of a member of the Armed Forces assigned to either a military medical treatment facility as an outpatient; or a unit established for the purpose of providing command and control of members of the Armed Forces receiving medical care as outpatients. See also § 825.127(e). Parent means a biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the employee when the employee was a son or daughter as defined below. This term does not include parents ‘‘in law.’’ Parent of a covered servicemember means a covered servicemember’s biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the covered servicemember. This term does not include parents ‘‘in law.’’ See also § 825.127(g)(2). Person means an individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons, and includes a public agency for purposes of this part. Physical or mental disability means a physical or mental impairment that substantially limits one or more of the major life activities of an individual. Regulations at 29 CFR part 1630, issued by the Equal Employment Opportunity Commission under the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq., as amended, define these terms. Public agency means the government of the United States; the government of a State or political subdivision thereof; any agency of the United States (including the United States Postal Service and Postal Regulatory Commission), a State, or a political subdivision of a State, or any interstate governmental agency. Under section 101(5)(B) of the Act, a public agency is considered to be a ‘‘person’’ engaged in commerce or in an industry or activity affecting commerce within the meaning of the Act. Reserve components of the Armed Forces, for purposes of qualifying exigency leave, include the Army National Guard of the United States, Army Reserve, Navy Reserve, Marine Corps Reserve, Air National Guard of the United States, Air Force Reserve, and Coast Guard Reserve, and retired members of the Regular Armed Forces or Reserves who are called up in support of a contingency operation. See also § 825.126(a)(2)(ii). Reduced leave schedule means a leave schedule that reduces the usual PO 00000 Frm 00061 Fmt 4701 Sfmt 4702 9019 number of hours per workweek, or hours per workday, of an employee. Secretary means the Secretary of Labor or authorized representative. Serious health condition means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in § 825.114 or continuing treatment by a health care provider as defined in § 825.115. Conditions for which cosmetic treatments are administered (such as most treatments for acne or plastic surgery) are not ‘‘serious health conditions’’ unless inpatient hospital care is required or unless complications develop. Restorative dental or plastic surgery after an injury or removal of cancerous growths are serious health conditions provided all the other conditions of this regulation are met. Mental illness or allergies may be serious health conditions, but only if all the conditions of § 825.113 are met. Serious injury or illness means: (1) In the case of a current member of the Armed Forces, including a member of the National Guard or Reserves, an injury or illness that was incurred by the covered servicemember in the line of duty on active duty in the Armed Forces or that existed before the beginning of the member’s active duty and was aggravated by service in the line of duty on active duty in the Armed Forces and that may render the servicemember medically unfit to perform the duties of the member’s office, grade, rank, or rating; and (2) In the case of a covered veteran, (i) A continuation of a serious injury or illness that was incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the servicemember unable to perform the duties of the servicemember’s office, grade, rank, or rating; or (ii) A physical or mental condition for which the covered veteran has received a U.S. Department of Veterans Affairs Service Related Disability Rating (VASRD) of 50% or higher, and such VASRD rating is based, in whole or in part, on the condition precipitating the need for military caregiver leave; or (iii) A physical or mental condition that substantially impairs the covered veteran’s ability to secure or follow a substantially gainful occupation by reason of a service-connected disability or disabilities, or would do so absent treatment. See also § 825.127(c). Son or daughter means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18, or age 18 or older and ‘‘incapable of self-care because of a E:\FR\FM\15FEP2.SGM 15FEP2 9020 Federal Register / Vol. 77, No. 31 / Wednesday, February 15, 2012 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS2 mental or physical disability’’ at the time that FMLA leave is to commence. Son or daughter of a covered servicemember means a covered servicemember’s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the covered servicemember stood in loco parentis, and who is of any age. See also § 825.127(g)(1). Son or daughter on covered active duty or an impending call or order to covered active duty means the employee’s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the employee stood in loco parentis, who is on or has received notice of a call or order to covered active duty, and who is of any age. See also § 825.126(b)(1). VerDate Mar<15>2010 19:56 Feb 14, 2012 Jkt 226001 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. State means any State of the United States or the District of Columbia or any Territory or possession of the United States. Teacher (or employee employed in an instructional capacity, or instructional employee) means an employee employed principally in an instructional capacity by an educational agency or school whose principal function is to teach and instruct students in a class, a small group, or an individual setting, and includes athletic coaches, driving instructors, and special PO 00000 Frm 00062 Fmt 4701 Sfmt 9990 education assistants such as signers for the hearing impaired. The term does not include teacher assistants or aides who do not have as their principal function actual teaching or instructing, nor auxiliary personnel such as counselors, psychologists, curriculum specialists, cafeteria workers, maintenance workers, bus drivers, or other primarily noninstructional employees. TRICARE is the health care program serving active duty servicemembers, National Guard and Reserve members, retirees, their families, survivors, and certain former spouses worldwide. 22. Remove and Reserve Appendices B through E, and G and H to part 825. [FR Doc. 2012–2311 Filed 2–14–12; 8:45 am] BILLING CODE 4510–27–P E:\FR\FM\15FEP2.SGM 15FEP2

Agencies

[Federal Register Volume 77, Number 31 (Wednesday, February 15, 2012)]
[Proposed Rules]
[Pages 8960-9020]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-2311]



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Vol. 77

Wednesday,

No. 31

February 15, 2012

Part II





Department of Labor





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Wage and Hour Division





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29 CFR Part 825





The Family and Medical Leave Act; Proposed Rule

Federal Register / Vol. 77 , No. 31 / Wednesday, February 15, 2012 / 
Proposed Rules

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DEPARTMENT OF LABOR

Wage and Hour Division

29 CFR Part 825

RIN 1215-AB76, RIN 1235-AA03


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 certain regulations of the Family and Medical Leave Act of 1993 
(FMLA or the Act), primarily to implement recent statutory amendments 
to the Act. This Notice of Proposed Rulemaking (NPRM) proposes 
regulations to implement amendments to the military leave provisions of 
the FMLA made by the National Defense Authorization Act for Fiscal Year 
2010, which extends the availability of FMLA leave to family members of 
members of the Regular Armed Forces for qualifying exigencies arising 
out of the servicemember's deployment; defines those deployments 
covered under these provisions; and extends FMLA military caregiver 
leave to family members of certain veterans with serious injuries or 
illnesses. This NPRM also proposes to amend the regulations to 
implement the Airline Flight Crew Technical Corrections Act, which 
established new FMLA leave eligibility requirements for airline flight 
crewmembers and flight attendants. In addition, the proposal includes 
changes concerning the calculation of leave; reorganization of certain 
sections to enhance clarity; the removal of the forms from the 
regulations; and technical corrections of inadvertent drafting errors 
in the current regulations.

DATES: Comments must be received on or before April 16, 2012.

ADDRESSES: You may submit comments, identified by Regulatory 
Information Number (RIN) 1235-AA03, by electronic submission through 
the Federal eRulemaking Portal http://www.regulations.gov. Follow 
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-3510, 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. 
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-3510, 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-AA03 in your 
submission. The RIN identified for this rulemaking changed with the 
publication of the 2010 Spring Regulatory Agenda due to an 
organizational restructuring. The previously identified RIN was 
assigned to the Employment Standards Administration, which no longer 
exists. A new RIN has been assigned to the WHD. Commenters should 
transmit comments early to ensure timely receipt prior to the close of 
the comment period (date identified above); comments submitted 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.

II. Background

    Subsequent to this rulemaking first appearing on the Department's 
Fall 2009 Regulatory Agenda, the FMLA was amended by the National 
Defense Authorization Act for Fiscal Year 2010 (FY 2010 NDAA), Public 
Law 111-84, and the Airline Flight Crew Technical Corrections Act 
(AFCTCA), Public Law 111-119. This rulemaking, therefore, proposes 
regulatory changes to implement these statutory amendments. The 
Department continues to review the impact of regulatory revisions 
published in the Family and Medical Leave Act of 1993, Final Rule on 
November 17, 2008 (2008 final rule). 73 FR 67934.

A. What the FMLA Provides

    The Family and Medical Leave Act of 1993, 29 U.S.C. 2601 et seq., 
was enacted on February 5, 1993, and became effective for most covered 
employers on August 5, 1993. As originally enacted, the FMLA 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; or when the employee is unable to work due 
to the employee's own serious health condition.
    The FMLA was amended in January 2008 by enactment of the National

[[Page 8961]]

Defense Authorization Act for FY 2008 (FY 2008 NDAA). Public Law 110-
181. Section 585(a) of FY 2008 NDAA expanded the FMLA to allow eligible 
employees of covered employers to take FMLA leave because of any 
qualifying exigency (as determined by the Secretary of Labor) when that 
employee's spouse, son, daughter, or parent is a member of the National 
Guard or Reserves who is on, or has been notified of an impending call 
or order to, active duty in the Armed Forces in support of a 
contingency operation (referred to as ``qualifying exigency leave''). 
Additionally, the FY 2008 NDAA amendments provided up to 26 workweeks 
of leave in a ``single 12-month period'' for an eligible employee to 
care for a covered servicemember with a serious injury or illness if 
the employee is the spouse, son, daughter, parent, or next of kin of 
the covered servicemember (referred to as ``military caregiver 
leave''). These two leave entitlements are collectively referred to as 
``military family leave''.
    The FMLA was again amended in 2009 with the enactment of the FY 
2010 NDAA on October 28, 2009, and the AFCTCA on December 21, 2009. 
Section 565(a) of the FY 2010 NDAA amended the military family leave 
provisions of the FMLA by extending qualifying exigency leave to 
eligible family members of the Regular Armed Forces, and military 
caregiver leave to include care provided to certain veterans. The 
AFCTCA amended the FMLA to include special eligibility requirements for 
airline flight crewmembers and flight attendants (referred to 
collectively as ``airline flight crew employees''). A new definition of 
hours of service as it applies to airline flight crew employees was 
included in the eligibility provisions. Each of these provisions is 
discussed in detail in the section-by-section analysis that follows.
    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. Title III established a temporary Commission on Leave to 
conduct a study and report on existing and proposed policies on leave 
and the costs, benefits, and impact on productivity of such policies. 
Title IV contains provisions governing the effect of the FMLA on more 
generous leave policies, other laws, and existing employment benefits. 
Finally, Title V originally extended the leave provisions to certain 
employees of the U.S. Senate and House of Representatives; however, 
such coverage was repealed and replaced by the Congressional 
Accountability Act of 1995. 2 U.S.C. 1301.

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 (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 interim regulations. 58 FR 45433. 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.
    On December 1, 2006, the Department published a Request for 
Information (RFI) in the Federal Register requesting public comment on 
its experiences with and observations of the Department's 
administration of the FMLA and the effectiveness of the regulations. 71 
FR 69504. The Department received comments from workers, family 
members, employers, academics, and other interested parties, ranging 
from personal accounts, surveys, and legal reviews, to academic studies 
and recommendations for regulatory and statutory changes to the FMLA. 
The Department published its Report on the comments in the Federal 
Register 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 RFI. 73 FR 7876. The 
Department also sought comments on the recently enacted military family 
leave statutory provisions. 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.

D. Updates to the Military Family Leave Provisions

    Section 565(a) of the FY 2010 NDAA, enacted on October 28, 2009, 
amends the military family leave provisions of the FMLA. Public Law 
111-84. The FY 2010 NDAA expands the availability of qualifying 
exigency leave and military caregiver leave. Qualifying exigency leave, 
which was made available to family members of the National Guard and 
Reserve components under the FY 2008 NDAA, is expanded to include 
family members of the Regular Armed

[[Page 8962]]

Forces. The entitlement to qualifying exigency leave is expanded by 
substituting the term ``covered active duty'' for ``active duty'' and 
defining covered active duty for a member of the Regular Armed Forces 
as ``duty during the deployment of the member with the Armed Forces to 
a foreign country'', and for a member of the Reserve components of the 
Armed Forces as ``duty during the deployment of the member with the 
Armed Forces to a foreign country under a call or order to active duty 
under a provision of law referred to in section 101(a)(13)(B) of title 
10, United States Code.'' 29 U.S.C. 2611(14).\1\ Prior to the FY 2010 
NDAA amendments, there was no requirement that members of the National 
Guard and Reserves be deployed to a foreign country.
---------------------------------------------------------------------------

    \1\ As with the FY 2008 NDAA, the FY 2010 NDAA references 10 
U.S.C. 101(a)(13)(B), which covers call ups of the National Guard 
and Reserves and certain retired members of the Regular Armed Forces 
and Reserves in support of contingency operations. 73 FR 67954-55. 
For simplicity, the terms ``National Guard and Reserve'' and 
``Reserve components'' are used interchangeably throughout this 
document and refer to these categories of military members.
---------------------------------------------------------------------------

    The FY 2010 NDAA amendments expand the definition of a serious 
injury or illness for military caregiver leave for current members of 
the Armed Forces to include an injury or illness that existed prior to 
service and was aggravated in the line of duty on active duty. 29 
U.S.C. 2611(18)(A). These amendments also expand the military caregiver 
leave provisions of the FMLA to allow family members to take military 
caregiver leave to care for certain veterans. The definition of a 
covered servicemember, which is the term the Act uses to indicate the 
group of military members for whom military caregiver leave may be 
taken, is broadened to include a veteran with a serious injury or 
illness who is receiving medical treatment, recuperation, or therapy, 
if the veteran was a member of the Armed Forces at any time during the 
period of five years preceding the date of the medical treatment, 
recuperation, or therapy. 29 U.S.C. 2611(15)(B). The amendments define 
a serious injury or illness for a veteran as a ``qualifying (as defined 
by the Secretary of Labor) injury or illness that was incurred by the 
member in line of duty on active duty in the Armed Forces (or existed 
before the beginning of the member's active duty and was aggravated by 
service in line of duty on active duty in the Armed Forces) and that 
manifested itself before or after the member became a veteran.'' 29 
U.S.C. 2611(18)(B).
    As was the case with the FY 2008 NDAA, the FY 2010 NDAA is silent 
as to the effective date of the FMLA amendments. Because the FY 2008 
NDAA required the Secretary of Labor to define the term ``qualifying 
exigency'', the Department took the position that employers were not 
obligated to provide qualifying exigency leave to employees until the 
Department defined the term through regulation. 73 FR 7925. In 
contrast, the Department viewed the military caregiver leave provisions 
of the FY 2008 NDAA as being effective as of January 28, 2008, the 
signing date of the amendment. Id. Like the FY 2008 NDAA, the FY 2010 
NDAA also requires the Secretary of Labor to define a key term in the 
amendment--``serious injury or illness of a veteran''. Public Law 111-
84, sec. 565(a)(3); 29 U.S.C. 2611(18)(B). It is the Department's 
position that employers are not required to provide employees with 
military caregiver leave to care for a veteran until the Department 
defines a qualifying serious injury or illness of a veteran through 
regulation. However, employers are not prohibited from providing leave 
to employees to care for an injured or ill veteran if they choose to do 
so before the Department issues a final rule defining those terms, 
although any such leave would not be FMLA-protected and would not count 
against the employees' FMLA entitlement. It is also the Department's 
position that the provisions of the FY 2010 NDAA expanding qualifying 
exigency leave to cover qualifying exigencies arising from the foreign 
deployment of a family member in the Regular Armed Forces became 
effective on the date of enactment, October 29, 2009.

E. Amendments to Eligibility Criteria for Airline Flight Crewmembers 
and Flight Attendants

    On December 21, 2009, the AFCTCA was enacted, establishing a 
special minimum hours of service eligibility requirement for airline 
flight crew employees. The AFCTCA provides that an airline flight crew 
employee will meet the hours of service eligibility requirement if he 
or she has worked or been paid for not less than 60 percent of the 
applicable total monthly guarantee (or its equivalent) and has worked 
or been paid for not less than 504 hours (not including personal 
commute time or time spent on vacation, medical, or sick leave) during 
the previous 12 months. Airline flight crew employees continue to be 
subject to the FMLA's other eligibility requirements.
    The AFCTCA is silent as to its effective date. Because the AFCTCA 
is explicit about how to calculate the hours of service requirement for 
airline flight crew employees, it is the Department's position that the 
amendment became effective on the date of enactment. While the AFCTCA 
authorizes the Department to promulgate regulations on how to calculate 
the FMLA leave entitlement for airline flight crew employees, the 
authorization is permissive and does not require the Department to 
engage in rulemaking (unlike the FY 2010 NDAA provision requiring the 
Department to define serious injury or illness of a veteran).
    Because the Department is not statutorily required to issue 
regulations to effectuate the AFCTCA, and employers can provide leave 
to airline flight crew employees under the current FMLA regulations, it 
is the Department's position that employees became entitled to take 
leave under the AFCTCA as of December 21, 2009. Until the Department 
issues a final rule specifically addressing calculating FMLA leave 
usage for flight crew employees, the Department will exercise its 
discretion in assessing employer compliance, in light of the individual 
facts and circumstances, with current Sec.  825.205.

F. Regulatory Look Back Review

    In complying with Executive Order 13563, ``Improving Regulation and 
Regulatory Review,'' the Department sought public comment in March 2011 
to inform its design of a framework to review its significant rules. 
The review would determine whether these rules are obsolete, 
unnecessary, unjustified, excessively burdensome, counterproductive, or 
duplicative of other Federal regulations. Specifically, the Department 
sought comment on which regulations should be considered for review, 
expansion, or modification. The Department utilized an interactive Web 
site (www.dol.gov/regulations/regreview.htm) and published a Request 
for Information in the Federal Register (76 FR 15224) for the public to 
provide comments.
    The Department received three comments concerning the FMLA. The 
first commenter requested clarification on Sec.  825.218, regarding 
substantial and grievous economic injury. Upon review of the comment, 
the Department determined that there was no need to clarify this 
section through regulatory change.
    The second comment the Department received concerned Sec.  825.204, 
``Transfer of an Employee to an Alternative Position During 
Intermittent Leave or Reduced Schedule Leave.'' The commenter suggested 
extending the employer's ability to transfer an employee to an 
alternative positive for

[[Page 8963]]

intermittent leave that is foreseen but unscheduled. The Department 
responded to similar comments in the 2008 final rule. As the Department 
noted at that time, by expressly permitting transfers in cases of 
intermittent or reduced schedule leave ``that is foreseeable based on 
planned medical treatment,'' 29 U.S.C. 2612(b)(2), the statutory 
language strongly suggests that this is the only situation where such 
transfers are allowed. 73 FR 67975. The Department continues to find no 
statutory basis to permit transfers to an alternative position for 
employees taking unscheduled or unforeseeable intermittent leave, and 
declines to expand the situations in which an employer may temporarily 
transfer an employee to an alternative position. Id.
    The last comment that the Department received suggested excluding 
from the Act's protections medical conditions that the commenter 
believes are subjectively determined. The regulations provide an 
objective definition of ``serious health condition'' as well as a 
process for employers to request a certification of a serious health 
condition from the employee's (or family member's) health care 
practitioner. Additionally, where the employer has reason to doubt the 
validity of the initial certification, the employer may require a 
second and, if necessary, third opinion from a health care 
practitioner. Given the procedures available for ensuring certification 
of a serious health condition by a health care practitioner, the 
Department does not believe that issuing further regulatory changes at 
this time is warranted.

III. Section-by-Section Analysis of Proposed Changes to the FMLA 
Regulations

    The following is a section-by-section analysis of the proposed 
revisions to the FMLA regulations. The primary sections of the 
regulations with proposed revisions to implement the FY 2010 NDAA 
amendments are: Sec.  825.126 (Leave because of a qualifying exigency); 
Sec.  825.127 (Leave to care for a covered servicemember with a serious 
injury or illness); Sec.  825.309 (Certification for leave taken 
because of a qualifying exigency); and Sec.  825.310 (Certification for 
leave taken to care for a covered servicemember (military caregiver 
leave)). Less substantive changes are proposed to Sec.  825.122 
(Definitions of spouse, parent, son or daughter, next of kin of a 
covered servicemember, adoption, foster care, son or daughter on active 
duty or call to active duty status, son or daughter of a covered 
servicemember, and parent of a covered servicemember) and Sec.  825.800 
(Definitions) to reflect new definitions related to military family 
leave. The primary sections of the regulations with proposed revisions 
to implement the AFCTCA are: Sec.  825.110 (Eligible employee); Sec.  
825.205 (Increments of FMLA leave for intermittent or reduced schedule 
leave); Sec.  825.500 (Record-keeping requirements); and Sec.  825.800 
(Definitions) to include definitions specific to airline flight crew 
employees.
    The Department further proposes to move the definitions section of 
the regulations from Sec.  825.800 to Sec.  825.102, which is currently 
reserved. The Department believes that placing the definitions section 
at the beginning of the regulations is more helpful to the reader, and 
consistent with other regulations implementing statutes administered by 
the WHD. Unless specifically discussed, no further substantive changes 
are proposed to this section.
    The Department intends to make corresponding minor changes to the 
FMLA poster (WHD publication 1420), the Notice of Eligibility and 
Rights and Responsibilities (Form WHD-381), the Certification for 
Qualifying Exigency Leave for Military Family Leave (Form WHD-384), and 
the Certification for Serious Injury or Illness of a Covered 
Servicemember for Military Family Leave (Form WHD-385) to reflect the 
FY 2010 NDAA amendments and the AFCTCA. The Department also intends to 
develop a new form for the certification for the serious injury or 
illness of a covered veteran. The Department also proposes to remove 
the optional-use forms and notices from the regulations' Appendices. 
The removed forms and notices are medical certification forms WH-380-E 
(Certification of Health Care Provider--Employee), WH-380-F 
(Certification of Health Care Provider--Family Member), WH-384 
(Certification of Qualifying Exigency for Military Family Leave), and 
WH-385 (Certification for Serious Injury or Illness of Covered 
Servicemember for Military Family Leave); notification forms WH-381 
(Notice of Eligibility and Rights & Responsibilities) and WH-382 
(Designation Notice to Employee of FMLA Leave); and the Notice to 
Employees of Rights under FMLA (WH Publication 1420).
    The Department's prototype forms are intended to facilitate the 
information collection requirements of the FMLA. These information 
collections are subject to the requirements of the Paperwork Reduction 
Act of 1995 (PRA). The Department, as part of its continuing effort to 
reduce paperwork and respondent burden, conducts a pre-clearance 
consultation program to provide the general public and Federal agencies 
with an opportunity to comment on proposed and/or continuing 
collections of information every three years in accordance with the 
requirements of the PRA. Substantive changes to the forms as they 
appear in the Appendices require additional and separate rulemaking 
activities.
    The PRA clearance process has sometimes resulted in updates to the 
forms that differed from the version of the forms that appeared in the 
Appendices to the regulations. The Department believes that multiple 
versions of the forms have created needless confusion for the public, 
and in an effort to lessen this confusion the Department proposes to 
remove the forms from the regulations. The forms will continue to be 
available on the WHD Web site. The Department believes that removing 
the forms from the regulations, and thereby streamlining the clearance 
process, will permit the forms to be more expeditiously amended in 
response to statutory and other changes, as well as suggestions from 
the public. This will ensure that the most accurate and up-to-date 
forms are available to the public. Although the Department is proposing 
to remove the forms from the regulations, this proposed change does not 
alter the Department's belief that the forms facilitate employer and 
employee compliance with their respective obligations under the FMLA. 
Employers are permitted to use forms other than those issued by the 
Department so long as they do not require information beyond that 
specified in the regulations. See 29 CFR Sec. Sec.  825.306, 825.309, 
825.310. However, if an employee provides sufficient certification 
regardless of format, no additional information may be requested.
    Minor changes to more accurately reflect the new military family 
leave and airline flightcrew employee eligibility provisions or to 
delete references to Appendices for prototype forms or notices, are 
proposed at: Sec. Sec.  825.100, 825.101, 825.107, 825.112, 825.200, 
825.213, 825.300, 825.302, 825.303 and 825.306. The Department also 
proposes to correct inadvertent drafting errors that were made in the 
2008 final rule, including correcting the cross-references in current 
Sec.  825.200(g) and (f), and inserting the word ``spouse'' in the 
first lines of Sec.  825.202(b) and (b)(1). The Department also 
proposes to include the word ``the'' in the statutory phrase ``in line 
of duty'' where used in the regulations. The URL for the WHD Web site 
has also been updated to link

[[Page 8964]]

viewers directly to the WHD site. This proposed change appears in: 
Sec. Sec.  825.300, 825.306, and 825.309. These proposed changes are 
not addressed in the section-by-section analysis. The addition of 
definitions to current Sec.  825.800 and its relocation to reserved 
Sec.  825.102 is also not addressed in the section-by-section analysis.

A. Revisions To Implement the FY 2010 NDAA amendments

1. Section 825.122--Definitions of Spouse, Parent, Son or Daughter, 
Next of Kin of a Covered Servicemember, Adoption, Foster Care, Son or 
Daughter on Active Duty or Call or Order to Active Duty Status, Son or 
Daughter of a Covered Servicemember, and Parent of a Covered 
Servicemember
    The Department proposes to add a definition of ``covered 
servicemember'' as new paragraph (a) of this section to reflect the 
addition of covered veterans as covered servicemembers under the FY 
2010 NDAA. As a result, the Department proposes to renumber the 
paragraphs that follow. The Department also proposes to change the term 
``active duty'' to ``covered active duty'' in each place it appears in 
both the title of this section and in paragraph (g), and to update the 
reference in this paragraph to proposed Sec.  825.126(a)(5).
2. Section 825.126--Leave Because of a Qualifying Exigency
    Section 585 of the FY 2008 NDAA provided that eligible employees of 
covered employers may take FMLA leave for any qualifying exigency 
arising out of the fact that the employee's spouse, son, daughter, or 
parent is on active duty or has been notified of an impending call or 
order to active duty in support of a contingency operation. Public Law 
110-181; Sec.  585(a). The FY 2008 NDAA defined ``active duty'' as a 
call or order to active duty under a provision of law referred to in 10 
U.S.C. 101(a)(13)(B). Id. The provisions referred to in 10 U.S.C. 
101(a)(13)(B) are: sections 688, 12301(a), 12302, 12304, 12305, and 
12406 of Title 10 of the United States Code; Chapter 15 of Title 10 of 
the United States Code; and any other provision of law during a war or 
during a national emergency declared by the President or Congress. 
These provisions are limited to duty by members of the Reserve 
components, the National Guard, and certain retired members of the 
Regular Armed Forces and retired Reserve under a call or order to 
active duty. The FY 2008 NDAA amendment thus limited the availability 
of qualifying exigency leave to family members of members of the 
Reserve components. The entitlement to qualifying exigency leave did 
not extend to family members of the Regular Armed Forces on active duty 
status because members of the Regular Armed Forces either do not serve 
``under a call or order to active duty'' or are not identified in the 
provisions of law referred to in 10 U.S.C. 101(a)(13)(B). 73 FR 67954-
55.
    The FY 2010 NDAA further amends the FMLA to permit an eligible 
employee to take FMLA leave for any qualifying exigency arising out of 
the fact that the employee's spouse, son, daughter, or parent is on 
covered active duty, or has been notified of an impending call or order 
to covered active duty in the Armed Forces. Public Law 111-84, Sec.  
565(a)(1)(B); see 29 U.S.C. 2612(a)(1)(E). The FY 2010 NDAA provisions 
define ``covered active duty'' to include duty by members of the 
Regular Armed Forces during deployment to a foreign country, and duty 
by members of the Reserve components during deployment to a foreign 
country under a call or order to active duty under a provision of law 
referred to in section 101(13)(B) of title 10, United States Code. 29 
U.S.C. 2611(14). Thus, these new provisions entitle qualifying family 
members to FMLA leave for qualifying exigencies arising from foreign 
deployments of Regular Armed Forces members, and add a foreign 
deployment requirement to the type of call or order to active duty 
required for the Reserve components of the Armed Forces.
    Section 825.126 is currently organized into two parts: (a) The 
specific circumstances under which qualifying exigency leave may be 
taken; and (b) an employee's entitlement to qualifying exigency leave. 
The Department proposes to keep these two provisions, but reverse the 
order in which they appear. The Department has learned from employers 
and employees that there is confusion about the military family 
provisions. The Department believes that it is more logical to outline 
an employee's entitlement to qualifying exigency leave first, and then 
to specify the circumstances under which the employee may take 
qualifying exigency leave. The Department expects that this reordering 
will be less confusing to the public. Thus, proposed Sec.  825.126(a) 
covers an employee's entitlement to qualifying exigency leave 
(currently addressed in Sec.  825.126(b)) and proposed Sec.  825.126(b) 
identifies the specific circumstances under which qualifying exigency 
leave may be taken (currently addressed in Sec.  825.126(a)). As 
discussed below, the Department further proposes to revise Sec.  
825.126 to incorporate the FY 2010 NDAA amendments.
    The Department proposes to substitute in this section (as well as 
throughout the regulations wherever the term appears) ``covered active 
duty'' for ``active duty'' to incorporate the FY 2010 NDAA statutory 
language. The Department also proposes to delete references in this 
section (as well as throughout the regulations wherever the term 
appears) to ``covered military member'' and instead use the generic 
term ``military member'' or ``member'' to refer to members of the Armed 
Forces on covered active duty as defined by the statute. As discussed 
above, the FY 2008 NDAA restricted entitlement to qualifying exigency 
leave to an employee whose parent, spouse, son, or daughter is a member 
of the National Guard and Reserves under an impending call or order to 
active duty in support of a contingency operation. In the 2008 final 
rule, the Department introduced the term ``covered military member'' to 
reflect that the military member must be the parent, spouse, son or 
daughter of the employee. This term has also come to reflect the 
restrictive nature of qualifying exigency leave under the FY 2008 NDAA, 
i.e., that such leave was limited to qualifying family members of 
Reserve component members. The FY 2010 NDAA amendment extends the 
entitlement for qualifying exigency leave to family members of Regular 
Armed Forces members, and therefore, the limiting term ``covered 
military member'' is no longer relevant and may be unnecessarily 
confusing. Similarly, the use of the term ``covered active duty'' 
rather than ``active duty'' will more accurately reflect the fact that 
there are limitations on the types of active duty that can give rise to 
qualifying exigency leave. The Department intends to make the 
provisions of qualifying exigency leave more understandable to the 
public by using the statutory term ``covered active duty'' and 
referring generically to the military member throughout the regulation, 
and seeks comment on this proposed change.
    Current Sec.  825.126(a) states the statutory entitlement that 
eligible employees may take FMLA leave while the employee's spouse, 
son, daughter, or parent is on active duty or call to active duty 
status (this paragraph continues by listing the specific qualifying 
exigencies for which leave may be taken). Similarly, proposed Sec.  
825.126(a) sets out the statutory entitlement that an eligible employee 
may take leave for any qualifying exigency arising out of the covered 
active duty or call to covered active duty status of the employee's

[[Page 8965]]

spouse, son, daughter, or parent. The list of specific qualifying 
exigencies in current paragraph (a) is moved to proposed paragraph (b).
    Proposed Sec.  825.126(a)(1) defines ``covered active duty or call 
to covered active duty'' status for a member of the Regular Armed 
Forces as ``duty under a call or order to active duty (or notification 
of an impending call or order to covered active duty) during the 
deployment of the member with the Armed Forces to a foreign country,'' 
and states that the active duty orders will generally specify if the 
member's deployment is to a foreign country. In accordance with the FY 
2010 NDAA, the Department deleted the statement in current Sec.  
825.126(b)(2)(i) that family members of members of the Regular Armed 
Forces are not entitled to qualifying exigency leave.
    Proposed Sec.  825.126(a)(2) defines ``covered active duty or call 
to covered active duty'' status for a member of the Reserve components 
as duty under a call or order to active duty (or notification of an 
impending call or order to active duty) during the deployment of the 
member to a foreign country under a Federal call or order to active 
duty in support of a contingency operation pursuant to the provisions 
of law referred to in 10 U.S.C. 101(a)(13)(B). The provisions referred 
to in 10 U.S.C. 101(a)(13)(B) are 10 U.S.C. 688, 12301(a), 12302, 
12304, 12305, 12406; 10 U.S.C. chapter 15; and any other provision of 
law during a war or during a national emergency declared by the 
President or Congress. While FY 2010 NDAA struck the definition of 
``contingency operation'' from the FMLA and deleted the reference to 
``contingency operation'' in 29 U.S.C. 2612(a)(1)(E), the Department 
believes that the reference to 10 U.S.C. 101(a)(13)(B) in the 
definition of covered active duty for members of the Reserve components 
continues to require that members of the Reserve components be called 
to duty in support of a contingency operation in order for their family 
members to be entitled to qualifying exigency leave. Therefore, 
proposed Sec.  825.126(a)(2) maintains the language in current Sec.  
825.126(b)(2) regarding duty in support of a contingency operation. The 
Department also proposes to use the word ``Federal'' in proposed 
paragraph Sec.  825.126(a)(2) in describing the covered calls or orders 
to active duty in order to make clear that only Federal calls to duty 
will meet the definition of covered active duty.
    Proposed paragraph Sec.  825.126(a)(2)(i) lists the specific 
Reserve components currently found in Sec.  825.126(b)(2)(i). Proposed 
paragraph Sec.  825.126(a)(2)(ii) follows current Sec.  825.126(b)(3) 
in that it provides that the active duty orders of a member of the 
Reserve components will generally specify if the covered active duty 
military member is serving in support of a contingency operation by 
citing the relevant section of Title 10 of the United States Code and/
or by reference to the specific name of the contingency operation as is 
stated in current Sec.  825.126(b)(3). Proposed Sec.  825.126(a)(2)(ii) 
also states that the active duty orders will specify that the 
deployment is to a foreign country.
    The Department proposes in paragraph Sec.  825.126(a)(3) to define 
deployment of the member with the Armed Forces to a foreign country as 
deployment to areas outside of the United States, the District of 
Columbia, or any Territory or possession of the United States, 
including deployment in international waters. This definition is 
consistent with the Department's understanding of the term 
``deployment'' based on consultations with the Department of Defense 
(DOD). The Department understands that servicemembers are assigned to a 
home station \2\ and deployment is the relocation of forces and 
materials from that home station to an operational area. The term does 
not include reassignments to a new duty station or deployment for 
training exercises.
---------------------------------------------------------------------------

    \2\ According to The Joint Publication 1-02, Department of 
Defense Dictionary of Military and Associated Terms, 8 November 2010 
(as amended through 15 August 2011), ``home station'' is defined as 
the permanent location of active duty units and Reserve Component 
units (e.g,, location of armory or reserve center).
---------------------------------------------------------------------------

    In addition, the definition of ``deployment'' in proposed paragraph 
Sec.  825.126(a)(3) includes deployment of the military member to 
active duty in international waters. The Department understands 
Congress to have intended to extend the entitlement of qualifying 
exigency leave to family members of all branches of the military 
equally. The Department seeks to ensure that family members of the 
Navy, Coast Guard, and other military members deployed to duty in 
international waters have access to qualifying exigency leave. The 
Department seeks comment on the types of duty assignments for members 
of the Navy and Coast Guard that will satisfy the definition of 
deployment.
    The Department proposes in Sec.  825.126(a)(4) to specify, as 
current Sec.  825.126(b)(2)(ii) does, that covered deployments are 
limited to Federal calls to active duty. Finally, the Department 
proposes to move the definition of ``son or daughter on active duty or 
call to active duty status'' currently located at Sec.  825.126(b)(1) 
to paragraph Sec.  825.126(a)(5).
    Current Sec.  825.126(a) lists the reasons, divided into eight 
categories, for which an eligible employee may take qualifying exigency 
leave. The qualifying exigency leave categories are: (1) Short-notice 
deployment, (2) Military events and related activities, (3) Childcare 
and school activities, (4) Financial and legal arrangements, (5) 
Counseling, (6) Rest and recuperation, (7) Post-deployment activities, 
and (8) Additional activities. The Department proposes to move this 
list to Sec.  825.126(b); the paragraph numbers that correspond to the 
eight categories will remain the same. As noted above, the Department 
proposes to replace the term ``active duty'' with ``covered active 
duty'' and ``covered military member'' with ``military member'' or 
``member'' throughout this section. Where no additional changes are 
made within a category of qualifying exigency, and the Department is 
not specifically requesting additional information, that category is 
not discussed further in this proposal.
    Current Sec.  825.126(a)(1) sets forth the requirements for Short-
notice deployment qualifying exigency leave. Leave taken for this 
purpose may be used for a period of seven calendar days beginning with 
the date the military member is notified of an impending call or order 
to covered active duty. The Department seeks public comment on whether 
the seven calendar day period remains appropriate for this type of 
qualifying exigency.
    Current Sec.  825.126(a)(3), Childcare and school activities, 
allows eligible employees to take qualifying exigency leave to arrange 
childcare or attend certain school activities for a military member's 
son or daughter. The Department proposes to delete repetitive text 
throughout this paragraph identifying the relationship between the 
child and the military member. Instead, proposed paragraph Sec.  
825.126(b)(3) states that for purposes of the childcare and school 
activities leave listed in Sec.  825.126(b)(3)(i) through (iv), the 
child must be ``the military member's biological, adopted, or foster 
child, stepchild, legal ward, or child for whom the military member 
stands in loco parentis, who is either under age 18 or age 18 or older 
and incapable of self-care because of a mental or physical disability 
at the time that FMLA leave is to commence.'' Proposed Sec.  
825.126(b)(3) also adds language to clarify that, as with all instances 
of qualifying exigency leave, the military member must be the spouse, 
son, daughter, or parent of the employee

[[Page 8966]]

requesting leave. The Department believes this clarifying language is 
necessary because of this section's unique relationship requirements. 
While the military member must be the spouse, parent, or son or 
daughter of the eligible employee, the child for whom childcare leave 
is sought need not be a child of the employee requesting leave. For 
example, the employee may be the mother of the military member and may 
need qualifying exigency childcare and school activities leave for the 
military member's child.
    Current Sec.  825.126(a)(6), Rest and recuperation, allows an 
eligible employee to take up to five days of leave to spend time with a 
military member on rest and recuperation leave during a period of 
deployment. The Department proposes in Sec.  825.126(b)(6) to 
capitalize Rest and Recuperation to reflect that this type of leave 
corresponds directly to the DOD Rest and Recuperation leave programs 
(e.g., USCENTCOM R & R leave). The Department also proposes to expand 
the maximum duration of Rest and Recuperation qualifying exigency leave 
from five to 15 days. The DOD has advised the Department that the 
actual number of days of Rest and Recuperation leave provided by the 
military varies, with some military members receiving as many as 15 
days, depending upon the length of their deployment. The Department 
proposes to allow the amount of leave an employee may take for Rest and 
Recuperation qualifying exigency leave to equal that provided to the 
military member, up to a maximum of 15 days. The Department has 
received information from employees indicating that the amount of time 
granted to a military member for Rest and Recuperation leave is 
generally longer than the five days permitted by the regulations, and 
due to the nature of the deployments, five days, as permitted by the 
current regulations, is an insufficient amount of time for leave. As 
noted in the 2008 final rule, there are limited opportunities available 
for military members to spend time with their families while on active 
duty and it is important to foster strong relationships among military 
families. 73 FR 67961. The Department believes it is appropriate to 
make the availability of this type of FMLA-qualifying exigency leave 
consistent with the leave actually provided by the military to the 
member on covered active duty. The Department seeks comment on the 
expansion of Rest and Recuperation qualifying exigency leave and 
whether the proposed 15 day period is sufficient in all instances.
    The Department is also proposing to add language to Sec.  
825.126(7), Post-deployment activities. Current Sec.  825.126(b)(7)(ii) 
permits an employee to take qualifying exigency leave to address issues 
that arise from the death of a military member while on covered active 
duty status. The Department proposes to add attending funeral services 
as an additional example to the activities that are covered by such 
leave.
    The Department proposes no additional qualifying exigencies for 
which FMLA leave may be taken, but invites comment on whether 
additional qualifying exigencies should be added in light of the 
extension of this leave entitlement to family members of members of the 
Regular Armed Forces. The Department notes that the categories of leave 
in the current and proposed regulations include activities that may 
take place in advance of deployment (pre-deployment activities), during 
deployment, and limited activities that occur after deployment has 
ended (post-deployment activities). While the FY 2010 NDAA defines 
``covered active duty'' as ``duty during the deployment of the 
member,'' the Department continues to believe that it is appropriate to 
include certain pre-deployment activities to reflect Congressional 
intent to include exigencies arising from notification of ``an 
impending call or order to covered active duty''. 29 U.S.C. 
2612(a)(1)(E) (emphasis added). Similarly, the Department continues to 
believe that it is appropriate to include as qualifying exigencies 
limited post-deployment activities the need for which immediately and 
foreseeably arise from the military member's covered active duty. This 
interpretation and reasoning is consistent with that outlined in the 
2008 final rule. 73 FR 67961.
    No other changes are proposed to Sec.  825.126.
3. Section 825.127 Leave To Care for a Covered Servicemember With a 
Serious Injury or Illness
    Section 585(a) of the FY 2008 NDAA amended the FMLA to allow an 
eligible employee who is a covered servicemember's spouse, son, 
daughter, parent, or next of kin to take up to 26 workweeks of leave 
during a ``single 12-month period'' to care for a servicemember 
receiving treatment for a serious injury or illness (``military 
caregiver leave''). Such leave can be taken to provide care to a 
current member of the Armed Forces, including the National Guard and 
Reserves. These provisions were incorporated in current Sec.  825.127, 
which explains an employee's entitlement to military caregiver leave 
and the specific circumstances under which military caregiver leave may 
be taken.
    Section 565(a) of the FY 2010 NDAA further amends the FMLA to 
revise the definition of ``covered servicemember'' to include certain 
veterans and to expand coverage for military caregiver leave to 
eligible employees caring for such veterans with a qualifying (as 
defined by the Secretary of Labor) injury or illness. 29 U.S.C. 
2611(15)(B). It also amends the FMLA to revise the definition of 
serious injury or illness for current members of the Armed Forces to 
include conditions that existed before the covered servicemembers' 
active duty but were aggravated by service in the line of duty on 
active duty. 29 U.S.C. 2611(18)(A). A serious injury or illness for a 
veteran similarly includes conditions that existed before the veteran's 
active duty but were aggravated by service in the line of duty on 
active duty and that manifested before or after the servicemember 
became a veteran. 29 U.S.C. 2611(18)(B).
    The Department proposes to reorganize Sec.  825.127 to reflect the 
substantive changes to the military caregiver leave provisions pursuant 
to the FY 2010 NDAA amendments. In addition, the proposal adds the term 
``military caregiver leave'' to the title of this section for clarity. 
Current paragraph Sec.  825.127(b), which defines the family members 
qualified to take caregiver leave, is moved to proposed paragraph Sec.  
825.127(d). Current paragraph Sec.  825.127(d), which addresses 
circumstances when a husband and wife who are both eligible for FMLA 
leave work for the same employer, is moved to proposed Sec.  
825.127(f). Because no substantive changes are proposed to these 
sections they are not discussed further.
    Current Sec.  825.127(a) provides that an eligible employee may 
take FMLA leave to care for a current member of the Armed Forces, 
including National Guard and Reserves members, with a serious injury or 
illness incurred in the line of duty on active duty for which the 
servicemember is undergoing medical treatment, recuperation, or 
therapy, is otherwise in outpatient status, or is otherwise on the 
temporary disability retired list. This section of the current 
regulations incorporates the statutory definition of a covered 
servicemember pursuant to the FY 2008 NDAA, and states that the 
definition of a covered servicemember does not include former members 
of the Regular Armed Forces, former members of the National Guard and 
Reserves, and members on the permanent disability retired list. 
Consistent with the FY 2010 NDAA

[[Page 8967]]

expansion of military caregiver leave to care for certain veterans, the 
current statement that military caregiver leave does not apply to 
former members of the military is deleted from proposed paragraph (a). 
The definitions set forth in current paragraphs (a)(1) and (2) are 
incorporated in proposed paragraphs (b) and (c), discussed below. 
Proposed paragraph Sec.  825.127(a) simply states that eligible 
employees are entitled to FMLA leave to care for a covered 
servicemember with a serious injury or illness.
    Proposed Sec.  825.127(b) provides the definition of covered 
servicemember for current members of the Armed Forces and for covered 
veterans. Proposed Sec.  825.127(b)(1) defines covered servicemember as 
it applies to current members of the Armed Forces, including members of 
the National Guard or Reserves. This definition mirrors the statutory 
definition. 29 U.S.C. 2611(15)(A). This paragraph also incorporates the 
definition of ``outpatient status'' from current Sec.  825.127(a)(2), 
which is applicable only to current members of the Armed Forces.
    Proposed Sec.  825.127(b)(2) defines covered servicemember, as it 
applies to veterans, to mean a covered veteran who is undergoing 
medical treatment, recuperation, or therapy for a serious injury or 
illness. It further defines a covered veteran as an individual who was 
discharged or released under conditions other than dishonorable at any 
time during the five-year period prior to the first date the eligible 
employee takes FMLA leave to care for the covered veteran. This 
definition combines the FY 2010 NDAA statutory definition of a 
``veteran'' (which incorporates the definition of veteran in 38 U.S.C. 
101) and the statutory limitations on the inclusion of veterans as 
covered servicemembers. 29 U.S.C. 2611(15)(B) (a veteran will be a 
covered servicemember if he or she is ``undergoing medical treatment, 
recuperation, or therapy for a serious injury or illness [and the 
veteran] was a member of the Armed Forces (including a member of the 
National Guard or Reserves) at any time during the period of 5 years 
preceding the date on which the veteran undergoes that medical 
treatment, recuperation, or therapy.''); 29 U.S.C. 2611(19) (adopting 
38 U.S.C. 101 definition of veteran, which defines the term as ``a 
person who served in the active military, naval, or air service, and 
who was discharged or released therefrom under conditions other than 
dishonorable''). The Department proposes to measure the five-year 
period from the date the employee first takes leave to care for the 
veteran, and to permit an employee to continue leave begun within the 
five-year period until the end of the applicable ``single 12-month 
period''. A veteran will be considered a covered veteran if he or she 
was a member of the Armed Forces within the five-year period 
immediately preceding the date the requested leave is to begin. If the 
leave commences within the five-year period, the employee may continue 
leave for the applicable ``single 12-month period'', even if it extends 
beyond the five-year period. The Department believes this 
interpretation is consistent with the intent of Congress in limiting 
FMLA leave to care for certain veterans to a specified time period. 
This interpretation may exclude veterans of previous conflicts (e.g., 
Gulf War veterans), and may exclude certain veterans of the War in 
Afghanistan and Operation Iraqi Freedom, depending on the veteran's 
discharge date and the date the eligible employee's leave is to begin. 
The Department invites comment on this interpretation.
    Proposed Sec.  825.127(c) provides the definition of serious injury 
or illness for current members of the Armed Forces and for covered 
veterans. Proposed Sec.  825.127(c)(1) incorporates the definition of 
serious injury or illness of a current servicemember from current Sec.  
825.127(a)(1), and expands it to include an injury or illness that 
existed prior to the beginning of the member's active duty but was 
aggravated by service in the line of duty on active duty in the Armed 
Forces, consistent with the statutory definition of this term as 
amended by the FY 2010 NDAA. 29 U.S.C. 2611(18)(A).
    For both current members of the Armed Forces and covered veterans, 
a serious injury or illness that existed before the beginning of the 
servicemember's active duty and was aggravated by service in the line 
of duty on active duty includes both conditions that were noted at the 
time of entrance into active service and conditions that the military 
was unaware of at the time of entrance into active service but that are 
later determined to have existed at that time. A preexisting injury or 
illness will generally be considered to have been aggravated by service 
in the line of duty on active duty where there is an increase in the 
severity of such injury or illness during service, unless there is a 
specific finding that the increase in severity is due to the natural 
progression of the injury or illness. It is the Department's 
understanding that individuals will not be accepted for military 
service in the Regular or Reserve components unless they are: (1) Free 
of contagious diseases that probably will endanger the health of other 
personnel; (2) free of medical conditions or physical defects that may 
require excessive time lost from duty for necessary treatment or 
hospitalization, or probably will result in separation for medical 
unfitness; (3) medically capable of satisfactorily completing required 
training; (4) medically adaptable to the military environment without 
the necessity of geographical area limitations; and (5) medically 
capable of performing duties without aggravation of existing physical 
defects or medical conditions. DOD Instruction Number 6130.03 on 
Medical Standards for Appointment, Enlistment or Induction in the 
Military Service. In light of these standards, the Department seeks 
comments, particularly from military members and their families, 
concerning types of injuries or illnesses that may exist prior to 
service and be aggravated in the line of duty on active duty to such an 
extent as to render the servicemember unable to perform the duties of 
the member's office, grade, rank, or rating.
    The FY 2010 NDAA requires the Department to define a qualifying 
serious injury or illness for a veteran. Proposed Sec.  825.127(c)(2) 
defines serious injury or illness for a covered veteran with three 
alternative definitions set out in paragraphs (c)(2)(i), (c)(2)(ii), 
and (c)(2)(iii). Proposed Sec.  825.127(c)(2)(i) defines a serious 
injury or illness of a covered veteran as a serious injury or illness 
of a current servicemember, as defined in Sec.  825.127(c)(1), that 
continues after the servicemember becomes a veteran. Thus, if a veteran 
suffered a serious injury or illness when he or she was a current 
member of the Armed Forces and that same injury or illness continues 
after the member leaves the Armed Forces and becomes a veteran, the 
injury or illness will continue to qualify as a serious injury or 
illness warranting military caregiver leave. The Department believes 
that allowing qualifying family members to take leave to care for 
covered veterans who continue to suffer from these serious injuries or 
illnesses is consistent with Congressional intent, as evidenced by the 
extension of military caregiver leave provisions for veterans for a 
defined five-year period. As explained below, the Department believes 
that an eligible employee may take military caregiver leave for the 
same family member based on the same serious injury or illness when the 
family member is a current member of the Armed Forces and when the 
family member becomes a covered veteran.

[[Page 8968]]

    Proposed Sec.  825.127(c)(2)(ii) defines a serious injury or 
illness for a covered veteran as a physical or mental condition for 
which the covered veteran has received a Department of Veterans Affairs 
(VA) Service Related Disability Rating (VASRD) of 50 percent or higher 
and such VASRD rating is based, in whole or part, on the condition 
precipitating the need for caregiver leave. The Department's review 
indicates that a VASRD disability rating of 50 percent or greater 
encompasses disabilities or conditions such as amputations, severe 
burns, post traumatic stress syndrome, and severe traumatic brain 
injuries. The Department believes that there should be parity between a 
serious injury or illness of a covered veteran and a serious injury or 
illness for a current member of the Armed Forces, but also recognizes 
that veterans are in different circumstances than active duty military 
members. The standard for a serious injury or illness for current 
members of the Armed Forces cannot be directly applied to veterans 
because a veteran no longer has a military office, grade, rank, or 
rating against which to measure a condition that does not manifest 
until after the servicemember becomes a veteran. Further, veterans, 
unlike current military members, may participate in the civilian 
workforce.
    The Department believes that a serious injury or illness that 
substantially impairs a veteran's ability to secure or follow a 
substantially gainful occupation by reason of service-connected 
disability should be a qualifying injury or illness for a covered 
veteran. The Department considered proposing the VASRD rating equal to 
the level at which, under VA regulations, the veteran is considered to 
be totally disabled, i.e., that the veteran is unable to secure or 
follow a substantially gainful occupation by reason of service-
connected disability. See 38 CFR 4.16. Section 4.16(a) of the VA 
regulations clarifies that for a veteran with one disability, a 
disability rating of 60 percent or higher constitutes a total 
disability, and for a veteran with two or more disabilities, at least 
one disability must be rated at 40 percent or more with sufficient 
additional disabilities to bring the combined rating to 70 percent or 
higher. However, the Department is concerned that veterans may suffer 
from injuries and illnesses that do not result in a ``total 
disability'' under the VASRD rating system, but which the Department 
believes should qualify as a serious injury or illness for military 
caregiver leave. For example, burns resulting in distortion or 
disfigurement (see 38 CFR 4.118), or psychological disorders resulting 
from stressful events (see 38 CFR 4.129) occurring in the line of duty 
on active duty may not result in a VASRD rating of 60 percent or 
higher, but nonetheless may be severe enough to substantially impair a 
veteran's ability to work and therefore should be considered qualifying 
injuries or illnesses. The Department is particularly concerned that 
military caregiver leave be available to family members of veterans 
suffering from, or receiving treatment for such injuries or illnesses, 
which may include continuing or follow-up treatment for burns, 
including skin grafts or other surgeries, and amputations, including 
prosthetic fittings, occupational therapy and similar care.
    The Department also considered proposing the VASRD disability 
rating at a percentage below 50 percent. However, the Department 
determined that a lower threshold may capture injuries and illnesses 
that Congress did not intend to qualify as serious injuries or 
illnesses for which employees would be entitled to 26 workweeks of FMLA 
leave. For example, after a review of the VASRD rating schedules, the 
Department understands that a 30 percent VASRD rating may encompass 
conditions such as the loss of one ear (see 38 CFR 4.87), chronic 
laryngitis (see 38 CFR 4.97), moderate migraine (episodes once per 
month over several months) (see 38 CFR 4.124(a)), or severe acne (see 
38 CFR 4.118). In attempting to achieve parity with the standard of a 
serious injury or illness for a current member of the Armed Forces, the 
Department concluded that a VASRD rating of 50 percent will more 
closely approximate a condition that substantially impairs a veteran's 
ability to work.
    The Department is also concerned that establishment of a two-tier 
test, as used by the VA to reflect single and multiple disabilities, 
may be unnecessarily complicated for the purpose of defining a 
qualifying serious injury or illness for military caregiver leave. 
Therefore, after a careful review of VA regulations, the Department 
proposes a single threshold of an overall VASRD rating of 50 percent or 
higher (whether based on a single or multiple disabilities) as a 
qualifying serious injury or illness.
    The Department seeks comments on several aspects of this proposed 
definition. First, the Department invites comment on whether the VASRD 
rating of 50 percent is the appropriate level of injury or illness to 
support a request for military caregiver leave. The Department 
specifically seeks comment on whether the VASRD rating of 50 percent is 
the proper percentage of disability to capture all injuries and 
illnesses that would warrant an employee taking military caregiver 
leave to care for a covered veteran. Second, while the standard 
reflects the VA's determination of a disability with respect to 
benefits, the Department seeks comment on whether a VASRD rating 
appropriately correlates to the veteran's need for care and ability to 
work, attend school or perform other daily activities. The Department 
also seeks comment on whether this standard should expressly reference 
limitations in a veteran's ability to attend school or perform other 
regular daily activities. The Department invites comment on whether 
there are circumstances in which a veteran would be able to work but 
would nonetheless need care because of an inability to perform other 
daily activities.
    Proposed Sec.  825.127(c)(2)(iii) is the third alternative 
definition of a serious injury or illness for a covered veteran; it 
covers injuries and illnesses that are not technically within the 
definition proposed in (c)(2)(i) or (ii), but are of similar severity. 
The Department recognizes that covered veterans may have injuries or 
illnesses that are similar in severity to the injuries or illnesses 
qualifying under proposed (c)(2)(i) but for which the veterans did not 
obtain certification as a serious injury or illness when they were 
current members of the military. Similarly, the Department recognizes 
that covered veterans may have injuries or illnesses that are similar 
in severity to the injuries or illnesses qualifying under proposed 
(c)(2)(ii) but for which the veterans have not received a VASRD rating. 
The Department also recognizes that covered veterans may need a family 
member to provide care for injuries or illnesses that, absent 
treatment, would be similar in severity to those qualifying under 
(c)(2)(i) and (ii). This third alternative definition of serious injury 
or illness for a covered veteran is intended to capture these types of 
injuries and illnesses.
    The Department proposes to define a serious injury or illness for a 
covered veteran in the third alternative as a physical or mental 
condition that substantially impairs the veteran's ability to secure or 
follow a substantially gainful occupation by reason of a service-
connected disability, or would do so absent treatment. This proposed 
definition is intended to replicate the VASRD 50 percent disability 
rating standard under (c)(2)(ii) for situations in which the veteran 
does not have a service-related disability rating from the VA. The 
Department

[[Page 8969]]

expects that, when making determinations of serious injury or illness 
under this proposed definition, private health care providers will do 
so in the same way they make similar determinations for Social Security 
Disability claims and Workers' Compensation claims. Particularly with 
respect to Social Security Disability, health care providers must 
determine that an injury or illness ``substantially impairs'' the 
individual and determine whether the individual is able to gain or keep 
a ``substantially gainful occupation.''
    As noted above, the standard in (c)(2)(ii) is based on VA 
regulations and disability determinations. For example, a covered 
veteran with post traumatic stress disorder who is usually able to work 
may need care from an employee-family member when an event triggers a 
reoccurrence of the associated depression and anxiety to a level that 
the veteran would be unable to work absent treatment. Although 
paragraph (c)(2)(iii) is intended to have the same degree of incapacity 
as that set forth in paragraph (c)(2)(ii), a certification of serious 
injury or illness under this section serves only to establish that the 
veteran has a condition that entitles his or her family member to 
military caregiver leave under the FMLA. Such a determination provides 
no basis for a determination of status, rights, or benefits for the VA 
or other agencies. The VA is the sole agency qualified to make any 
rating determination for purposes of VA-related rights or benefits.
    The Department seeks comments from employees, employers, health 
care providers, and veterans as well as current military members on 
this proposed alternative definition. Specifically, the Department 
seeks comments on whether this proposal will be effective at capturing 
the serious injuries and illnesses that covered veterans suffer for 
which caregiving is needed by qualifying employee-family members and 
which will not be covered under proposed paragraphs (c)(2)(i) and (ii). 
In addition, the Department seeks comments on the ability of health 
care providers to certify a serious injury or illness for a covered 
veteran and the ability of employers to administer leave associated 
with a serious injury or illness for a covered veteran under this 
proposed definition. The Department is particularly concerned that this 
provision comprehensively encompasses traumatic brain injuries, post 
traumatic stress disorder, and other such conditions that may not 
manifest until some time after the member has become a veteran. 
Therefore, the Department also seeks comment on the types of injuries 
and illnesses that typically manifest after the member becomes a 
veteran, whether a family member is needed to care for the veteran for 
such injuries or illness and, if so, whether this proposed definition 
would cover such situations.
    The Department notes another means through which the severity of an 
injured veteran's disability may be assessed. VA's Program of 
Comprehensive Assistance for Family Caregivers (see Caregivers and 
Veterans Omnibus Health Services Act of 2010, Public Law 111-163 and 38 
CFR part 71) is designed to provide health care, travel, training, and 
financial benefits to certain eligible caregivers of veterans who are 
eligible for the program. In general, a veteran or servicemember 
undergoing medical discharge from the Armed Forces, is eligible for 
VA's Program of Comprehensive Assistance for Family Caregivers if the 
individual has incurred or aggravated a serious injury (including 
traumatic brain injuries, psychological trauma, or other mental 
disorders) in the line of duty on or after September 11, 2001; the 
serious injury renders the individual in need of a minimum of six 
continuous months of personal care services based on a variety of 
clinical criteria listed under 38 CFR 71.20 (c)(1)-(4); and it is in 
the best interest of the individual to participate in the program. See 
38 CFR 71.20. According to VA, approximately 86 percent of veterans 
currently enrolled in the program have received a VASRD rating of 50 
percent or greater, with approximately 50 percent having received a 
VASARD rating of 100 percent.
    In an effort to minimize the burden placed on military families, 
the Department has worked with VA to understand the requirements that 
must be met to enroll in VA's Program of Comprehensive Assistance for 
Family Caregivers and utilize FMLA leave. Based on the eligibility 
requirements for VA's Program of Comprehensive Assistance for Family 
Caregivers, the Department believes that most veterans who qualify for 
the program meet the requirement of having a serious injury or illness 
as defined in this proposal for the purpose of FMLA caregiver leave. 
Accordingly, the Department is considering adding a fourth alternative 
to the definition of serious injury or illness of a veteran, enrollment 
in VA's Program of Comprehensive Assistance for Family Caregivers, and 
invites comment on whether this would appropriately help reduce the 
burden placed on military and veterans' families in being able to take 
FMLA leave.
    As with the three definitions proposed in paragraphs (c)(2)(i)-
(iii), enrollment in VA's Program of Comprehensive Assistance for 
Family Caregivers would establish only that the veteran has a serious 
injury or illness, and would not mean that the caregiver is 
automatically entitled to take FMLA leave. The person seeking to take 
FMLA military caregiver leave must qualify as a family member under the 
FMLA and meet the other eligibility criteria, and the veteran must meet 
the definition of a ``covered veteran'' in proposed Sec.  
825.127(b)(2).
    The Department seeks comment, especially from caregivers and 
veterans who are currently enrolled in VA's Program of Comprehensive 
Assistance for Family Caregivers, on whether including enrollment in 
this program as another possible definition for establishing a 
qualifying serious injury or illness required to take FMLA leave would 
be helpful to veterans and caregivers in seeking FMLA leave for a 
covered veteran. Finally, the Department welcomes comments proposing 
other definitions not included above that would achieve the goals that 
the proposed definitions seek to achieve--namely, coverage of injuries 
or illnesses that covered veterans experience that approximate the 
severity of a serious injury or illness for current members of the 
military as defined in the statute and regulations.
    Current Sec.  825.127(c) explains how the ``single 12-month 
period'' in which eligible employees are entitled to take up to 26 
workweeks of military caregiver leave is applied. This provision is 
moved to proposed paragraph Sec.  825.127(e) (the numbering of the 
subparagraphs within this provision remain the same). Proposed 
paragraph Sec.  825.127(e)(2) (current Sec.  825.127(c)(2)) provides 
that the 26-workweek entitlement is to be applied as a per-covered 
servicemember, per-injury entitlement. Because the FY 2010 NDAA 
establishes two distinct categories of covered servicemembers (i.e., a 
current member of the Armed Forces and a covered veteran) and because 
military caregiver leave is applied on a per-covered servicemember 
basis, an eligible employee could potentially take military caregiver 
leave to care for a covered servicemember who is a current member of 
the Armed Forces and then, at a later point when the same servicemember 
becomes a covered veteran, could take a subsequent period of military 
caregiver leave. The Department notes that all of the normal 
eligibility requirements,

[[Page 8970]]

such as the hours of service requirement, would apply in such a 
situation. Additionally, an employee may not take more than a combined 
total of 26 workweeks of FMLA leave during a ``single 12-month 
period.'' The Department seeks comment on this interpretation of the 
``single 12-month period'' limitation.
    The Department notes that under this provision, an eligible 
employee may take up to 26 workweeks of leave to care for the same 
covered servicemember with a subsequent serious injury or illness. As 
the Department explained in the 2008 final rule, a subsequent serious 
injury or illness of the same covered servicemember could arise either 
from an injury or illness incurred by a current member in a subsequent 
deployment, or from the subsequent manifestation of a second serious 
injury or illness to either a current member or a covered veteran that 
relates back to the initial incident. 73 FR 67969. For example, if a 
servicemember is injured in the line of duty on active duty and suffers 
severe burns, an eligible employee is entitled to 26-workweeks of 
caregiver leave. If the servicemember later manifests a traumatic brain 
injury that was incurred in the same incident as the burns, the 
eligible employee would be entitled to an additional 26-workweeks of 
leave to care for the same servicemember. The Department requests 
comment on whether the current regulatory language is sufficiently 
clear as to the situations in which an employee would be permitted to 
take a second period of military caregiver leave due to the subsequent 
serious injury or illness of the same covered servicemember.
    Lastly, the Department proposes to make minor edits to internal 
references throughout this paragraph to reflect the reorganized 
structure of this section, to delete references to ``as described in 
paragraph (c) of this section'' as unnecessary, and to make two minor 
changes to paragraph (e)(3) (current Sec.  825.127(c)(3)): adding 
internal numbering to facilitate readability, and changing ``week'' to 
``workweek'' consistently throughout the paragraph.
4. Section 825.309 Certification Requirements for Leave Taken Because 
of a Qualifying Exigency
    The FY 2010 NDAA amends 29 U.S.C. 2613(f), which addresses 
certification for qualifying exigency leave. Accordingly, as it did in 
Sec.  825.126, the Department proposes to substitute ``covered active 
duty'' for ``active duty'' wherever it appears in this section. 
Consistent with the proposed change in Sec.  825.126, the Department 
also proposes to substitute ``military member'' or ``member'' for 
``covered military member'' wherever it appears.
    Proposed Sec.  825.309(a) follows current Sec.  825.309(a) and 
states that the first time an employee requests leave because of a 
qualifying exigency, an employer may require the employee to provide a 
copy of the military member's covered active duty orders or other 
documentation issued by the military which indicates that the military 
member is on covered active duty or call to covered active duty status, 
and the dates of the military member's covered active duty service. 
This information need only be provided once to the employer, unless a 
need for qualifying exigency leave arises out of a different call to 
covered active duty status of the same military member or the call to 
covered active duty status of a different military member. The 
Department proposes to delete the phrase ``in support of a contingency 
operation'' from current Sec.  825.309(a) to reflect the expansion of 
qualifying exigency leave to family of the Regular Armed Forces. As 
discussed in Sec.  825.126, the contingency operation requirement does 
not apply to members of the Regular Armed Forces.
    As previously discussed, the FY 2010 NDAA amended the qualifying 
exigency provisions to require that both members of the Reserve 
components and members of the Regular Armed Forces be deployed to a 
foreign country in order for their service to be considered covered 
active duty entitling their family members to qualifying exigency 
leave. It is the Department's understanding that the military member's 
active duty orders will specify the location of the deployment and will 
provide sufficient information to establish that the duty is, in fact, 
covered active duty. Both current and proposed Sec.  825.309(a) permit 
an employee to use either a copy of the military member's active duty 
orders or ``other documentation issued by the military'' to establish 
that the military member is on covered active duty or call to covered 
active duty status. The Department has received information from 
employees and employers indicating that family members have experienced 
difficulty obtaining copies of active duty orders or that the available 
documentation is insufficient to comply with current certification 
requirements. The Department specifically seeks feedback from the 
public on whether active duty orders of members of the Regular and 
Reserve components of the Armed Forces contain sufficient information 
to determine that the call to covered active duty involves deployment 
to a foreign country (and, in the case of the Reserve components that 
the member is being called up in support of a contingency operation), 
and, if not, what other documentation would meet the certification 
requirements. The Department also seeks comment on whether employees 
have experienced difficulty in obtaining copies of active duty orders 
or other military documents establishing their family member's covered 
service, and whether employers have experienced difficulty in 
confirming covered service.
    As with other FMLA certifications, the certification process for 
qualifying exigency leave is optional for the employer. Accordingly, 
the proposal revises the regulatory language at Sec.  825.309(a) to 
make it clear that new active duty orders or documentation do not 
automatically need to be provided; rather new active duty orders or 
documentation need only be provided upon request by the employer. The 
proposed change is consistent with the general certification process, 
which provides that an employer may require certification upon an 
employee request for qualifying exigency leave.
    Current Sec.  825.309(b) addresses information that may be required 
to support a request for qualifying exigency leave. Consistent with the 
proposed expansion of Rest and Recuperation qualifying exigency leave 
to be equivalent to the period of time the military member has for such 
leave, up to 15 days, the Department believes that it is appropriate 
for the employee to provide a copy of the military member's Rest and 
Recuperation orders in order to determine the specific leave period 
available. The Department therefore proposes a new Sec.  825.309(b)(6) 
to require that certification of qualifying exigency leave for Rest and 
Recuperation include a copy of the members Rest and Recuperation leave 
orders, or other documentation issued by the military, and the dates of 
the leave. No other change is proposed to Sec.  825.309(b).
    Current Sec.  825.126(c) identifies an optional-use Form WH-384 
which may be used in requesting qualifying exigency leave and states 
that another form containing the same basic information may be used by 
an employer as long as no information beyond that specified in this 
section is required. As discussed above, the Department proposes to 
delete the optional-use forms from the Appendices to part 825. 
Accordingly, the Department proposes to delete the reference in current 
Sec.  825.309(c) to Appendix H and proposes to add language explaining 
that Form WH-384 may be obtained from local Wage and

[[Page 8971]]

Hour offices or the Wage and Hour Web site. No other changes are 
proposed for Sec.  825.309(c).
    Current Sec.  825.309(d) indicates that where a complete and 
sufficient certification is submitted in support of a request for 
leave, an employer may not request additional information from an 
employee. Where the qualifying exigency involves a third party, 
employers may contact the individual or entity for purposes of 
verifying the meeting or appointment and the nature of the meeting. The 
employee's permission is not required to conduct such verification, but 
the employer may not request additional information. Employers may also 
contact the appropriate unit of the DOD to verify that the military 
member is on active duty or call to active duty status; no additional 
information may be requested and the employee's permission is not 
required for such verification. The Department solicits information on 
how this provision has been working for employers and employees. The 
Department would like to know whether any privacy issues have arisen 
for employees, or whether any employees have been denied qualifying 
exigency leave because their employers have been unable to verify their 
leave requests. The Department also seeks information on whether 
employers have encountered any difficulties in making third party 
verifications, and if so, why and whether they have denied an employee 
leave as a result.
5. Section 825.310 Certification for Leave Taken To Care for a Covered 
Servicemember (Military Caregiver Leave)
    Section 825.310 sets forth the certification process and the 
elements of a complete certification for military caregiver leave. 
Current Sec.  825.310(a) permits an employer to require that a request 
for leave to care for a covered servicemember with a serious injury or 
illness be supported by a certification issued by an authorized health 
care provider, defined as: (1) A DOD health care provider; (2) a VA 
health care provider; (3) a DOD TRICARE network authorized private 
health care provider; or (4) a DOD non-network TRICARE authorized 
private health care provider. Thus, current paragraph (a) limits the 
type of health care providers who may complete a medical certification 
for military caregiver leave for current members of the military.
    Proposed paragraph Sec.  825.310(a)(5) adds health care providers, 
as defined by regulation in Sec.  825.125, as a fifth component to the 
definition of an authorized health care provider from whom medical 
certification can be obtained for a serious injury or illness. The 
Department understands that in some circumstances, for example when 
seeking treatment for a mental health condition, some current 
servicemembers may wish to seek care from a health care provider 
unaffiliated with DOD. The Department believes that a family member of 
a current servicemember who is seeking treatment outside of the 
military's network for an injury or illness that was incurred or 
aggravated in the line duty on active duty should be eligible for FMLA 
leave under this provision. As such, the Department no longer believes 
that it is appropriate to limit a current servicemember's selection of 
health care provider more than it is limited for an individual seeking 
FMLA leave for a serious health condition. The expansion of authorized 
health care providers will apply equally to covered servicemembers who 
are covered veterans. The Department understands that veterans may use 
private health care providers rather than DOD, VA, TRICARE network 
health care providers, and some veterans may no longer be entitled to 
seek care through DOD or VA affiliated health care providers. Veterans 
may also be covered by the private health care plans of a spouse or 
parent and may utilize the services of private health care providers 
through these plans. Whether it is because there is no VA center in the 
area or due to other circumstances, the Department believes that 
families of veterans should be able to rely upon the determination of 
the veteran's own private health care provider, who otherwise meets the 
definition of an FMLA health care provider at Sec.  825.125, in 
determining if the treated condition is a qualifying serious injury or 
illness. The Department also believes that expanding the pool of health 
care providers will avoid increasing the administrative burdens on the 
VA and DOD. The Department invites comment on the proposal to allow any 
FMLA health care provider as defined in Sec.  825.125 to certify a 
serious injury or illness for military caregiver leave.
    While the Department believes that it is appropriate to include as 
authorized health care providers under this section health care 
providers as defined in Sec.  825.125, the Department is nonetheless 
concerned that private health care providers will not have the 
specialized information available to DOD, VA, and TRICARE network 
health care providers that is necessary to make several of the 
military-related determinations, and may need to obtain that 
information from DOD or VA in order to make a determination of whether 
the condition is related to the covered servicemember's service and/or 
whether the condition meets the definition of serious injury or 
illness. The Department seeks comments related to the available 
processes for a private health care provider to obtain information 
related to whether an injury or illness was incurred in the line of 
duty while on active duty or whether the covered servicemember's injury 
or illness existed before beginning service and was aggravated by 
service in the line of duty while on active duty. The Department also 
seeks comments on whether a covered servicemember will have a copy of 
medical records from his or her military service, or would the covered 
servicemember, or family member, be able to access medical records or 
other documentation that would support the determination that an injury 
or illness was incurred in the line of duty while on active duty, and 
the types of documentation that may be available to the covered 
servicemember or family member. Specific to veterans, the Department 
seeks comment on whether a veteran or family member has access to 
documentation of a VASRD disability rating.
    Current Sec.  825.310(b) sets forth the information an employer may 
request from the health care provider in order to support the 
employee's request for leave. The Department proposes to modify 
paragraphs (b)(1)-(4), as discussed below. The Department proposes no 
other changes to Sec.  825.310(b). Current Sec.  825.310(b) permits an 
authorized health care provider who is unable to make certain military 
determinations to rely on determinations from an authorized DOD 
representative. In light of the extension of military caregiver leave 
to covered veterans, proposed Sec.  825.310(b) indicates that an 
authorized health care provider may rely on military-related 
determinations from an authorized DOD representative or an authorized 
VA representative. Current Sec.  825.310(b)(1) allows an employer to 
request certain information from the health care provider. Consistent 
with the Department's proposal to allow covered servicemembers to 
utilize any health care provider as defined in Sec.  825.125, the 
Department proposes to add a new provision (b)(1)(v) clarifying that 
the medical certification may be provided by a health care provider as 
defined by Sec.  825.125.
    Current paragraph (b)(2) allows an employer to request information 
that specifies whether the covered servicemember's injury or illness 
was

[[Page 8972]]

incurred in the line of duty while on active duty. The Department 
proposes to add language to this paragraph to allow an employer to 
obtain information that specifies whether the covered servicemember's 
injury or illness existed before beginning service and was aggravated 
by service in the line of duty while on active duty. The proposed 
language incorporates the FY 2010 NDAA statutory amendment to the 
definition of serious injury or illness which provides that a serious 
injury or illness for both current members of the military and covered 
veterans includes an injury or illness that existed before the 
beginning of the member's active duty and was aggravated by service in 
the line of duty on active duty in the Armed Forces. The Department 
seeks comment on what processes are or may be used to determine that an 
injury or illness existed prior to active duty service and was 
aggravated by service in the line of duty on active duty. Comment is 
also sought on the basis a non-DOD or non-VA health care provider would 
determine that an injury or illness is a condition that existed before 
the military member's service and was aggravated in the line of duty on 
active duty.
    Current Sec.  825.310(b)(3) allows an employer to request the 
approximate date on which the serious injury or illness commenced and 
its probable duration. In light of the statutory amendments to the 
definition of serious injury or illness, proposed Sec.  825.310(b)(3) 
allows an employer to request the approximate date on which the serious 
injury or illness commenced or was aggravated and its probable 
duration.
    Current Sec.  825.310(b)(4) allows an employer to request a 
statement of appropriate medical facts regarding the covered 
servicemember's health condition for which leave is requested and 
specifies what medical facts must be included in a certification in 
order to support the need for leave. The Department proposes to move 
the description of what medical facts must be included in the 
certification for a serious injury or illness of a current member of 
the military from current Sec.  825.310(b)(4) to proposed Sec.  
825.310(b)(4)(i). Proposed Sec.  825.310(b)(4)(i) retains the same 
requirements as in current paragraph (b)(4) that a sufficient 
certification for a serious injury or illness of a current member of 
the military must include information on whether the injury or illness 
may render the current servicemember unfit to perform the duties of the 
servicemember's office, grade, rank, or rating and whether the 
servicemember is receiving medical treatment, recuperation, or therapy. 
The Department further proposes to describe in Sec.  825.310(b)(4)(ii) 
what medical facts must be included in the certification for an injury 
or illness of a covered veteran. Proposed Sec.  825.310(b)(4)(ii) 
states that a sufficient certification for a serious injury or illness 
of a covered veteran must include information on whether the veteran is 
receiving medical treatment, recuperation, or therapy for an injury or 
illness that is a continuation of a serious injury or illness that was 
incurred or aggravated when the veteran was a member of the Armed 
Forces; involves a physical or mental condition for which the veteran 
has received a VASRD rating of 50 percent or higher, and that such 
VASRD rating is based, in whole or in part, on the condition 
precipitating the need for caregiver leave; or, a physical or mental 
condition that substantially impairs the veteran's ability to secure or 
follow a substantially gainful occupation by reason of a service-
connected disability or disabilities, or would do so absent treatment.
    As noted earlier, the Department is considering adding enrollment 
into VA's Program of Comprehensive Assistance for Family Caregivers as 
another possible definition for establishing a qualifying serious 
injury or illness for a covered veteran. The Department seeks comments 
on whether the medical documentation required for enrollment in the 
VA's Program for Comprehensive Assistance for Family Caregivers 
provides sufficient medical facts to support the need for FMLA leave. 
The Department notes that under the current proposed definition of 
serious injury or illness of a veteran, medical documentation prepared 
in connection with the VA's Program of Comprehensive Assistance for 
Family Caregivers may be submitted as part of the FMLA certification 
process under proposed Sec.  825.127(c)(2)(ii) and (c)(2)(iii). To the 
extent that additional information is necessary to establish a complete 
and sufficient FMLA certification (i.e., information showing the 
relationship of the employee to the covered servicemember for whom the 
employee is requesting leave to care), the employee seeking leave would 
be responsible for providing the employer with the additional 
information.
    Current Sec.  825.310(c) outlines the information that employers 
may require from employees as part of the certification. No change is 
proposed to current Sec.  825.310(c)(1)-(5). The Department proposes to 
add a new paragraph (c)(6) and renumber current paragraph (c)(6) as 
(c)(7). Proposed paragraph (c)(6) permits an employer to require that 
the employee or covered servicemember indicate whether the member is a 
veteran, the date of separation, and whether the separation was other 
than dishonorable. It also permits the employer to request 
documentation confirming this information, and permits the employee to 
provide a copy of the veteran's DD Form 214 or other proof of veteran 
status to satisfy such documentation requirement.
    Current Sec.  825.310(d) identifies an optional-use form that may 
be used to provide certification for military caregiver leave. As 
discussed above, the Department proposes to delete the forms from the 
Appendices and therefore proposes in paragraph (d) to delete the 
reference to Appendix H and instead to insert language stating that the 
applicable form may be obtained either from a local WHD office or the 
WHD Web site. The Department intends to amend current form WH-385 to 
reflect that a health care provider as defined in Sec.  825.125 may 
certify a serious injury or illness for a current servicemember. The 
Department is also considering the development of a new form to capture 
the above identified information for military caregiver leave for a 
covered veteran. The Department seeks comments on whether it will be 
less confusing to develop two forms to use for military caregiver 
certification or whether adapting the current WH-385 would be 
preferable.
    Current Sec.  825.310(d) also provides that an employer may seek 
authentication and/or clarification of the certification for military 
caregiver leave; however, second and third opinions are not permitted. 
In the 2008 final rule, the Department reasoned that the statutory 
standard for determining whether a military member has a serious injury 
or illness is dependent on several determinations which can only be 
made by the military. Therefore, it would be inappropriate to permit 
second and third opinions regarding those determinations. 73 FR 68029. 
With the proposed change to allow families of covered servicemembers to 
rely upon the determination of health care providers unaffiliated with 
DOD, VA, or TRICARE, the certification process, when done by a private 
health care provider that is not one of the types identified in Sec.  
825.310(a)(1)-(4), is more akin to the certification process for the 
serious health condition of civilian family members. Therefore, the 
Department believes that in such situations there is no basis to 
prohibit employers from obtaining second and third opinions. 
Consequently, the

[[Page 8973]]

Department proposes in Sec.  825.310(d) to state that second and third 
opinions are not permitted when the certification has been completed by 
one of the types of health care providers identified in Sec.  
825.310(a)(1)-(4), but second and third opinions are permitted when the 
certification has been completed by a health care provider that is not 
one of the types identified in Sec.  825.310(a)(1)-(4). The Department 
seeks comment on the proposal to permit second and third opinions on 
military caregiver leave certifications that are completed by health 
care practitioners who are not affiliated with the military or VA.
    No changes are proposed for Sec.  825.310(e), which addresses the 
use of ``invitational travel orders'' (ITO) or ``invitational travel 
authorizations'' (ITA) issued for medical purposes, in lieu of a 
certification form, other than to update internal references. However, 
the Department seeks comment on the effectiveness of the substitution 
of ITOs and ITAs in support of a need for military caregiver leave.
    Current Sec.  825.310(f) states that it is the employee's 
responsibility to provide the employer with a complete and sufficient 
certification and describes the consequences of failing to do so. The 
Department proposes to add text that clarifies this requirement, 
providing that ``an employee may not be held liable for administrative 
delays in the issuance of military documents, despite the employee's 
diligent, good-faith efforts to obtain such documents.'' While current 
Sec.  825.305(b) already provides that employees who are unable to 
provide requested FMLA certification (including certification for 
military caregiver leave) within 15 days despite their diligent, good 
faith efforts must be provided with additional time, the Department 
believes that it is important to reiterate this principle in Sec.  
825.310(f). As discussed in the preamble to the 2008 final rule, the 
Department acknowledges concerns regarding timely receipt of military 
documentation and hopes to clarify that employees may not be held 
responsible for administrative delays in the issuance of military 
documents where a good faith attempt is made by the employee to obtain 
such documents. 73 FR 68011.

B. Revisions To Implement the AFCTCA Amendments

1. Section 825.110 Eligible Employee
    Current Sec.  825.110 sets forth the eligibility standards an 
employee must meet in order to take FMLA leave. To be eligible, an 
employee must have been employed by the employer for at least 12 
months, must have been employed for at least 1,250 hours of service in 
the 12-month period immediately preceding the commencement of the 
leave, and must be employed at a worksite where 50 or more employees 
are employed by the employer within 75 miles. Whether an employee has 
worked the required 1,250 hours of service is based on FLSA hours-
worked principles contained in 29 CFR 785. The Department proposes 
revisions to Sec.  825.110(a), (c), and (d) to reflect the AFCTCA's 
expanded definition of the ``hours of service'' requirement for airline 
flight crew employees. No changes are proposed to Sec.  825.110(b) and 
(e).
    Section 825.110(a) sets forth the general employee eligibility 
requirements. In Sec.  825.110(a)(2) the Department proposes to add a 
reference to proposed paragraph Sec.  825.110(c)(2), which sets forth 
the hours of service requirement for airline flight crew employees. No 
other changes are proposed in Sec.  825.110(a).
    Current Sec.  825.110(b)(2)(i) concerns determining an employee's 
eligibility when there is a break in service occasioned by the 
fulfillment of the employee's National Guard or Reserve military 
service. The Department proposes to modify the language in the first 
sentence to reference the Uniformed Services Employment and 
Reemployment Rights Act (USERRA) and to clarify that the protections 
afforded by USERRA extend to all military members (active duty and 
reserve) returning from USERRA-qualifying military service. Current 
Sec.  825.110(c)(2) provides rules pursuant to USERRA for crediting an 
employee returning from a National Guard or Reserve obligation with the 
hours of service that would have been performed but for the military 
service when evaluating whether the ``hours of service'' eligibility 
requirement has been met. The Department proposes to renumber current 
paragraph (c)(2) as paragraph (c)(3) and to spell out the title of 
USERRA, which is currently referred to in this section by the acronym 
only. In addition, the Department proposes to modify the language in 
the first sentence of this paragraph in recognition that USERRA rights 
may extend to certain employees returning to civilian employment from 
service in the Regular Armed Forces. The Department also proposes to 
modify this paragraph to refer more generally to the hours of service 
requirement.
    The AFCTCA requires employers to calculate hours of service for 
eligibility in a different manner for airline flight crew employees. 
The Department proposes to separately define the hours of service 
eligibility requirement for these employees in proposed Sec.  
825.110(c)(2) and (c)(3). The Department notes that the hours of 
service requirement will continue to be determined based on ``hours 
worked'' as defined under the FLSA for all employees other than airline 
flight crew employees. Proposed paragraph Sec.  825.110(c)(2) states 
the AFCTCA requirement that the hours of service criteria will be met 
if during the previous 12-month period the airline flight crew employee 
has worked or been paid for not less than 60 percent of the applicable 
monthly guarantee and has worked or been paid for not less than 504 
hours (not including personal commute time or time spent on vacation 
leave or sick or medical leave).
    Proposed paragraph Sec.  825.110(c)(2)(i) states the statutory 
definition of applicable monthly guarantee for airline flight crew 
employees on reserve and non-reserve status. The Department proposes to 
refer to airline flight crew employees who are not on reserve status as 
``line holders'', which the Department understands to reflect industry 
terminology. The applicable monthly guarantee is determined by the 
employer's policies or collective bargaining agreement and differs 
depending on whether the airline flight crew employee is a line holder 
or on reserve status and on the employee's job classification (i.e., 
pilot, co-pilot, flight attendant, or flight engineer). For airline 
employees who are on reserve status, the applicable monthly guarantee 
means the number of hours for which an employer has agreed to pay the 
employee for any given month. For line holders, the applicable monthly 
guarantee is the minimum number of hours for which an employer has 
agreed to schedule such employee for any given month. It is the 
Department's understanding that the schedule for line holders is based 
on duty hours, and that duty hours include the flight or block hours as 
determined by the Federal Aviation Administration (FAA) as well as 
additional time before and after the flight as determined by employer 
policy or applicable collective bargaining agreement. The Department 
seeks comments on whether this is an accurate interpretation of what 
comprises the line holders' scheduled hours, or whether some other 
basis such as flight or block hours would be more appropriate for this 
calculation.
    In Sec.  825.110(c)(2)(ii) the Department proposes to base the 
number of hours that an airline flight crew employee has worked on the 
employee's duty hours during the previous 12-month period. While duty 
hours may not always reflect all hours that would be considered

[[Page 8974]]

hours worked under the FLSA, it is the Department's understanding that 
duty hours are closely tracked in a similar manner by all employers in 
the industry. Therefore, the Department believes that duty hours 
provide the most accurate and uniform basis for making eligibility 
determinations for hours of service for airline flight crew employees. 
Regarding the calculation of the number of hours that an airline flight 
crew employee has been paid, it is the Department's understanding that 
all airline flight crew employees are generally paid on an hourly 
basis, and that these hours are routinely tracked by each airline. The 
hours an airline flight crew employee has been paid is the number of 
hours for which an employee received wages during the previous 12-month 
period. As required by the AFCTCA, personal commute time, vacation, and 
medical or sick leave do not count towards the hours worked or paid 
calculation. The Department notes that airline flight crew employees 
are eligible if they have either the required number of ``hours 
worked'' or ``hours paid''. The Department invites comments on whether 
these calculation methods for hours worked and hours paid are the most 
appropriate bases for determining whether an airline flight crew 
employee has worked or been paid for 504 hours during the previous 12-
month period.
    The Department proposes to renumber current paragraph Sec.  
825.110(c)(3), which explains an employer's burden when it does not 
maintain accurate records of hours worked for an employee, as new Sec.  
825.110(c)(4), and to add language clarifying the application of this 
rule to airline flight crew employees.
    Finally, the Department proposes to replace the phrase ``worked for 
the employer for at least 1,250 hours'' in the first sentence of 
current Sec.  825.110(d) with the more general ``met the hours of 
service requirement'', to provide uniformity with the rest of the 
section in reflecting the AFCTCA requirements. The Department also 
proposes to replace the general reference to ``eligibility 
requirements'' in the second sentence of this paragraph with a specific 
reference to the ``12-month eligibility requirement'' to clarify the 
application of this principle.
    The Department seeks comments on all aspects of the application of 
the AFCTCA eligibility provisions, particularly on the proposal to 
interpret the requirement of 504 hours worked to be 504 hours of duty 
time, as well as the Department's understanding that scheduled hours 
for line holders encompasses duty hours. The Department recognizes that 
the airline industry has unique timekeeping practices and it is the 
Department's intent to utilize existing industry records to make FMLA 
eligibility determinations.
2. Section 825.205 Increments of FMLA Leave for Intermittent or Reduced 
Schedule Leave
    Section 825.205 of the current regulations explains how to count 
increments of leave in cases of intermittent or reduced schedule leave. 
The Department proposes several changes to this section. The changes 
implement the AFCTCA provisions and address how FMLA leave usage is 
counted for all employees.
    Current Sec.  825.205(a) defines the minimum increment of FMLA 
leave to be used when taken intermittently or on a reduced schedule as 
an increment no greater than the shortest period of time that the 
employer uses to account for other forms of leave, provided that it is 
not greater than one hour. The Department proposes to add language to 
paragraph (a)(1) stating that an employer may not require an employee 
to take more leave than is necessary to address the circumstances that 
precipitated the need for leave. This concept was included in Sec.  
825.203(d) of the 1995 final rule. The Department believes it is 
appropriate to reinsert it into the regulations to emphasize the 
statutory requirement that an employee's FMLA leave entitlement not be 
reduced beyond the amount of leave actually taken in accounting for 
leave taken on an intermittent or reduced schedule basis. 29 U.S.C. 
2612(b)(1). The proposed regulatory text makes clear that this 
principle is subject to the increment of leave rule set forth in this 
paragraph as well as to the physical impossibility rule in paragraph 
(a)(2) and the special rules for intermittent leave for school 
employees in Sec. Sec.  825.601 and 825.602. As explained in the 2008 
final rule, the other situation in which an employee may use more FMLA 
leave than necessary to address the circumstances requiring leave is 
when the employee elects to substitute paid leave and must use a larger 
amount of leave in order to satisfy the employer's paid leave policy. 
In such instances, the entire period of leave taken is FMLA-protected 
and counts against the FMLA entitlement. 73 FR 67981. While an employer 
can require an employee to utilize a larger amount of FMLA leave than 
necessitated by the FMLA condition if the employee wishes to substitute 
paid leave, the employee always has the option to take unpaid FMLA 
leave in the smallest increment of leave used by the employer.
    The Department also proposes to add to paragraph (a)(1) language 
from the preamble to the 2008 final rule that further clarifies two 
important aspects of the calculation of FMLA leave. First, the 
Department proposes to add an example to illustrate the principal that 
where an employer uses different increments to account for different 
types of leave (e.g., sick leave in one-half hour increments and annual 
leave in increments of one hour), the employer must use the smallest of 
the increments to account for FMLA leave usage. 73 FR 67976. 
Additionally, the Department proposes to clarify in the regulatory text 
that FMLA leave may only be counted against an employee's FMLA 
entitlement for leave taken and not for time that is worked for the 
employer. Id. Accordingly, where an employer chooses to waive its 
increment of leave policy in order to return an employee to work--for 
example where an employee arrives a half hour late to work due to an 
FMLA-qualifying condition and the employer waives its normal one hour 
increment of leave and puts the employee to work immediately--only the 
amount of leave actually taken by the employee may be counted against 
the FMLA entitlement. The Department believes these clarifications in 
the regulatory text will aid employers and employees in understanding 
the application and counting of FMLA leave usage.
    Current Sec.  825.205(a)(1) also permits employers to utilize 
different increments of FMLA leave at different times of the day or 
shift under certain circumstances. Under this provision, for example, 
if an employer utilizes a larger increment of leave at the beginning or 
the end of a shift an employee needing FMLA leave during those periods 
may be required to take the leave in the size of the smallest increment 
of leave permitted at that particular time. The Department's 
enforcement experience indicates some confusion regarding this 
provision including some employers who have interpreted this language 
to permit the use of a larger increment of FMLA leave at certain points 
in a shift than the increment used for other forms of leave in the same 
time period. Consequently, the Department proposes to remove the 
language allowing for varying increments at different times of the day 
or shift in favor of the more general principle of using the employer's 
shortest increment of any type of leave at any time. The Department 
requests comment on the proposal to remove this language from the 
regulations.

[[Page 8975]]

    Current Sec.  825.205(a)(2) sets forth the physical impossibility 
provision which provides that where it is physically impossible for an 
employee to commence or end work mid-way through a shift, the entire 
period that the employee is forced to be absent is counted against the 
employee's FMLA leave entitlement. The Department has reviewed this 
position in connection with the AFCTCA because of the impact of the 
physical impossibility provision on the airline industry. As discussed 
in the preamble to the 2008 final rule, the physical impossibility 
provision is intended to apply only in very narrow circumstances. 73 FR 
67977. The Department is concerned, however, that the provision may be 
being applied more broadly than intended. Accordingly, the Department 
proposes adding language at paragraph (a)(2) emphasizing that it is an 
employer's responsibility to restore an employee to his or her same or 
equivalent position at the end of any FMLA leave as soon as possible. 
The proposed language further emphasizes the Department's intent that 
the physical impossibility provision be applied in only the most 
limited circumstances and only where it is, in fact, physically 
impossible to allow the employee to leave his or her shift early or to 
restore the employee to his or her same position or to an equivalent 
position at the time the employee no longer needs FMLA leave. Thus, for 
example, if after three hours of FMLA leave use it was physically 
possible to restore a flight crew employee to another flight, the 
employer would be required to do so. If, however, no other flight is 
available to which the employee could be assigned, or no other 
equivalent work is available, restoration could be delayed and the 
employee's FMLA entitlement reduced for the entire period the employee 
is forced to be absent. The Department reiterates that employers have 
an obligation not to discriminate between employees taking FMLA leave 
and employees taking other forms of leave in restoring employees or 
offering alternative work. 73 FR 679678. Alternatively, the Department 
is considering deleting the physical impossibility provision in its 
entirety. The 2008 final rule explained that the Department intended 
the provision to protect employees from discipline when a short FMLA-
protected absence resulted in a much longer absence because of the 
unique nature of the worksite. 73 FR 67977. However, the Department is 
concerned that this exception may be misused, delaying restoration in 
instances where restoration to an equivalent position is possible or 
where restoration to the same position may be possible but inconvenient 
to the employer. The Department seeks comments on whether the physical 
impossibility provision has indeed protected employees from 
inappropriate discipline, or if it has been misused to unduly extend 
employees' FMLA leave and diminish their FMLA entitlement, and whether 
it should be retained in the regulations.
    Current Sec.  825.205(b) addresses the rules concerning the 
calculation of leave usage when leave is taken on an intermittent or 
reduced leave schedule (calculation of leave for airline flight crew 
employees is separately addressed in Sec.  825.205(d)). The Department 
proposes only clarifying changes to this paragraph. The Department 
proposes to include in the regulatory text language from the 2008 final 
rule preamble to reinforce the requirement that the employee's total 
available entitlement is 12 workweeks (or 26 workweeks in the case of 
military caregiver leave), that FMLA leave does not accrue at any 
particular hourly rate, and that the specific number of hours contained 
in the workweek is dependent upon the hours the employee would have 
worked but for the taking of the FMLA leave. 73 FR 67978. The 
Department also proposes minor edits making uniform the references to 
fractions contained in this paragraph.
    Current Sec.  825.205(c) addresses when overtime hours that are not 
worked may be counted as FMLA leave. The Department proposes to change 
the term ``serious health condition'' in the last sentence in paragraph 
(c) to ``FMLA qualifying reason.'' This editorial change is consistent 
with the language used in the first sentence of the paragraph and more 
accurately reflects that overtime hours missed by an employee may be 
due to any FMLA-qualifying reason and are not limited to a serious 
health condition.
    Proposed Sec.  825.205 (d)(1) provides the method for calculating 
leave usage for airline flight crew employees who are line holders and 
is based on principles established for the calculation of leave for all 
employees found in paragraph (b)(1) of this section. For line holders, 
the number of duty hours scheduled will be used in determining the 
employee's workweek for purposes of calculating FMLA leave usage. Duty 
hours scheduled means the hours that the individual employee is 
scheduled to work in the workweek in which FMLA leave is needed. It is 
the Department's understanding that the line or block awarded to the 
employee would readily yield the duty hours scheduled for any given 
week. Further, it is the Department's understanding that duty hours 
include the flight or block hours as determined by the FAA, as well as 
the additional time before and after the flight encompassing pre- and 
post-flight duties, as determined by employer policy or applicable 
collective bargaining agreement. The Department believes the employee's 
duty time best represents the time spent on the job and provides an 
accurate characterization of the time needing job protection in the 
event FMLA leave is needed by the employee.
    Proposed paragraph (d)(2) of this section provides the method for 
calculating leave usage for airline flight crew employees on reserve 
status. The Department proposes to base the leave entitlement and 
calculation of the employee's workweek on an average of the greater of 
the applicable monthly guarantee or actual duty hours worked over the 
prior 12 months. Under this proposal, the employee's average workweek 
would be calculated by adding the greater of the applicable monthly 
guarantee (the number of hours for which an employer has agreed to pay 
the employee for any given month) or actual duty hours worked in each 
of the previous 12 months and dividing by 52 weeks per year. This 
average workweek would be the basis for FMLA leave usage for the 12-
month FMLA leave year. For example, if a reserve flight attendant has 
worked or been paid an average of 20 hours per week over the prior 12 
months, the employee would be entitled to 12 workweeks of 20-hours for 
FMLA leave (or 26 workweeks in the case of leave to care for a covered 
servicemember). If the flight attendant needs four hours of FMLA leave 
in one workweek, the employee would use one-fifth (\1/5\) of a workweek 
(4 hours / 20 hours/workweek). The principles established for the 
calculation of leave for all employees found in paragraph (b)(1) of 
this section continues to apply to these airline flight crew employees. 
Due to the Department's understanding of the variation in scheduling 
and actual hours worked by reserve airline flight crew employees and 
variation during different times of the year, the Department proposes 
this averaging method for calculating FMLA leave usage. The Department 
acknowledges that, as with any averaging method, actual workweeks will 
vary in any given situation.
    In developing a proposed method to calculate FMLA-leave usage for 
airline flight crew employees on reserve status, the Department 
considered a methodology based on FLSA principles of ``hours worked,'' 
as is used for

[[Page 8976]]

employees other than airline flight crew employees. However, airline 
flight crew employees are not paid strictly on a FLSA ``hours worked'' 
basis but rather based in part on the applicable monthly guarantee. 
Airline flight crew employees on reserve status may work all, few, or 
none of the hours for which they are paid in a given month. Thus, after 
considering applying the FLSA ``hours worked'' method of leave 
calculation to airline flight crew employees, the Department concluded 
that the unique way in which airline flight crew employees are 
scheduled and paid made this methodology impracticable. Through 
consultations with airline employers and employee representatives, the 
Department understands that airlines are already tracking and recording 
airline flight crew employees' hours in a number of ways pursuant to 
FAA regulations, including flight hours, duty hours, and mandatory rest 
periods. See 14 CFR pt. 91. The Department believes that imposing a 
FLSA ``hours worked'' methodology on the airline industry and thus 
mandating yet another recordkeeping system would be unduly burdensome 
and costly for employers, as well as unnecessarily confusing for 
employees.
    Rather, the Department believes the method of averaging in proposed 
paragraph (d)(2) is better suited to the variable scheduling of reserve 
airline flight crew members. Additionally, the method proposed is 
consistent with current Sec.  825.205(b)(3), which provides that, where 
an employee's schedule varies from week to week to such an extent the 
employer is unable to determine the hours the employee would have 
worked but for the taking of FMLA leave, the employer has the option to 
establish a leave entitlement by using the weekly average of the hours 
scheduled over the 12 months prior to the beginning of the leave 
period. The Department believes proposed paragraph (d)(2) is consistent 
with current FMLA calculation methods, best reflects Congressional 
intent, and will provide access to FMLA leave for the largest number of 
flight crew employees without requiring dramatic changes to existing 
industry systems.
    The Department also understands that some line holders may also 
request additional work in reserve status. Where an employee is both a 
line holder and on reserve status, the Department proposes that the 
leave calculation should be made using the method set forth for reserve 
airline flight crew employees, as this method is flexible enough to 
encompass both the applicable monthly guarantee and duty hours. The 
Department requests comment on industry practice in this area and 
application of the FMLA regulations to such a scenario. The Department 
also seeks comment on the proposed calculation of leave methods for 
both line holders and airline flight crew employees on reserve status 
and welcomes suggestions for alternative methods that equitably reflect 
the employee's total normally scheduled hours and actual FMLA leave 
taken.
3. Section 825.500 Recordkeeping Requirements
    Current Sec.  825.500 details the recordkeeping requirements under 
the FMLA. The Department proposes to add a new sentence at the end of 
paragraph (g) setting forth the employer's obligation to comply with 
the confidentiality requirements of the Genetic Information 
Nondiscrimination Act of 2008 (GINA). To the extent that records and 
documents created for FMLA purposes contain ``family medical history'' 
or ``genetic information'' as defined in the GINA, employers must 
maintain such records in accordance with the confidentiality 
requirements of Title II of GINA. GINA permits genetic information, 
including family medical history, obtained by the employer in FMLA 
records and documents to be disclosed consistent with the requirements 
of the FMLA.
    The Department proposes to define in a new paragraph (h) the 
statutory requirement that employers of airline flight crew employees 
maintain on file with the Secretary certain records. Consistent with 
other recordkeeping requirements, proposed paragraph (h) makes clear 
that records are to be maintained by the employer by making, keeping, 
and preserving records in accordance with the requirements already 
delineated in Sec.  825.500, with no actual submission to the Secretary 
unless requested.
    Additionally, proposed paragraph (h)(1) outlines additional records 
that are required to be kept specific to employers of airline flight 
crew employees. These additional records include any records or 
documents that specify the applicable monthly guarantee for each type 
of employee to whom the guarantee applies, including any relevant 
collective bargaining agreements or employer policy documents that 
establish the applicable monthly guarantee; as well as records of hours 
scheduled, in order to be able to apply the leave calculation 
principles contained in proposed Sec.  825.205(d).

C. Proposed Revisions to Forms, Appendices, and Definitions

1. Section 825.300 Employee and Employer Rights and Obligations Under 
the Act
    As previously discussed, the Department is proposing to delete the 
Appendices to part 825 and to provide copies of the optional use forms 
and the poster through local Wage and Hour Offices and the Wage and 
Hour Web site. References to the Appendices have been deleted from the 
following sections: Sec.  825.300 (Employer notice requirements), Sec.  
825.306 (Content of medical certification for leave taken because of an 
employee's own serious health condition or the serious health condition 
of a family member), Sec.  825.309 (Certification for leave taken 
because of a qualifying exigency), Sec.  825.310 (Certification for 
leave taken to care for a covered servicemember (military caregiver 
leave)), and Sec.  825.800 (Definitions). The Department also proposes 
minor edits to Sec.  825.300 to reflect provisions of the FY 2010 NDAA 
and AFCTCA.
2. Section 825.800 Definitions
    The current Sec.  825.800 contains the definitions of significant 
terms, phrases, and acronyms used in the regulations. The Department 
proposes to move this section of the regulations to Sec.  825.102. This 
reorganization is intended to enhance the utility of the regulations by 
defining terms before they are used and in advance of the substantive 
provisions. Moving the definitions section to the beginning of the 
regulations is consistent with other regulations implementing statutes 
administered by the WHD.
    The Department proposes to make changes to definitions and 
regulatory references in this section to maintain consistency with the 
Department's proposed changes to the regulatory text. Specifically, the 
terms modified are covered servicemember, eligible employee, serious 
injury or illness, and son or daughter on covered active duty or an 
impending call or order to covered active duty. Only the references 
were updated to contingency operation, next of kin of a covered 
servicemember, outpatient status, parent of a covered servicemember, 
and son or daughter of a covered servicemember. In addition, the 
Department proposes terms be added or removed to reflect the regulatory 
changes made to incorporate the FY 2010 NDAA and AFCTCA amendments to 
the regulations. The terms added are airline flight crew employee, 
covered active duty or call to covered active duty status, applicable

[[Page 8977]]

monthly guarantee, line holder, and covered veteran. The terms removed 
are active duty or call to active duty status and covered military 
member.
    The Department also proposes to add terms previously not listed in 
this section but used in the current regulations and unchanged by this 
NPRM as an aid and service to the reader. These terms are ITO or ITA, 
key employee, military caregiver leave, reserve components of the Armed 
Forces, and TRICARE.

IV. Paperwork Reduction Act

    In accordance with the requirements of the Paperwork Reduction Act 
of 1995 (PRA), 44 U.S.C. 3501 et seq., and its attendant regulations, 5 
CFR part 1320, the Department seeks to minimize the paperwork burden 
for individuals, small businesses, educational and non-profit 
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. Persons are not required to respond to the 
information collection requirements as contained in this proposal 
unless and until they are approved by the Office of Management and 
Budget (OMB) under the PRA at the final rule stage.
    This paperwork burden analysis estimates the burdens for the 
proposed regulations as drafted. The proposed regulations, as they 
relate to the PRA, implement amendments to the military leave 
provisions made by the FY 2010 NDAA, which extends the availability of 
FMLA leave for qualifying exigencies to employee-family members of 
members of the Regular Armed Forces and defines the deployments covered 
by such leave, and extends FMLA military caregiver leave to employee-
family members of certain veterans with a serious injury or illness and 
expands the provision of such leave to cover serious injuries or 
illnesses that existed prior to a covered servicemember's active duty 
and were aggravated in the line of duty while on active duty. The 
proposed regulations also implement the AFCTCA, which establishes new 
eligibility requirements for airline flight crew members and flight 
attendants.
    As will be more fully explained later, many of the estimates in the 
analysis of the paperwork requirements derive from data developed for 
the Preliminary Regulatory Impact Analysis (PRIA) under Executive 
Orders 13563 and 12866. However, the specific needs that the PRA 
analysis and PRIA are intended to meet often require that the data 
undergo a different analysis to estimate burdens imposed by the 
paperwork requirements from the analysis used in estimating the effect 
the regulations will have on the economy. In addition for certain 
sections, a range of values is provided in the PRIA; the PRA uses the 
midpoint of those ranges. Consequently, the differing treatment that 
must be undertaken in the PRA analysis and the PRIA of the proposed 
regulatory changes may result in different results. For example, the 
PRA analysis measures the additional burden of the information 
collection on those who are providing information due to the proposed 
regulatory changes; however, the PRIA measures the incremental changes 
expected to result in the broader economy due to the proposed 
regulatory changes. Thus, this PRA analysis will calculate the 
additional paperwork burden in relation to the existing FMLA 
information collection burden arising from this rule. Conversely, the 
regulatory definition for collection of information for PRA purposes 
specifically excludes the public disclosure of information originally 
supplied by the Federal government to the recipient for the purpose of 
disclosure to the public. 5 CFR 1320.3(c)(2). The PRIA, however, may 
need to consider the impact of any regulatory changes in such 
notifications provided by the government. Finally, the PRA definition 
of ``burden'' can exclude the time, effort, and financial resources 
necessary to comply with a collection of information that would be 
incurred by persons in the normal course of their activities (e.g., in 
compiling and maintaining business records) if the agency demonstrates 
that the reporting, recordkeeping, or disclosure activities needed to 
comply are usual and customary. 5 CFR 1320.3(b)(2). The PRIA, however, 
must consider the economic impact of any changes in the proposed 
regulation.
    Circumstances Necessitating Collection: The FMLA requires private 
sector employers of 50 or more employees and 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 the 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 case; to care for the employee's spouse, son, 
daughter, or parent with a serious health condition; to care for the 
employee's own serious health condition that makes the employee unable 
to perform the functions of his or her job; and to address qualifying 
exigencies related to the military call up of a spouse, son, daughter, 
or parent), and to provide up to 26 weeks of unpaid, job-protected 
leave during a single 12-month period to eligible employees to provide 
military caregiver leave to a covered servicemember. FMLA section 404 
requires the Secretary of Labor to prescribe such regulations as 
necessary to enforce this Act. 29 U.S.C. 2654. The proposed 
regulations, which primarily pertain to the expansion of the military 
family leave entitlements and the expansion of FMLA protections to 
airline flight crews, will create additional burdens on the following 
information collections.
    A. Notice to Employee of FMLA Eligibility and Rights and 
Responsibilities [29 CFR 825.300(b) and (c)]. When an employee requests 
FMLA leave or when the employer acquires knowledge that an employee's 
leave may be for an FMLA-qualifying condition, the employer must notify 
the employee within five business days of the employee's eligibility to 
take FMLA leave, or, alternatively, at least one reason why the 
employee is not eligible for FMLA leave (e.g., applicable number of 
months the employee has been employed by the employer, the number of 
hours of service in the 12-month period, whether the employee is 
employed at a worksite where 50 employees are employed at or within 75 
miles of that worksite.) At the same time that the employer provides 
eligibility notice, the employer must provide information detailing the 
specific responsibilities of the employee, including any additional 
requirements for qualifying for FMLA leave, and explain any 
consequences of a failure to meet these responsibilities. If the 
specific information provided by the notice changes, the employer must 
inform the employee of the change within five business days of receipt 
of the employee's first notice of the need for FMLA leave subsequent to 
such change.
    B. Designation Notice [29 CFR 825.300(d)]. The employer is 
responsible in all circumstances for designating leave as FMLA-
qualifying, and for giving notice of the designation to the employee. 
When the employer has enough information to determine whether the leave 
is being taken for an FMLA-qualifying reason, the employer must notify 
the employee whether the leave will be designated and will be counted 
as FMLA leave. Only one notice of designation is required for each 
FMLA-qualifying reason per

[[Page 8978]]

applicable 12-month period, regardless of whether the leave taken due 
to the qualifying reason will be a continuous block of leave or 
intermittent or reduced schedule leave.
    C. Medical Certification and Recertification [29 CFR 825.100(d) and 
825.305 through 825.308]. An employer may require that an employee's 
leave to care for the employee's seriously ill spouse, son, daughter, 
or parent, or due to the employee's own serious health condition that 
makes the employee unable to perform one or more essential functions of 
the employee's position, be supported by a certification issued by the 
health care provider of the eligible employee or of the ill family 
member. The employer must provide notice of this requirement in 
writing. The employer may contact the employee's health care provider 
for purpose of authentication and clarification of the medical 
certification (whether initial certification or recertification) after 
the employer has given the employee an opportunity to cure any 
deficiencies. In addition, an employer must advise an employee whenever 
it finds a certification incomplete or insufficient and state in 
writing what additional information is necessary to make the 
certification complete and sufficient. An employer, at his or her own 
expense and subject to certain limitations, also may require an 
employee to obtain a second and third medical opinion. In addition, an 
employer may also request recertification under certain conditions. The 
employer must provide the employee at least 15 calendar days to provide 
the initial certification and any subsequent recertification. The 
employer must provide seven calendar days (unless not practicable under 
the particular circumstances despite the employee's good faith efforts) 
to cure any deficiency identified by the employer.
    D. Fitness-for-duty Medical Certification [29 CFR 825.100(d) and 
825.312]. As a condition of restoring an employee whose FMLA leave was 
occasioned by the employee's own serious health condition that made the 
employee unable to perform the employee's job, an employer may have a 
uniformly-applied policy or practice that requires all similarly-
situated employees (i.e., same occupation, same serious health 
condition) who take leave for such conditions to obtain and present 
certification from the employee's health care provider that the 
employee is able to resume work. The employee has the same obligations 
to participate and cooperate in providing a complete and sufficient 
certification to the employer in the fitness-for-duty certification 
process as in the initial certification process. An employer is 
permitted to require an employee to furnish a fitness-for-duty 
certificate every 30 days if an employee has used intermittent leave 
during that period and reasonable safety concerns exist concerning the 
employee's ability to perform his job.
    E. Qualifying Exigency Leave [29 CFR 825.309]. Under the FY 2010 
NDAA, qualifying exigency leave was expanded to include the members of 
the Regular Armed Forces along with members of the National Guard and 
Reserves, and to require that the deployment of both types of military 
members be to a foreign country. Section 825.309 establishes that an 
employer may require an employee to provide certification of the 
servicemember's covered active duty or call to covered active duty 
status. Pursuant to current Sec.  825.309(a), the employee may provide 
a copy of the servicemember's active duty orders or other documentation 
issued by the military which indicates that the servicemember is on 
active duty or has been notified of an impending call or order to 
active duty and the dates of the servicemember's active duty service. 
Current section 825.309(b) establishes that when leave is taken for one 
of the qualified exigencies specified in Sec.  825.126, an employer may 
require the eligible employee to provide certification that sets forth 
certain information. Current section 825.309(c) describes the optional 
use form developed by the Department for employees' use in obtaining 
certification that meets the FMLA's certification requirements. Current 
section 825.309(d) establishes the verification process for the 
certifications.
    F. Leave to Care for a Covered Servicemember [29 CFR 825.310]. The 
FY 2010 NDAA expanded the definition of covered servicemember to 
include veterans, and permitted eligible employees to take leave to 
care for certain veterans with a qualifying serious injury or illness. 
It also permits leave to be taken for a covered servicemember whose 
previously existing condition was aggravated by service in the line of 
duty on active duty, and in the case of veterans, when the serious 
illness or injury manifested before or after the servicemember became a 
veteran. When an eligible employee requests FMLA leave to care for a 
covered servicemember with a serious injury or illness, the employer 
may require the employee to provide sufficient certification of the 
serious injury or illness issued by an authorized health care provider. 
Current section 825.310(a) permits an employer to require that certain 
necessary information support the request for leave and defines the 
health care providers who are authorized to provide such certification. 
Current section 825.310(b) and (c) set forth the information an 
employer may require from the authorized health care provider and the 
employee, respectively, in order to support the request for leave. 
Current section 825.310(d) describes the optional form developed by WHD 
for employees' use in obtaining certification that meets the FMLA's 
certification requirements. Current section 825.310(e) describes 
alternatives to the optional form that employers must accept from 
employees obtaining certifications in certain circumstances.
    G. Notice to Employees of Change of 12-Month Period for Determining 
FMLA Entitlement [29 CFR 825.200(d)(1)]. An employer generally must 
choose a single uniform method from four options available under the 
regulations for determining the 12-month period in which the 12-week 
entitlement occurs for the purposes of FMLA leave. An employer wishing 
to change to another alternative is required to give at least 60 days 
notice to all employees.
    H. Key Employee Notification [29 CFR 825.216(b), 825.217 through 
825.219 and 825.300(c)(1)(v)]. An employer that believes that it may 
deny reinstatement to a key employee must give written notice to the 
employee at the time the employee gives notice of the need for FMLA 
leave (or when FMLA leave commences, if earlier) that he or she 
qualifies as a key employee. At the same time, the employer must also 
fully inform the employee of the potential consequences with respect to 
reinstatement and maintenance of health benefits if the employer should 
determine that substantial and grievous economic injury to the 
employer's operations would result if the employer were to reinstate 
the employee from FMLA leave. If the employer cannot immediately give 
such notice, because of the need to determine whether the employee is a 
key employee, the employer must give the notice as soon as practicable 
after receiving the employee's notice of a need for leave (or the 
commencement of leave, if earlier). If an employer fails to provide 
such timely notice, it loses its right to deny restoration, even if 
substantial and grievous economic injury will result from 
reinstatement.
    As soon as an employer makes a good faith determination--based on 
the facts available--that substantial and grievous economic injury to 
its operations will result if a key employee who has given notice of 
the need for FMLA leave or is

[[Page 8979]]

using FMLA leave is reinstated, the employer must notify the employee 
in writing of its determination; that the employer cannot deny FMLA 
leave; and that the employer intends to deny restoration to employment 
on completion of the FMLA leave. The employer must serve this notice 
either in person or by certified mail. This notice must explain the 
basis for the employer's finding that substantial and grievous economic 
injury will result, and, if leave has commenced, must provide the 
employee a reasonable time in which to return to work, taking into 
account the circumstances, such as the length of the leave and the 
urgency of the need for the employee to return.
    An employee may still request reinstatement at the end of the leave 
period, even if the employee did not return to work in response to the 
employer's notice. The employer must then determine whether there will 
be substantial and grievous economic injury from reinstatement, based 
on the facts at the time. If the employer determines that substantial 
and grievous economic injury will result from reinstating the employee, 
the employer must notify the employee in writing (in person or by 
certified mail) of the denial of restoration.
    I. Periodic Employee Status Reports [825.300(c)(2) and 825.311]. An 
employer may require an employee to provide periodic reports regarding 
the employee's status and intent to return to work.
    J. Notice to Employee of Pending Cancellation of Health Benefits 
[29 CFR 825.212(a)]. Unless an employer establishes a policy providing 
a longer grace period, an employer's obligation to maintain health 
insurance coverage ceases under FMLA if an employee's premium payment 
is more than 30 days late. In order to drop the coverage for an 
employee whose premium payment is late, the employer must provide 
written notice to the employee that the payment has not been received. 
Such notice must be mailed to the employee at least 15 days before 
coverage is to cease and advise the employee that coverage will be 
dropped on a specified date at least 15 days after the date of the 
letter unless the payment has been received by that date.
    K. Documenting Family Relationship [29 CFR 825.122(j)]. Current 
section 825.122(j) permits an employer to require an employee giving 
notice of the need for leave to provide reasonable documentation or 
statement of family relationship. This documentation may take the form 
of a child's birth certificate, a court document, or a simple statement 
of the employee regarding family relationship. The employee is entitled 
to the return of any official document submitted for this purpose.
    L. Recordkeeping [29 CFR 825.500]. The FMLA provides that covered 
employers shall make, keep, and preserve records pertaining to the FMLA 
in accordance with the recordkeeping requirements of Fair Labor 
Standards Act section 11(c), 29 U.S.C. 211(c), and regulations issued 
by the Secretary of Labor. 29 U.S.C. 2616. The FMLA provides that no 
employer or plan, fund, or program shall be required to submit books or 
records more than once during any 12-month period unless the Department 
has reasonable cause to believe a violation of the FMLA exists or is 
investigating a complaint. 29 U.S.C. 2616(c).
    Current section 825.500(c) requires employers to maintain basic 
payroll and identifying employee data, including name, address, and 
occupation; rate or basis of pay and terms of compensation; daily and 
weekly hours worked per pay period; additions to or deductions from 
wages; and total compensation paid; dates FMLA leave is taken by FMLA 
eligible employees (available from time records, requests for leave, 
etc., if so designated). Leave must be designated in records as FMLA 
leave; leave so designated may not include leave required under State 
law or an employer plan which is not also covered by FMLA; if FMLA 
leave is taken by eligible employees in increments or less than one 
full day, the hours of leave; copies of employee notices of leave 
furnished to the employer under FMLA, if in writing, and copies of all 
written notices given to employees as required under FMLA and these 
regulations; any documents (including written and electronic records) 
describing employee benefits or employer policies and practices 
regarding the taking of paid and unpaid leave; premium payments of 
employee benefits; records of any dispute between the employer and an 
eligible employee regarding designation of leave as FMLA leave, 
including any written statement from the employer or employee of the 
reasons for the designation and for the disagreement. Under the AFCTCA 
amendment, employers in the airline industry must also maintain records 
that specify the applicable monthly guarantee for each type of employee 
to whom the guarantee applies and must make these records available to 
the Secretary of Labor upon request.
    Current section 825.500(d) requires covered employers with no 
eligible employees to maintain certain basic payroll and identifying 
employee data. Current section 825.500(e) requires covered employers 
that jointly employ workers with other employers to keep all the 
records required by the regulations with respect to any primary 
employees, and to keep certain basic payroll and identifying employee 
data with respect to any secondary employees.
    Current section 825.500(f) provides that if FMLA-eligible employees 
are not subject to FLSA recordkeeping regulations for purposes of 
minimum wage or overtime compliance (i.e., not covered by, or exempt 
from, FLSA), an employer need not keep a record of actual hours worked 
(as otherwise required under FLSA, 29 CFR 516.2(a)(7)), provided that: 
Eligibility for FMLA leave is presumed for any employee who has been 
employed for at least 12 months; and with respect to employees who take 
FMLA leave intermittently or on a reduced leave schedule, the employer 
and employee agree on the employee's normal schedule or average hours 
worked each week and reduce their agreement to a written record.
    Current section 825.500(g) requires employers to maintain records 
and documents relating to any medical certification, recertification, 
or medical history of an employee or employee's family member, created 
for FMLA purposes as confidential medical records in separate files/
records from the usual personnel files. Employers must also maintain 
such records in conformance with any applicable Americans with 
Disability Act (ADA) confidentiality requirements; except that: 
Supervisors and managers may be informed regarding necessary 
restrictions on the work or duties of an employee and necessary 
accommodations; first aid and safety personnel may be informed, when 
appropriate, if the employee's physical or medical condition might 
require emergency treatment; and government officials investigating 
compliance with the FMLA, or other pertinent law, shall be provided 
relevant information upon request. To the extent that records and 
documents created for FMLA purposes contain ``family medical history'' 
or ``genetic information'' as defined in the Genetic Information 
Nondiscrimination Act of 2008 (GINA), employers must maintain such 
records in accordance with the confidentiality requirements of Title II 
of GINA. GINA permits genetic information, including family medical 
history, obtained by the employer in FMLA records and documents to be 
disclosed consistent with the requirements of the FMLA.

[[Page 8980]]

    The FLSA record keeping requirements, contained in 29 CFR part 516, 
are currently approved under Office of Management and Budget (OMB) 
control number 1235-0018; consequently this information does not 
duplicate their burden, despite the fact that for the administrative 
ease of the regulated community this information collection restates 
them.
    Purpose and Use: The Department created optional use forms: WHD 
Publication 1420, WH-380-E, WH-380-F, WH-381, WH-382, WH-384, and WH-
385, and is considering the creation of a new optional use form for the 
certification of leave to care for a covered veteran, to assist 
employers and employees in meeting their FMLA third party notification 
obligations. WHD Publication 1420 allows employers to satisfy the 
general notice requirement. See Sec.  825.300(a). Form WH-380-E allows 
an employee requesting FMLA-leave for his or her own serious health 
condition to satisfy the statutory requirement to furnish, upon the 
employer's request, appropriate certification to support the need for 
leave for the employee's own serious health condition. See Sec.  
825.305(a). Form WH-380-F allows an employee requesting FMLA-leave for 
a family member's serious health condition to satisfy the statutory 
requirement to furnish, upon the employer's request, appropriate 
certification to support the need for leave for the family member's 
serious health condition. See Sec.  825.305(a). Form WH-381 allows an 
employer to satisfy the regulatory requirement to provide employees 
taking FMLA leave with written notice concerning eligibility status and 
detailing specific expectations and obligations of the employee and 
explaining any consequences of a failure to meet these obligations. See 
Sec.  825.300(b) and (c). Form WH-382 allows employers to satisfy the 
regulatory requirement of designating leave as FMLA-qualifying. See 
Sec.  825.301(a). Form WH-384 allows an employee requesting FMLA leave 
based on a qualifying exigency to satisfy the statutory requirement to 
furnish, upon the employer's request, appropriate certification to 
support leave for a qualifying exigency. See Sec.  825.309. Form WH-385 
currently allows an employee requesting FMLA leave based on an active 
duty covered servicemember's serious injury or illness to satisfy the 
statutory requirement to furnish, upon the employer's request, a 
medical certification from an authorized health care provider. See 
Sec.  825.310. The Department is considering the development of a 
separate optional form for the certification for a serious injury or 
illness of a covered veteran, or alternatively amending form WH-385 to 
cover certification of the serious injury or illness of both an active 
duty servicemember and a covered veteran.
    While use of the Department's 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 respective 
rights and meet their respective obligations under the FMLA. The 
recordkeeping requirements are necessary in order for the Department to 
carry out its statutory obligation under FMLA Sec.  106, 29 U.S.C. 
2616, to investigate and ensure employer compliance. The WHD uses these 
records to determine employer compliance.
    Information Technology: The proposed regulations continue to 
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 basic requirement that third-party notifications be 
in writing, with the possible exception for the employee's FMLA request 
(which depends on the requirements of the employer's leave policies), 
there are no restrictions on the method of transmission. Employers and 
employees may meet many of their notification obligations by using DOL-
prepared forms and publications available on the WHD Web site, 
www.dol.gov/whd. These forms are in a PDF, fillable format for 
downloading and printing. Employers may keep records that comply with 
the recordkeeping requirements covered by this information collection 
in any form, including electronic.
    Minimizing 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 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, including records that must be maintained by covered 
employers in the airline industry as outlined in proposed Sec.  
825.500(h), 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 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 
any burden by developing prototype notices for the third-party 
disclosures covered by this information collection.
    Agency Need: The Department is assigned a statutory responsibility 
to ensure employer compliance with the FMLA. The Department uses 
records covered by the FMLA information collection to determine 
compliance, as required of the agency by FMLA Sec.  107(b)(1). 29 
U.S.C. 2617(b)(1). Without the third-party notifications required by 
the law and/or regulations, 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. The discussion above outlines the circumstances 
necessitating the information collection and provides the details of 
when employees and employers must provide certain notices.
    Public Comments: The Department seeks public comments regarding the 
burdens imposed by the information collection 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

[[Page 8981]]

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 
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 Control Number 1235-0003. See 44 U.S.C. 
3507(d); 5 CFR 1320.11. While much of the information provided to the 
OMB in support of the information collection request appears in this 
preamble, 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 FMLA information collection requirements 
may be addressed to the OMB. OMB encourages commenters to submit 
comments by emailing them to OIRA_submissions@omb.eop.gov or faxing 
them to (202) 395-7285. While commenters are encouraged to email or fax 
their comments to OMB to ensure timely receipt of comments, commenters 
may mail OMB their comments by using the following mailing address: 
Office of Information and Regulatory Affairs, Attention: OMB Desk 
Officer for the Wage and Hour Division, Office of Management and 
Budget, 725 17th Street NW., Room 10235, Washington, DC 20503.
    Confidentiality: Much of the information covered by this 
information collection consists of third-party disclosures. Employers 
generally must maintain records and documents relating to any medical 
certification, recertification, or medical history of an employee or 
employee's family members as confidential medical records in separate 
files/records from usual personnel files. Employers must also generally 
maintain such records in conformance with any applicable ADA and/or 
GINA confidentiality requirements. 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.
    Hours Burden Estimates: The Department bases the following burden 
estimates on the estimates the PRIA presented elsewhere in this 
document, except as otherwise noted. The Department estimates that 
there are 381,000 covered employers with 1.2 million establishments. 
There are 72.9 million employees working for covered employers who are 
eligible for leave. In 2005, 7 million employees took leave. 73 FR 
7938.
    A. Employee Notice of Need for FMLA Leave. While employees normally 
will provide general information regarding their absences, the 
regulations may impose requirements for workers to provide their 
employers with more detailed information than might otherwise be the 
case. The Department estimates that providing this additional 
information will take approximately two minutes per employee notice of 
the need to take FMLA leave.
    The Department estimates that there are 193,000 employees who are 
newly eligible to take leave for a qualifying exigency under the FY 
2010 NDAA. Based on leave usage patterns, 30,900 of these employees 
will take leave for a qualifying exigency (16 percent of 193,000 
employees). Based on the leave patterns estimated by the Department 
discussed in the PRIA, the Department estimates that there will be 
679,800 employee requests for qualifying exigency leave.
    The Department also estimates that there are 59,700 employees who 
are newly eligible to take leave to care for a covered veteran under 
the FY 2010 NDAA. Based on leave usage patterns, 15,500 of these 
employees will take leave to care for a covered veteran (26 percent of 
117,790 employees). Based on the leave patterns estimated by the 
Department in the PRIA analysis, the Department estimates that there 
will be 790,500 employee requests for leave to care for a covered 
veteran.
    The Department also estimates that there are 129,760 flight crew 
members eligible to take FMLA leave. However, some of these employees 
may already be entitled to leave similar to FMLA leave under collective 
bargaining agreements. Consequently, the Department anticipates that 
there are 90,560 airline flight crew employees who may be newly 
entitled to FMLA leave pursuant to AFCTCA. The Department estimates 
that 5,951 of these employees will take FMLA leave (5 percent of 
eligible pilots and 7.9 percent of eligible flight attendants). The 
PRIA analysis provides an explanation for how these numbers were 
determined. The Department also anticipates that each of these 
employees will provide his or her employer with 1.5 notices of need for 
FMLA leave, totaling 8,930 employee requests for FMLA leave.
    New burden: 1,479,230 responses (employee notices of leave) x 2 
minutes/60 minutes per hour = 49,308 hours.
    Existing employee notification requirements unaffected by this NPRM 
already impose an estimated burden of 13,419,050 responses and 447,302 
hours.
    Total burden for this requirement is estimated to be 14,898,280 
responses and 496,610 hours.
    B. Notice to Employee of FMLA Eligibility and Rights and 
Responsibilities. The Department estimates that each written notice to 
an employee of FMLA eligibility and notice of rights and 
responsibilities takes approximately ten minutes. The number of 
eligibility and rights and responsibilities notices that employers must 
provide is equal to the number of leave takers.\3\ The Department 
estimates

[[Page 8982]]

that employers will provide 55,330 FMLA eligibility and rights and 
responsibilities notices to employees under the new military and 
airline amendments to the FMLA. Employers may use optional Form WH-381 
to satisfy this requirement.
---------------------------------------------------------------------------

    \3\ Based on the leave patterns for qualifying exigency and 
military caregiver leave, the Department is assuming that all 
subsequent leave requests will be for the same servicemember for 
whom the leave was originally requested. The employee is required to 
notify the employer in each instance of the need for leave. But the 
employer is not required to provide the employee with a notice of 
eligibility or rights and responsibilities notice each time the 
employee requests the leave unless the employee's eligibility status 
changes. For qualifying exigency leave, 30,900 leave takers will 
provide 679,800 employer notices of their need for leave. For 
military caregiver leave, 15,500 leave takers will provide 790,500 
employer notices of their need for leave. However, employers will 
only have to issue 46,400 eligibility notices and rights and 
responsibilities notices.
    However, for the eligible employees who are airline flight crew 
members, the Department is assuming that each of the employees' 1.5 
employer notices of the need for leave are for different FMLA-
qualifying reasons, and therefore employers will need to provide a 
notice of eligibility and a notice of rights and responsibilities 
for each request for leave. 5,951 leave takers will issue 8,930 
employer notices for leave (5,951 x 1.5 leaves = 8,930 notices). 
Employers will issue 8,930 notices of eligibility and notices or 
rights and responsibilities.
---------------------------------------------------------------------------

    New burden: 55,330 total responses (notices of eligibility and 
rights and responsibilities) x 10 minutes/60 minutes per hour = 9,222 
hours.
    Existing employee eligibility and rights and responses notification 
requirements unaffected by this NPRM already impose an estimated burden 
of 21,764,900 responses and 9,491,476 hours.
    Total burden for this requirement is estimated to be 21,820,230 
responses and 9,500,698 hours.

C. Employee Certifications

    1. Medical Certification and Recertification. The Department 
estimates that 90 percent of airline flight crew employees who take 
FMLA leave will do so for a serious health condition of their own or 
that of a family member. The Department also assumes, due to the safety 
concerns of the airline industry, that employers will require that all 
of these employees provide medical certification to their employer. As 
it did in the 2008 paperwork analysis, and with no present reason to 
change its estimate, the Department further estimates that second or 
third opinions and/or recertifications add 15 percent to the total 
number of certifications, and that employees spend 20 minutes in 
obtaining the certifications.\4\ Employers may have employees use 
optional Forms WH-380-E and WH-380-F to satisfy this statutory 
requirement.
---------------------------------------------------------------------------

    \4\ The estimated time of 20 minutes reflects the Department's 
expectation that it will take 20 minutes to complete optional form 
WH-380. The Department assumes that while visiting the health care 
provider for a previously scheduled appointment, the individual will 
have the certification completed by the doctor's office.
---------------------------------------------------------------------------

    5,951 airline flight crew employees taking leave x 90% rate for a 
serious health condition x 90% of employees asked to provide initial 
medical documentation = 4,820 employees providing initial medical 
certification.
    New burden: 4,820 x 1.15 subsequent medical certifications = 5,543 
total employee medical certifications.
    5,543 x 20 minutes/60 minutes per hour = 1,848 hours.
    The Department does not associate a paperwork burden with the 
portion of this information collection that employers complete since--
even absent the FMLA--similar information would customarily appear in 
their internal instructions requesting a medical certification or 
recertification. The Department accounts for health care provider 
burdens to complete these certifications as a ``maintenance and 
operation'' cost burden, which is discussed later.
    2. Fitness-for-Duty Medical Certification. The Department assumes 
that the Federal Aviation Authority (FAA) requires airline flight crew 
employees, specifically pilots and flight attendants, to receive 
regular medical evaluations as a condition of their continued 
employment. Therefore the Department estimates that 50 percent of 
airline pilots and 10 percent of flight attendants will be required to 
submit fitness-for-duty medical certifications pursuant to the FMLA 
regulations. The Department estimates that completing a fitness-for-
duty certification will take an employee ten minutes.
    New burden: 25,135 responses (employee certifications) x 10 
minutes/60 minutes per hour = 4,189 hours.
    3. Certification of Qualifying Exigency for Military Family Leave. 
The Department estimates that 30,900 employee-family members will be 
eligible to take FMLA leave to address qualifying exigencies due to the 
expansion of qualifying exigency leave under the FY 2010 NDAA to 
certain family members of members of the Regular Armed Forces. The 
Department estimates that employers will request certification from 
30,900 employees for qualifying exigency leave. Employers may use 
optional Form WH-384 to satisfy this requirement. The Department 
further estimates that it will take approximately 20 minutes for a 
Human Resources staff member to request, review, and verify the 
employee's certification papers.
    New burden: 30,900 total responses (employee qualifying exigency 
leave certifications) x 20 minutes/60 minutes per hour = 10,300 hours.
    4. Certification for Leave Taken to Care for a Covered 
Servicemember--Current Servicemember. Pursuant to the FY 2010 NDAA, an 
eligible employee-family member may take FMLA leave to care for a 
current servicemember who has a serious injury or illness that existed 
before the member's active duty and was aggravated by service in the 
line of duty while on active duty. At this time the Department does not 
have sufficient information to develop an estimate of employees who 
will qualify for military caregiver leave for a covered servicemember 
with a serious injury or illness that existed prior to the 
servicemember's active duty and was aggravated in the line of duty on 
active duty. Accordingly, the Department will not revise the current 
burden analysis for certification of leave to care for a current 
servicemember at this time. The Department will review the comments 
that it receives in response to the NPRM and based on the received 
comments may revise the burden analysis at the final rule stage.
    5. Certification for Leave Taken to Care for a Covered 
Servicemember--Covered Veteran. The FY 2010 NDAA provided FMLA leave 
for eligible employees to care for a covered veteran with a serious 
injury or illness that was incurred in the line of duty on active duty 
(or existed before the member's active duty and was aggravated in the 
line of duty on active duty) and manifested itself before or after the 
member became a veteran. The Department estimates that 15,500 employees 
will be eligible to take leave to care for a covered veteran. The 
Department expects that employers will request certification forms for 
this leave. The Department estimates that it will take a Human 
Resources specialist 30 minutes to request, review, and verify the 
employee's certification papers.
    New burden: 15,500 responses (certification papers) x 30 minutes/60 
minutes per hour = 7,750 hours.
    All new certification and recertification requirements as a result 
of this NPRM impose a burden of 77,078 responses and 24,087 hours.
    All existing certification and recertification requirements 
unaffected by this NPRM already impose an estimated burden of 
12,080,153 responses and 4,009,851 hours.
    Total burden for this requirement is estimated to be 12,157,231 
responses and 4,033,938 hours.
    D. Notice to Employees of FMLA Designation. The Department 
estimates that each written FMLA designation notice takes approximately 
10 minutes to complete.
    New burden: 55,330 total responses (designation notices) x 10 
minutes/60 minutes per hour = 9,222 hours.
    Existing designation notification requirements unaffected by this 
NPRM already impose an estimated burden of 17,383,325 responses and 
4,693,574 hours.
    Total burden for this requirement is estimated to be 147,438,655 
responses and 4,702,796 hours.
    E. Notice to Employees of Change of 12-month period of determining 
FMLA eligibility. The Department assumes that 10 percent of covered 
airline employers will choose to change their 12-month period for 
determining eligibility since the AFCTCA. The Department also assumes 
these employers will employ 10 percent of newly added eligible

[[Page 8983]]

employees in the airline industry. The Department continues to estimate 
from the 2008 analysis that it will take an employer 10 minutes to make 
this employee notification, and this time was amortized to 1.79336117 
seconds per individual response.
    90,560 newly added employees in the airline industry x 10% for 
employers who change the period = 9,056 responses.
    9,056 responses x 1.79336117 = 5 hours.
    Existing similar notification requirements unaffected by this NPRM 
already impose a burden of 9,580,000 responses and 4,772 hours.
    Total burden for this requirement is estimated to be 9,589,056 
responses and 4,777 hours.
    F. Key Employee Notification. The Department assumes that a very 
small percentage of airline flight crew employees will be determined 
key employees. As such, the Department does associate a burden hour 
estimate with this provision.
    Existing notification requirements unaffected by this NPRM already 
impose a burden of 42,787 responses and 3,566 hours.
    Total burden for this requirement is estimated to be 42,787 
responses and 3,566 hours.
    G. Periodic employee status reports. The Department estimated in 
the 2008 paperwork analysis that employers require periodic status 
reports from 25 percent of FMLA-leave users, and since it has not 
received any evidence to believe otherwise, it continues to estimate 25 
percent today. The Department also estimates that a typical employee 
would normally respond to an employer's request for a status report; 
however to account for any burden the regulations may impose, the 
Department estimates that 10 percent of employees will respond to the 
request only because of the regulatory requirement, imposing a burden 
of two minutes per response. The Department also estimates that each 
such employee provides two periodic status reports.
    New burden: 52,351 leave takers x 25% rate of employer requests x 
10% of employees who comply due to the regulations = 1,309 employee 
responses.
    1,309 employee responses x 2 responses = 2,618 total responses.
    2,618 responses x 2 minutes/60 minutes = 87 hours.
    Existing status report notification requirements unaffected by this 
NPRM already impose an estimated burden of 369,704 responses and 12,323 
hours.
    Total burden for this requirement is estimated to be 372,322 
responses and 12,410 hours.
    H. Documenting Family Relationships. As it did in the 2008 
analysis, the Department estimates that 50 percent of traditional FMLA 
leave takers do so for ``family'' related reasons, such as caring for a 
newborn or recently adopted child or a qualifying family member with a 
serious health condition. 73 FR 7939. As such, the Department assumes 
that 50 percent of airline flight crewmembers who take leave will take 
it for family reasons. (2,976 of 5,951 leave takers). Under the 
military amendments all employees who take leave will be doing so for a 
family-related reason. (46,400 leave takers).
    As it did in the 2008 analysis, the Department estimates that 
employers may require additional documentation to support a family 
relationship in five percent of these cases, and the additional 
documentation will require 5 minutes.
    New burden: 49,376 (employees taking leave for family-related 
reasons) x 5% (additional documentation) = 2,469 employees required to 
document family relationships.
    2,469 employees x 5 minutes/60 minutes per hour = 206 hours.
    Existing family documentation requirements unaffected by this NPRM 
already impose an estimated burden of 183,987 responses and 15,332 
hours.
    Total burden for this requirement is estimated to be 186,456 
responses and 15,538 hours.
    M. Notice to employee of pending cancellation of health benefits. 
Pursuant to the AFCTCA, airline flight crew employees are newly 
eligible to take FMLA-qualifying leave. However, the Department 
believes employer policies and agreements that airline flight crew 
employees may be a party to preclude employers from canceling 
employees' health benefits. Therefore, at this time the Department will 
not revise the current burden analysis for employee notice of pending 
cancellation of health benefits. The Department will review the 
comments that it receives in response to the NPRM, and based on the 
received comments may revise the burden analysis at the final rule 
stage.
    Existing notification requirements unaffected by this NPRM already 
impose a burden of 142,619 responses and 11,885 hours.
    N. General Recordkeeping. The Department believes that the FMLA 
does not impose any additional burden on employers in the airline 
industry, as the records required to be maintained by the FMLA should 
already be maintained by the employers as part of their usual and 
customary business practices. Therefore, the Department is not 
proposing a new burden hour estimate for this provision.
    The existing estimated burden for these elements is 13,419,050 
responses and 279,564 hours.
    Total burden for this requirement is estimated to be 13,419,050 
responses and 279,564 hours.
    Other respondent cost burdens (maintenance and operation): Airline 
flight crew employees seeking FMLA-leave for their own serious health 
condition or the serious health condition of a family member, must 
obtain, upon their employers' request, a certification of their own or 
family member's serious health condition. Similarly, employees seeking 
FMLA leave for military caregiver leave must obtain, upon their 
employer's request, a certification of the covered servicemember's 
serious injury or illness. Often the health care provider's office 
staff completes the form for the provider's signature. In other cases, 
the health care provider personally completes it. In the 2008 analysis, 
the Department assumed that while most health care providers do not 
charge for completing these certifications, some do. The Department has 
no reason to believe that this assumption has changed since its last 
analysis.
    The Department estimates that it will take approximately 20 minutes 
to complete a certification for a serious health condition, and 10 
minutes to complete a fitness for duty certification. The time would 
equal the employee's time in obtaining the certification. The 
Department used the median hourly wage for a physician's assistant of 
$41.54 plus 40 percent in fringe benefits to compute cost of $19.39 for 
the certification of a serious health condition ($58.17 x 20 minutes/60 
minutes per hour), and $9.69 for the fitness-for-duty certification. 
See BLS Occupational Employment Statistics, Occupational Employment and 
Wages, May 2010, http://www.bls.gov/oes/current/oes291071.htm.
    The Department estimates that it will take approximately 20 minutes 
to complete the certification for a covered veteran. Thus, the time 
would equal the employee's time in obtaining the certification. The 
Department used the median hourly wage for a physician's assistant of 
$41.54 plus 40 percent in fringe benefits to compute cost of $19.39 for 
the certification to care for covered veteran ($58.17 x 20 minutes/60 
minutes per hour). See BLS Occupational Employment Statistics, 
Occupational Employment and Wages, May 2010, http://www.bls.gov/oes/current/oes291071.htm.

[[Page 8984]]

    New burden: 15,500 medical certifications for covered veterans x 
$19.39 cost per certification = $300,545.
    The maintenance and operations cost estimate for the existing FMLA 
information collections is $162,821,810.
    Grand total of maintenance and operations cost burden for 
respondents = $163,122,355.
    The burden imposed by this information collection, as proposed to 
be revised, is summarized as follows:
    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: 7,301,451 (52,351 added by 
this NPRM).
    Total Estimated Number of Responses: 91,066,686 (1,681,111 added by 
this NPRM).
    Total Estimated Annual Burden Hours: 19,061,782 (92,137 added by 
this NPRM).
    Total Estimated Annual Other Costs Burdens: $163,122,355 ($300,545 
added by this NPRM).

V. 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. This rule has been designated a ``significant regulatory 
action'' although not economically significant, under section 3(f) of 
Executive Order 12866. However, in keeping with the spirit of Executive 
Order 12866, the Department had the rule reviewed by OMB. The Family 
and Medical Leave Act (FMLA or Act) is administered by the U.S. 
Department of Labor, Wage and Hour Division (WHD). The FMLA provides a 
means for employees to balance their work and family responsibilities 
by taking unpaid leave for certain reasons. The Act is intended to 
promote the stability and economic security of families as well as the 
nation's interest in preserving the integrity of families.
    The FMLA applies to any employer in the private sector engaged in 
commerce or in an industry or activity affecting commerce who employed 
50 or more employees each working day during at least 20 weeks in the 
current or preceding calendar year; all public agencies and local 
education agencies; and most Federal employees.\5\
---------------------------------------------------------------------------

    \5\ Most Federal employees are covered under Title II of the 
FMLA (incorporated in Title V, Chapter 63, Subchapter 5 of the U.S. 
Code), which is administered by the Office of Personnel Management 
under regulations set forth at 5 CFR Part 630, Subpart L.
---------------------------------------------------------------------------

    To be eligible for leave, an individual must:
    [ssquf] Be employed by a covered employer at a worksite that 
employs at least 50 employees within 75 miles;
    [ssquf] Have worked at least 12 months for the employer (not 
necessarily consecutively); and
    [ssquf] Have at least 1,250 hours of service during 12 months 
preceding the beginning of the FMLA leave (as discussed herein, special 
hours of service rules apply to airline flight crew employees).
    The FMLA provides for job-protected, unpaid leave, which may be 
continuous or intermittent, and allows for the substitution of paid 
leave. Employees are entitled to:

[ssbox] A combined total of 12 workweeks of leave in a 12-month period 
for:
    [cir] Birth and care of the employee's child (within one year);
    [cir] Placement with employee of a child for adoption or foster 
care (within one year);
    [cir] Care of a spouse, child, or parent with serious health 
condition;
    [cir] The employee's own serious health condition; and
    [cir] Qualifying exigency arising out of the fact that the 
employee's spouse, son, daughter, or parent is a military member and is 
on covered active duty or has been notified of an impending call or 
order to covered active duty.

    Employees are also entitled to 26 workweeks of leave in a single 
12-month period to care for a covered servicemember with a serious 
injury or illness if the employee is the spouse, son, daughter, parent, 
or next of kin of the servicemember.

A. Need for Regulation

    The proposed changes to the FMLA regulations are primarily to 
implement statutory amendments to the FMLA's military family leave 
provisions and separate statutory changes affecting the eligibility 
requirements for airline flight crewmembers and flight attendants 
(collectively referred to as airline flight crew employees). 
Additionally, the military statutory amendments are designed to make it 
easier for workers with family in military service to balance their 
work and family lives during particularly demanding times without the 
fear of losing their jobs. 73 FR 68070. The amendments relating to the 
airline flight crew employees established a special hours of service 
eligibility requirement in order to address this industry's unique 
scheduling practices and expand access to FMLA-protected leave for 
flight crew employees.
1. National Defense Authorization Act for Fiscal Year 2010 Amendments
    On October 28, 2009, the President signed into law the 2010 
National Defense Authorization Act (FY 2010 NDAA), Public Law 111-84. 
Section 565(a) of the FY 2010 NDAA amends the FMLA. These amendments 
expand the military family leave provisions added to the FMLA in 2008, 
which provide qualifying exigency and military caregiver leave for 
employees with family members who are covered military members.
    The FY 2010 NDAA amendments to the FMLA provide that an eligible 
employee may take FMLA leave for any qualifying exigency arising out of 
the fact that the employee's spouse, son, daughter, or parent is on (or 
has been notified of an impending call to) ``covered active duty'' in 
the Armed Forces. ``Covered Active Duty'' for members of a regular 
component of the Armed Forces means duty during deployment of the 
member with the Armed Forces to a foreign country. For members of the 
U.S. National Guard and Reserves it means duty during deployment of the 
member with the Armed Forces to a foreign country under a call or order 
to active duty in a contingency operation as defined in section 
101(a)(13)(B) of title 10, United States Code. Prior to the FY 2010 
NDAA amendments, (1) qualifying exigency leave did not apply to 
employees with family members serving in a regular component of the 
Armed Forces and (2) qualifying exigency leave for family members of 
members of the National Guard and Reserves was not limited to 
deployment to a foreign country in support a contingency operation.
    The FY 2010 NDAA also expands the military caregiver leave 
provisions of the FMLA. Military caregiver leave entitles an eligible 
employee who is the spouse, son, daughter, parent, or next of kin of a 
``covered servicemember'' to take up to 26 workweeks of FMLA leave in a 
``single 12- month period'' to care

[[Page 8985]]

for a covered servicemember with a serious injury or illness. Under the 
FY 2010 NDAA amendments, the definition of ``covered servicemember'' is 
expanded to include a veteran ``who is undergoing medical treatment, 
recuperation, or therapy for a serious injury or illness'' if the 
veteran was a member of the Armed Forces ``at any time during the 
period of 5 years preceding the date on which the veteran undergoes 
that medical treatment, recuperation, or therapy.'' Prior to the FY 
2010 NDAA amendments, military caregiver leave was limited to care for 
current members of the U.S. Armed Forces, including members of the 
Regular Armed Forces and members of the National Guard and Reserves.
    In addition, the FY 2010 NDAA amends the FMLA's definition of a 
``serious injury or illness'' for a current member of the U.S. Armed 
Forces, including National Guard or Reserves, to include not only a 
serious injury or illness that was incurred by the member in the line 
of duty on active duty but also one that ``existed before the beginning 
of the member's active duty and was aggravated by service in line of 
duty on active duty in the Armed Forces'' that may render the member 
medically unfit to perform the duties of the member's office, grade, 
rank, or rating. For covered veterans, the term is defined as ``a 
qualifying (as defined by the Secretary of Labor) injury or illness 
that was incurred by the member in line of duty on active duty in the 
Armed Forces (or existed before the beginning of the member's active 
duty and was aggravated by service in line of duty on active duty in 
the Armed Forces) and that manifested itself before or after the member 
became a veteran.''
2. Airline Flight Crew Technical Amendments
    On December 21, 2009, the President signed into law the Airline 
Flight Crew Technical Corrections Act, Public Law 111-119. This 
amendment to the FMLA establishes a special hours of service 
eligibility requirement for airline flight crew employees. This 
amendment also permits the Secretary of Labor to provide by regulation 
a method of calculating FMLA leave for airline flight crew employees. 
Airline flight crew employees continue to be subject to the FMLA's 
other eligibility requirements.
    The amendment provides that an airline flight attendant or flight 
crew member meets the hours of service requirement if, during the 
previous 12-month period, he or she has worked or been paid for:
    [ssbox] Not less than 60 percent of the applicable total monthly 
guarantee (or its equivalent), and
    [ssbox] Not less than 504 hours, not including personal commute 
time, or time spent on vacation, medical, or sick leave.

Prior to this amendment, many flight crew employees were not eligible 
for FMLA leave because the nature of the airline industry, including 
regulatory limits on the flying time, prevented them from meeting the 
required 1,250 hours of service requirement. Airline employees other 
than flight crew employees continue to be subject to the 1,250 hours of 
service eligibility requirement with hours of service determined 
according to principles established under the FLSA for compensable work 
time (i.e., ``hours worked'').
Summary of Impacts \6\
---------------------------------------------------------------------------

    \6\ On certain provisions, the Department provides a range of 
estimates. Where the ranges provide a summary of information, the 
midpoint of the range is represented.
---------------------------------------------------------------------------

    The Department projects that the average annualized cost of the 
rule will be somewhat more than $61 million per year over 10 years. The 
rule is expected to cost $72.3 million in the first year, and $59.8 
million per year in subsequent years. The amendment to extend FMLA 
provisions to flight crew employees accounts for 0.5 percent of first 
year costs and 0.7 percent in subsequent years, while military exigency 
and caregiver leave account for 81.4 percent of first year costs and 
99.4 percent of costs in subsequent years. Regulatory familiarization 
costs account for 17.4 percent of first year costs. By provision, the 
costs related to the provision of health benefits account for the 
largest share of costs, about 44.5 percent of costs in the first year 
of the rule, and 53.9 percent of costs each in each of the following 
years.

                            Table 1-1--Summary of Impact of Proposed Changes to FMLA
----------------------------------------------------------------------------------------------------------------
                                                                                        Annualized ($1000)
                                                                                 -------------------------------
                    Component                     Year 1 ($1000)  Year 2 ($1000)   Real discount   Real discount
                                                                                      rate 3%         rate 7%
----------------------------------------------------------------------------------------------------------------
Total...........................................         $72,398         $59,791         $61,226         $61,469
By Amendment * * *
    Any FMLA revision...........................          12,607               0           1,435           1,678
    Flight Crew Technical Amendment.............             372             372             372             372
    NDAA 2010...................................          59,419          59,419          59,419          59,419
        Qualifying Exigency.....................          23,052          23,052          23,052          23,052
        Expanded R&R Leave......................           2,781           2,781           2,781           2,781
        Military Caregiver......................          33,587          33,587          33,587          33,587
By Requirement * * *
    Regulatory Familiarization..................          12,607               0           1,435           1,678
    Employer Notices............................          26,851          26,851          26,851          26,851
    Certifications..............................             722             722             722             722
    Health Benefits.............................          32,218          32,218          32,218          32,218
----------------------------------------------------------------------------------------------------------------

B. Proposed Impacts

1. Industry Profile
    The first step in the analysis is to estimate the number of firms, 
establishments and employees in the public and private sectors that 
will be impacted by the proposed changes. The Department estimates that 
there are a total of 7.9 million firms and government agencies with 
10.6 million establishments in the U.S.\7\ These entities employ 133 
million workers with an annual payroll of $5.9 trillion.\8\

[[Page 8986]]

Estimated annual revenues equal $33.2 trillion and estimated net income 
is $1.1 trillion.\9\
---------------------------------------------------------------------------

    \7\ Number of firms and establishments includes private 
industry, farms, and governments.
    \8\ The Department's analysis is based on: USDA 2007 Census of 
Agriculture, available at: http://www.agcensus.usda.gov/Publications/2007/index.asp; 2007 Annual Survey of State and Local 
Government Employment and Payroll, available at: http://www.census.gov/govs/estimate/; and Unpublished Special Tabulations 
produced by the Bureau of Labor Statistics, Quarterly Census of 
Employment and Wages (QCEW) Program. For more information on the 
QCEW program, please see the Web site: http://www.bls.gov/cew/.
    \9\ Estimated net income does not include net income for farms. 
The Department's analysis is based on: U.S. Census Bureau, 
Statistics of U.S. Businesses, ``Number of Firms, Number of 
Establishments, Employment, Annual Payroll, and Receipts by 
Employment Size of the Enterprise for the United States, All 
Industries--2002''; Unpublished Special Tabulations, BLS; and, IRS, 
2007 Statistics of Income, Returns of Active Corporations, Table5--
Selected Balance Sheet, Income Statement, and Tax Items, by sector, 
by Size of Business Receipts.
---------------------------------------------------------------------------

    After identifying and excluding from the analysis those businesses 
that are not covered by the FMLA, the Department estimates that there 
are 381,000 covered firms and government agencies with 1.2 million 
establishments. These firms employ 91.1 million workers that will 
potentially be impacted by the proposed rule changes. These employers 
have an annual payroll of $5.0 trillion, estimated annual revenues of 
$23.7 trillion, and estimated net income of $1.03 trillion.
    Table 2-1 presents the estimated number of establishments, firms, 
employment, annual wages, revenue, and net income for all employers. 
The following subsection describes in detail the methods and data 
sources used to develop the industry profile.
2. Methods and Data Sources
    In order to determine the impact of this proposed rule, it is 
important to understand the analysis underlying the 2008 final rule. 
Therefore, this section describes the data sources and methods used to 
calculate the 2008 industry profile and identify employers that will be 
impacted by the proposed rule. The foundation for the profile is a 
special tabulation of data produced by the Bureau of Labor Statistics 
(BLS) Quarterly Census of Employment and Wages (QCEW) Program. The 
tabulation describes the distribution of establishments and employment 
by major industry division (2-digit NAICS level) across nine employment 
size categories. As explained more fully below, the analysis is based 
on establishment-level data because employer coverage and employee 
eligibility for the proposed rule is determined, in part, by 
establishment size.
    The number of establishments and employment for each 2-digit 
industry, as defined by the North American Industry Classification 
System (NAICS), by employment size class, were obtained directly from 
BLS Quarterly Census of Employment and Wages Business Employment 
Dynamics (QCEW).\10\ The number of farms was obtained from the U.S. 
Department of Agriculture 2007 Census of Agriculture. The number of 
governments and number of government workers was obtained from the 
Census of Governments.
---------------------------------------------------------------------------

    \10\ Unpublished Special Tabulations, BLS.
---------------------------------------------------------------------------

    The number of firms was determined by distributing the BLS QCEW 
total number of firms at the 2-digit industry level to each size class 
using the proportion of firms in each size class calculated from the 
Statistics of U.S. Businesses 2006. The Department used a similar 
approach to determine the annual payroll within each industry. The 
total annual payroll at the 2-digit industry level was distributed to 
each of the employment size classes using the proportion of payroll in 
each size class calculated from the Statistics of U.S. Businesses 
2006.\11\ Annual wages for government entities were obtained from the 
U.S. Census of Governments.\12\
---------------------------------------------------------------------------

    \11\ Statistics of U.S. Businesses, 2006 features a range of 
size classes; in some cases these size classes were aggregated to 
match the size classes available in the BLS Quarterly Census of 
Employment and Wages Business Employment Dynamics data set.
    \12\ 2007 Annual Survey of State and Local Government Employment 
and Payroll, available at: http://www.census.gov/govs/estimate/.
---------------------------------------------------------------------------

    In order to determine estimated 2008 revenues for each industry and 
employment size class, the Department calculated the receipts per 
employee in each size class from the 2007 Statistics of U.S. Business 
by aggregating the 2007 size classes to match BLS size classes, then 
dividing total receipts by the number of employees in each size class. 
Then, the Department estimated the BLS worker output index and producer 
price index for each two-digit sector as a weighted average of 
industries composing that sector. For sectors where no indices were 
available, the Department used the median value from those sectors with 
indices. Finally, to obtain an estimate of 2008 revenues, the 
Department multiplied receipts per employee in each size class by the 
2008 number of employees in each size class, the worker output index 
and the producer price index. Government revenues were directly 
obtained from the 2007 Census of Government Finance.\13\
---------------------------------------------------------------------------

    \13\ U.S. Census Bureau 2007 Census of Government Finance, 
available at: http://www.census.gov/govs/estimate/index.html#state_local.
---------------------------------------------------------------------------

    To determine estimated 2008 net income for each industry and 
employment class size, the Department calculated the average revenues 
per firm in each size class and calculated the ratio of net income to 
total receipts using the 2007 IRS Statistics of Income.\14\ The 
estimated average revenue per firm in each size class was used to 
select an appropriate ``size of business receipts'' category from 
Statistics of Income for a size class in a particular industry and to 
generate the ratio of net income to total receipts for that category. 
The 2007 ratio of net income to total receipts was multiplied by the 
estimated 2008 revenues in each size class to calculate the estimated 
2008 net income. Government net income was estimated by subtracting 
expenditures from revenues.\15\
---------------------------------------------------------------------------

    \14\ Internal Revenue Service, 2007 Statistics of Income, 
Returns of Active Corporations, Table 5--Selected Balance Sheet, 
Income Statement, and Tax Items, by Sector, by Size of Business 
Receipts.
    \15\ 2007 Census of Government Finance.
---------------------------------------------------------------------------

3. Covered Employers
    The FMLA applies to any employer in the private sector engaged in 
commerce or in an industry affecting commerce who employed 50 or more 
employees each working day during at least 20 weeks in the current or 
preceding calendar year; all public agencies and local education 
agencies; and most Federal employees.
    First, the Department dropped from the profile all establishments 
in employment size classes of less than 50 employees (i.e., 0-49 
employees) except for those in elementary and secondary education. For 
the purpose of this analysis, all Federal government employers are 
assumed to be covered by FMLA regulations as administered by the Office 
of Personnel Management and, therefore, not subject to these revisions; 
State and local government employees, as well as U.S. Postal Service 
employees, are covered by this proposed rulemaking and are included in 
the profile of covered workers. Additionally, based on estimates from 
the 2007 Census of Agriculture, it is likely that very few farms employ 
more than 50 employees, and among those that do, very few of their 
employees are eligible for FMLA due to the seasonality of the work. As 
a result, this analysis assumes that no farm employers are covered by 
FMLA.\16\ See Table 2-2 for a summary of covered employers.
---------------------------------------------------------------------------

    \16\ Based on the 2007 Census of Agriculture, about 2% of all 
farms have more than 10 hired employees, suggesting that the number 
of covered farms is likely very close to zero. Due to the seasonal 
nature of farm employment, it is similarly likely that few employees 
would be eligible for FMLA leave even if the farm were covered.
---------------------------------------------------------------------------

    Additionally, the Department used Statistics of U.S. Business, 2006 
at the 6-digit NAICS level to identify the proportion of employers in 
NAICS 61 ``Education Services'' who are

[[Page 8987]]

categorized as ``Elementary and Secondary Education.'' This proportion 
was used to calculate the number of employers in each size class in 
NAICS 61 that are considered local education agencies, and, therefore, 
covered by FMLA regardless of size. These employers were subtracted 
from the broader category of education services, and treated separately 
by the analysis; the remaining employers in education services with 
fewer than 50 employees were dropped from the profile.
    Next, the Department calculated an appropriate adjustment factor to 
account for establishments with fewer than 50 employees at a worksite 
owned by a firm with more than 50 employees within 75 miles. It is 
necessary to add an estimated number of these employees back in to the 
industry profile to avoid underestimating the number of covered 
employers and eligible employees affected by the proposed rule.
    The Department calculated this adjustment following the approach 
described in the 2007 ``Preliminary Analysis of the Impacts of 
Prospective Revision to the Regulation Implementing the FMLA of 1993 at 
29 CFR 825'' (hereafter, ``the 2007 PRIA'').\17\ In summary, the 
Department estimated an upper and lower bound on the number of 
employees who may be employed at worksites with less than 50 employees 
owned by firms with greater than 50 employees within 75 miles, and 
calculated the difference between these two estimates. In the absence 
of reliable data on the geographic proximity of establishments owned by 
the same firm, and employment at those establishments, we assumed 50 
percent of workers at these establishments are employed at covered 
worksites.
---------------------------------------------------------------------------

    \17\ CONSAD Research Corporation, December 7, 2007. Pages 6-8.
---------------------------------------------------------------------------

    The lower bound is estimated at the 2-digit industry level as the 
employment in establishments with more than 50 employees according to 
the U.S. County Business Patterns of 2007.\18\ The upper bound is 
estimated as employment in firms with greater than 50 employees 
according to the Statistics of U.S. Businesses 2007 Small employment 
size classes.\19\ Next, the Department calculated fifty percent of the 
difference between the upper and lower bound to estimate the number of 
workers at covered worksites of less than 50 employees in 2007. This 
estimate was then calculated as a percent of total employment in each 
industry, and that percent multiplied by the total employment in each 
industry in 2008 to estimate the number of workers at covered worksites 
of less than 50 employees in 2008. The Department did not attempt to 
distribute these workers to size classes. This approach was repeated to 
estimate the number of establishments and annual payroll for this 
category.
---------------------------------------------------------------------------

    \18\ U.S. County Business Patterns of 2007, available at URL: 
http://www.census.gov/econ/cbp/download/07_data/index.htm.
    \19\ Statistics of U.S. Businesses, available at URL: http://www.census.gov/econ/susb/.

                                        Table 2-1--2008 Industry Profile: All Private and Public Sector Employers
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Number of                      Number of    Annual payroll       Estimated       Estimated net
             NAICS                    Industry        establishments     Employment       firms          ($1000)      revenues ($1000)   income ($1000)
--------------------------------------------------------------------------------------------------------------------------------------------------------
11.............................  Agriculture,                  93,063       1,083,602       86,256        30,293,755       191,671,485         2,407,103
                                  Forestry, Fishing
                                  & Hunting.
11f............................  Farms.............         2,204,792         843,000    2,204,792            18,349       283,520,000                 *
21.............................  Mining............            29,816         728,810       21,206        61,569,636       265,308,320        23,777,149
22.............................  Utilities.........            16,000         560,628        7,296        46,832,814       588,750,468        28,522,162
23.............................  Construction......           788,982       6,691,659      686,282       348,060,594     1,764,016,511        13,137,722
31-33..........................  Manufacturing.....           346,637      12,991,886      284,894       727,472,090     5,042,240,515       220,025,292
42.............................  Wholesale Trade...           587,802       5,900,701      341,387       366,499,181     5,217,289,386        34,862,575
44-45..........................  Retail Trade......           587,802       5,900,701      341,387       366,499,181     5,217,289,386        34,862,575
48-49..........................  Transportation and           207,554       4,981,034      154,026       182,514,664       920,250,059        14,548,904
                                  Warehousing *.
51.............................  Information.......           136,001       2,970,258       72,676       210,177,173       829,642,598        46,672,698
52.............................  Finance and                  458,828       5,823,542      233,643       492,482,993     2,590,473,795       114,918,333
                                  Insurance.
53.............................  Real Estate and              342,250       2,085,053      243,368        90,735,012       439,247,207        14,606,997
                                  Rental and
                                  Leasing.
54.............................  Professional,                933,257       7,875,748      695,416       578,284,495     1,476,151,016        18,463,759
                                  Scientific &
                                  Technical Serv.
55.............................  Management of                 48,434       1,895,781       35,257       178,611,324       466,204,666        56,954,063
                                  Companies &
                                  Enterprises.
56.............................  Admin, Support,              432,089       7,705,263      315,462       254,989,288       649,497,228         4,026,201
                                  Waste Mgmt &
                                  Remed Serv.
61.............................  Education                     84,911       2,501,830       67,800        96,989,952       268,567,412         4,714,997
                                  Services--Total.
61a............................  Education                     64,952       1,623,889       51,100        72,612,918       185,424,684         3,752,850
                                  Services--all
                                  others.
61e............................  Education                     19,959         877,941       18,639        24,377,033        83,142,727           958,024
                                  Services--Element
                                  ary and Secondary.
62.............................  Health Care and              748,151      15,910,960      594,285       655,441,919     1,749,782,977        14,443,129
                                  Social Assistance.
71.............................  Arts,                        116,178       1,816,000       98,613        62,461,364       193,817,674         2,970,331
                                  Entertainment,
                                  and Recreation.

[[Page 8988]]

 
72.............................  Accommodation and            591,605      11,218,253      447,113       189,461,657       559,882,364         4,192,717
                                  Food Services.
81 & 95........................  Other Services &           1,112,327       4,466,292      455,279       128,156,787       543,507,574         3,291,846
                                  Auxiliaries.
99.............................  Unclassified......           140,476         190,374      100,969         6,592,088        29,688,367           763,157
                                 All industries....        10,437,770     113,977,648    7,786,426     5,107,828,608    29,672,157,281       717,263,252
                                 Government........           179,952      19,385,969       89,526       769,877,876     3,536,511,409       401,304,167
--------------------------------------------------------------------------------------------------------------------------------------------------------
          Public and Private Sector Total                  10,617,722     133,363,617    7,875,952     5,877,706,485    33,208,668,690     1,118,567,419
--------------------------------------------------------------------------------------------------------------------------------------------------------
*Sources: BLS Unpublished special tabulations; 2007 Annual Survey of State and Local Government Employment and Payroll; 2007 Census of Government
  Finance; Census of Agriculture; IRS 2001 Statistics of Income.
* Net income for farms is not available.
* NAICS code 48-49 includes the Postal Service (Source: www.usps.com, and USPS Annual Report 2008); postal service employees are covered by the proposed
  rulemaking while most other Federal employees are covered under FMLA regulations administered by the Office of Personnel Management.


                                                   Table 2-2--2008 Industry Profile: Covered Employers
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Number of                      Number of    Annual payroll       Estimated       Estimated net
             NAICS                    Industry        establishments     Employment       firms          ($1000)      revenues ($1000)   income ($1000)
--------------------------------------------------------------------------------------------------------------------------------------------------------
11.............................  Agriculture,                   4,867         537,602        2,043         9,150,199        90,343,170         1,295,858
                                  Forestry, Fishing
                                  & Hunting.
11f............................  Farms.............                 *               *            *                 *                 *                 *
21.............................  Mining............             5,370         534,418        1,614        53,624,288       214,181,588        22,080,354
22.............................  Utilities.........             6,428         472,599          915        48,585,145       503,859,306        26,102,570
23.............................  Construction......            25,880       2,651,363       19,032       181,278,503       787,171,326         6,956,491
31-33..........................  Manufacturing.....            63,903      10,272,292       34,929       637,870,080     4,435,460,496       211,718,345
42.............................  Wholesale Trade...            78,026       3,056,807       21,258       291,441,021     2,862,989,339        21,066,806
44-45..........................  Retail Trade......           215,675      10,146,178       22,267       338,457,243     3,998,484,468        84,801,022
48-49..........................  Transportation and            32,748       3,907,594        8,755       216,154,621       715,836,368        12,813,522
                                  Warehousing *.
51.............................  Information.......            38,790       2,323,185        5,025       205,020,423       693,282,719        42,915,077
52.............................  Finance and                  115,439       4,007,678        9,251       477,979,216     2,195,244,677       104,279,817
                                  Insurance.
53.............................  Real Estate and               37,505         842,136        5,183        62,400,405       162,795,517         8,385,978
                                  Rental and
                                  Leasing.
54.............................  Professional,                 59,834       4,020,484       17,396       407,974,385       789,102,823        13,716,076
                                  Scientific &
                                  Technical Serv.
55.............................  Management of                 22,249       1,650,176       24,332       187,531,345       334,394,917        40,851,477
                                  Companies &
                                  Enterprises.
56.............................  Admin, Support,               52,724       5,415,739       20,048       218,388,045       389,310,585         2,811,964
                                  Waste Mgmt &
                                  Remed Serv.
61.............................  Education                         --              --           --                --                --                --
                                  Services--Total.
61a............................  Education                      7,557       1,328,922        3,297        67,069,643       158,106,124         3,524,541
                                  Services--all
                                  others.
61e............................  Education                     19,959         877,941       18,639        24,377,033        83,142,727           958,024
                                  Services--Element
                                  ary and Secondary.
62.............................  Health Care and              114,670      11,364,063       34,298       523,657,606     1,201,616,565        12,720,148
                                  Social Assistance.
71.............................  Arts,                         10,311       1,134,984        5,779        38,736,030       115,713,478         2,110,154
                                  Entertainment,
                                  and Recreation.
72.............................  Accommodation and            105,210       5,955,522       27,601       150,133,805       285,088,709         2,949,814
                                  Food Services.
81 & 95........................  Other Services &              50,994       1,260,055        9,486        59,437,649       170,730,790         1,664,491
                                  Auxiliaries.
99.............................  Unclassified......                13           1,185           11                 0                 0                 0
                                                    ----------------------------------------------------------------------------------------------------
                                 All industries....         1,068,152      71,760,923      291,159     4,199,266,686    20,186,855,692       623,722,527
                                 Government........           179,952      19,385,969       89,526       769,877,876     3,536,511,409       401,304,167
                                ------------------------------------------------------------------------------------------------------------------------

[[Page 8989]]

 
    Total......................  ..................         1,248,104      91,146,892      380,685     4,969,144,562    23,723,367,101     1,025,026,694
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sources: BLS Unpublished special tabulations; 2007 Annual Survey of State and Local Government Employment and Payroll; 2007 Census of Government
  Finance; Census of Agriculture; IRS 2001 Statistics of Income.
* Based on the 2007 Census of Agriculture, about 2% of all farms have more than 10 hired employees, suggesting that the number of covered farms is
  likely very close to zero. Due to the seasonal nature of farm employment, it is similarly likely that few employees would be eligible for FMLA leave
  even if the farm were covered.
* NAICS code 48-49 includes the Postal Service (Source: www.usps.com, and USPS Annual Report 2008); postal service employees are covered by the proposed
  rulemaking while most other Federal employees are covered under FMLA regulations administered by the Office of Personnel Management.

C. FMLA Leave Profile

    This section describes how, in light of the recent amendments, the 
Department estimated the number of covered, eligible workers who may be 
in a position to take qualifying exigency or military caregiver leave 
and the number of leaves they may take, and the number of covered 
eligible flight crew members and flight attendants who may take FMLA 
leave and the number of leaves they may take.
1. Military Family Leave Under FMLA
    The proposed changes to the military family leave provisions of 
FMLA impact a variety of employees and employers across the economy. 
While these proposed changes do not alter the conditions for employer 
coverage or employee eligibility under the FMLA, they do change the 
circumstances under which eligible employees who are family members of 
covered servicemembers qualify for FMLA leave and, as a result, will 
affect the number and frequency of FMLA leaves taken for those reasons.
    In order to estimate the number of individuals who may take leave 
under the qualifying exigency or military caregiver provisions as a 
result of the proposed changes, the Department estimated the number of 
servicemembers or veterans covered by the amendments, completed an age 
profile of those individuals and estimated the number of eligible 
family members or potential caregivers likely to be associated with 
each age range. This method is described in full detail in Appendix A.
a. Qualifying Exigency
    The FY 2010 NDAA amendments to the FMLA provide that an eligible 
employee may take FMLA leave for any qualifying exigency arising out of 
the fact that the employee's spouse, son, daughter, or parent is on (or 
has been notified of an impending call to) covered active duty in the 
Armed Forces. For members of a regular component of the Armed Forces, 
this means duty during deployment to a foreign country. For members of 
the U.S. National Guard and Reserves, it means duty during deployment 
to a foreign country under a call or order to active duty under a 
provision of law referred to in section 101(a)(13)(B) of title 10, 
United States Code.
    To determine the number of eligible employees who may take FMLA 
leave as a result of this amendment, the Department first estimated the 
number of servicemembers on covered active duty and the number of 
family members who may be eligible and employed at a covered employer 
and then subtracted those servicemembers and family members already 
entitled to take qualifying exigency leave prior to the FY 2010 NDAA 
amendments. Clear, consistent data on the number of military personnel 
deployed in any given year are difficult to find; many sources, for 
example, do not adequately distinguish military personnel deployed 
overseas from those stationed overseas. In addition, estimates might 
vary significantly depending on sources utilized.\20\ Furthermore, when 
deployments do occur, a Congressional Research Service report showed 
that estimates of personnel involved might vary significantly depending 
on definition and source. Thus, estimates of ``boots on the ground'' in 
Iraq between 2003 and 2008 are only 30 percent to 60 percent of the 
total involved when personnel outside Iraq are included.\21\ Therefore, 
the Department drew on several data sources to determine the number of 
servicemembers likely to be called to covered active duty in the Armed 
Forces annually.
---------------------------------------------------------------------------

    \20\ See, for example, the promisingly, but misleadingly, 
titled: Kane, T. 2004. Global U.S. Troop Deployment, 1950-2003. The 
Heritage Foundation. October 27. Accessed at http://www.heritage.org/research/reports/2004/10/global-us-troop-deployment-1950-2003 on October 7, 2010.
    \21\ Belasco, A. 2009. Troop Levels in the Afghan and Iraq Wars, 
FY2001-FY2010: Cost and Other Potential Issues. Congressional 
Research Service. July 2. Accessed at http://www.fas.org/sgp/crs/natsec/R40682.pdf on October 7, 2010.
---------------------------------------------------------------------------

    Table 3-1 provides a summary of deployments of the U.S. Armed 
Forces from 1960 through 2007. Although composed of the best data found 
to date, some estimates of personnel deployed appear to use more 
restrictive definitions than would be covered by the Department's 
definition of covered active duty. For example, the table shows 
deployment of 1,200 personnel for operations in Lebanon from 1982 
through 1984. However, this appears to include only those Marine Corps 
troops that were on the ground in Lebanon, but excludes sailors on the 
Navy support ships that were also deployed in this operation.\22\
---------------------------------------------------------------------------

    \22\ For example, the U.S.S. New Jersey provided offshore fire 
support during this operation; this ship alone has a crew of about 
1,900. Thus, this source may use a ``boots on the ground'' 
definition.

                                       Table 3-1--U.S. Deployments and Total Active Military Personnel, 1960-2007
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Deployed Personnel         Total
                                                Total active   --------------------------  deployed as
                    Year                          military                                 percent of                      Deployment
                                               personnel [b]     Total [a]      Active    total active
--------------------------------------------------------------------------------------------------------------------------------------------------------
1960.......................................          2,490,000          900          900          0.04  Vietnam [c]
1961.......................................          2,550,000        3,000        3,000          0.12

[[Page 8990]]

 
1962.......................................          2,690,000       11,000       11,000          0.41
1963.......................................          2,700,000       16,000       16,000          0.59
1964.......................................          2,690,000       23,000       23,000          0.86
1965.......................................          2,720,000      184,000      184,000          6.76
1966.......................................          3,230,000      385,000      385,000         11.92
1967.......................................          3,410,000      486,000      486,000         14.25
1968.......................................          3,490,000      536,000      536,000         15.36
1969.......................................          3,450,000      475,000      475,000         13.77
1970.......................................          2,980,000      335,000      335,000         11.24
1971.......................................          2,630,000      157,000      157,000          5.97
1972.......................................          2,360,000       24,000       24,000          1.02
1973.......................................          2,230,000           50           50          0.00
1974.......................................          2,160,000
1975.......................................          2,100,000
1976.......................................          2,080,000
1977.......................................          2,070,000
1978.......................................          2,060,000
1979.......................................          2,030,000
1980.......................................          2,050,000
1981.......................................          2,080,000
1982.......................................          2,110,000       10,000       10,000          0.47  Lebanon [e], Grenada [e]
1983.......................................          2,120,000        1,200        1,200          0.06  Lebanon [e]
1984.......................................          2,140,000        1,200        1,200          0.06
1985.......................................          2,150,000
1986.......................................          2,170,000
1987.......................................          2,170,000
1988.......................................          2,140,000
1989.......................................          2,130,000       27,000       27,000          1.27  Panama [e]
1990.......................................          2,050,000
1991.......................................          1,990,000      560,000      476,000         28.14  Iraq (1) [f]
1992.......................................          1,810,000       25,800       25,800          1.43  Iraq OSW [f], Somalia [e]
1993.......................................          1,710,000       25,800       25,800          1.51
1994.......................................          1,610,000       26,500       26,500          1.65  Somalia [e], Rwanda [e], Haiti [e]
1995.......................................          1,520,000       12,200       12,200          0.80  Somalia [e], Haiti [e], Bosnia [e]
1996.......................................          1,470,000        9,300        9,300          0.63  Haiti [e], Bosnia [e]
1997.......................................          1,440,000        1,400        1,400          0.10  Iraq ONW [f]
1998.......................................          1,410,000
1999.......................................          1,390,000       37,100       37,100          2.67  Kosovo [f]
2000.......................................          1,380,000
2001.......................................          1,390,000       83,400       83,400          6.00  Afghanistan [d]
2002.......................................          1,410,000       21,100       21,100          1.50
2003.......................................          1,430,000      237,600      178,200         16.62  Afghanistan [d], Iraq (2) [g]
2004.......................................          1,410,000      236,100      177,100         16.74
2005.......................................          1,380,000      258,900      194,200         18.76
2006.......................................          1,380,000      265,400      199,100         19.23
2007.......................................          1,380,000      285,700      214,300         20.70
Average....................................          2,102,000       99,200       90,800          4.7   Overall, 1960-2007
                                                     2,140,000      144,000      132,000          6.7   Deployment Years Only
--------------------------------------------------------------------------------------------------------------------------------------------------------
[a] Total deployed personnel is equal to the active personnel plus Reserve and/or National Guard personnel.
[b] Kane, T. 2004. Global U.S. Troop Deployment, 1950-2003. The Heritage Foundation. October 27. Accessed at http://www.heritage.org/research/reports/2004/10/global-us-troop-deployment-1950-2003 on October 7, 2010.
[c] American War Library. Vietnam War Allied Troop Levels 1960-73. Accessed at: http://www.americanwarlibrary.com/vietnam/vwatl.htm on October 7, 2010.
[d] Belasco, A. 2009. Troop Levels in the Afghan and Iraq Wars, FY2001-FY2010: Cost and Other Potential Issues. Congressional Research Service. July 2.
  Accessed at http://www.fas.org/sgp/crs/natsec/R40682.pdf on October 7, 2010.
[e] Sarafino, N.M. 1999. Military Interventions by U.S. Forces from Vietnam to Bosnia: Background, Outcomes, and ``Lessons learned'' for Kosovo.
  Congressional Research Service. May 20.
[f] U.S. Department of Defense, Deployment Health Clinical Center (DHCC): Deployments by Operation. Accessed at http://www.pdhealth.mil/dcs/deploy_op.asp on October 7, 2010.
[g] ``Contingency Tracking System deployment file for Operation Enduring Freedom and Iraqi Freedom, as of: October 31, 2007.'' Accessed at: http://veterans.house.gov/Media/File/110/2-7-08/DoDOct2007-DeploymentReport.htm.
OSW (Operation Southern Watch) and ONW(Operation Northern Watch) refer to operations in support of the Iraqi no-fly zones.

    Supplementing the deployment data with annual active military 
personnel counts, the Department estimated the annual number and 
percent of military personnel deployed on average over the 1960 to 2007 
period. Over the entire 48-year period, each year the U.S. deployed on 
average about 99,200 of its 2.1 million personnel active military force

[[Page 8991]]

(4.7 percent) on operations that meet the definition of covered active 
duty. The overall average covers a wide variation in the timing, 
duration, and size of those operations; of the 48 years included in 
Table 3-1, in:
    [ssbox] 16 years, essentially no personnel were deployed (with the 
exception of 50 servicemembers in Vietnam in 1973);
    [ssbox] 18 years, 900 to 37,100 personnel were deployed, an average 
of 15,400 per year (0.8 percent of active servicemembers);
    [ssbox] 14 years (Vietnam and the two Iraq conflicts), deployments 
ranged from 83,400 to 560,000 personnel, an average of 320,400 per year 
(13.9 percent of active servicemembers).

Finally, with the exception of the Vietnam and second Iraq conflicts, 
most of the conflicts listed in Table 3-1 were for two years or less.
    Based on the information provided in Table 3-1, and acknowledging 
the limitations of those data, the Department judged that the simple 
average of 99,200 deployed personnel does not adequately represent the 
typical number of service personnel on covered active duty in any given 
year for projecting the costs associated with this rule. The Department 
also calculated that, on average, 144,000 personnel per year were 
deployed in the 33 years in which a deployment occurred. Using this 
figure instead to represent average annual deployments on covered 
active duty provides a 45 percent cushion to account for data 
inconsistencies and omissions. Therefore, for the purposes of this 
PRIA, we assume an average of 144,000 military personnel are deployed 
per year on covered active duty.
    Two additional adjustments to this estimate must be made:
    [ssbox] Qualifying exigency leave for eligible family members of 
National Guard and Reserve personnel was promulgated in 2008.
    [ssbox] Military personnel may deploy more than once in any given 
year; if their eligible family members use less than the entire 
allotment of leave on the first deployment (12 weeks), they may use 
some or all of the remaining leave on subsequent deployments that year.

Data on U.S. military deployments showed that 17 percent of personnel 
deployed to Iraq in 1991 were Reserve units, while 28 percent of 
personnel deployed to Iraq between 2003 and 2007 were Reserve or 
National Guard units.\23\ Therefore, the Department adjusted the 
estimated number of personnel downward by 15 percent for 1991, and 25 
percent for 2003 through 2007. Thus, we estimate that on average 
132,000 active military personnel per year are deployed on covered 
active duty.
---------------------------------------------------------------------------

    \23\ Belasco, A. 2009. Troop Levels in the Afghan and Iraq Wars, 
FY2001-FY2010: Cost and Other Potential Issues. Congressional 
Research Service. July 2. Accessed at http://www.fas.org/sgp/crs/natsec/R40682.pdf on October 7, 2010.
    ``Contingency Tracking System deployment file for Operation 
Enduring Freedom and Iraqi Freedom, as of: October 31, 2007.'' 
Accessed at: http://veterans.house.gov/Media/File/110/2-7-08/DoDOct2007-DeploymentReport.htm.
---------------------------------------------------------------------------

    The Department used a Department of Defense news release on typical 
deployment lengths in the Iraq conflict by service (Army, 1 year; Navy 
and Marines, six months; Air Force, 3 months) \24\ to estimate the 
average number of deployments per person. This average was weighted by 
the relative percent of active personnel by service deployed to Iraq 
(Army, 61 percent; Navy and Marines, 28 percent; Air Force, 11 percent) 
\25\ to determine that the military would use 1.49 deployments to 
maintain one person in Iraq for one year. Thus, deployment of 132,000 
personnel might require 197,000 actual deployments per year.
---------------------------------------------------------------------------

    \24\ DOD News Briefing with Secretary Gates and Gen Pace from 
the Pentagon. April 11, 2007. Available at URL: http://www.defense.gov/Transcripts/Transcript.aspx?TranscriptID=3928. See 
also: Powers, R. 2007. ``Joint Chiefs Continue to Examine Deployment 
Lengths.'' April 14. Accessed at http://usmilitary.about.com/od/terrorism/a/deploylength.htm.
    \25\ ``Contingency Tracking System deployment file for Operation 
Enduring Freedom and Iraqi Freedom, as of: October 31, 2007.'' 
Accessed at: http://veterans.house.gov/Media/File/110/2-7-08/DoDOct2007-DeploymentReport.htm.
---------------------------------------------------------------------------

    In the 2008 final rule, the Department estimated the joint 
probability that a servicemember will have one or more family members 
(parent, spouse, or adult child), that those family members will be 
employed at an FMLA-covered establishment, and that they would be 
eligible to take FMLA leave under the qualifying exigency provision 
(see 2007 PRIA and Appendix A). Applying these joint probabilities to 
the 197,000 annual deployments, the Department estimates approximately 
193,000 family members will be eligible to take FMLA leave to address 
qualifying exigencies. Military deployments represent a nonroutine 
departure from normal family life to potentially long-term exposure to 
a high stress, high risk environment, often at relatively short notice. 
Therefore, the Department assumes the rate at which eligible employees 
take FMLA leave for this purpose will be twice the rate (about 16 
percent) of those taking regular FMLA leave (7.9 percent). The 
Department does not assert that only 16 percent of family members will 
take leave for reasons related to the servicemember's deployment, but 
that 16 percent will use leave designated as FMLA leave for qualifying 
exigencies. Based on these assumptions, the Department estimates 30,900 
family members will take FMLA leave annually to address qualifying 
exigencies.
    In the 2008 final rule, the Department developed a profile of the 
``typical'' usage of qualifying exigency leave over the course of a 12-
month period for an eligible employee. Under this leave profile, the 
typical employee will take a one week block of leave upon notification 
of the deployment of the servicemember, ten days of unforeseeable leave 
during deployment, one week of foreseeable leave to join the 
servicemember while on Rest and Recuperation, and one week of 
foreseeable leave post deployment to address qualifying exigencies. 73 
FR 68051. The proposed revisions to the rule increase foreseeable leave 
to join a servicemember while the servicemember is on Rest and 
Recuperation leave. Table 3-2 summarizes the revised leave pattern.

             Table 3-2--Profile of Qualifying Exigency Leave
------------------------------------------------------------------------
              Reason                     Description       Days    Hours
------------------------------------------------------------------------
Notice of Deployment..............  1 week unforeseeable       5      40
During Deployment.................  10 days                   10      80
                                     unforeseeable.
During Deployment, ``Rest and       10 days foreseeable.      10      80
 Recuperation''.
Post Deployment...................  1 week foreseeable..       5      40
                                                         ---------------
    Total.........................  ....................      30     240
------------------------------------------------------------------------


[[Page 8992]]

    For the purpose of this analysis, the Department is assuming that 
the average employee will take 10 days of leave to be with their 
servicemember during rest and recuperation leave. While the Department 
proposes increasing the number of days of qualifying exigency leave an 
employee may take for the servicemember's Rest and Recuperation leave 
to coincide with the number of days provided the servicemember, up to 
15 days, the Department does not have a basis at this time to estimate 
the percentage of servicemembers who would be granted 15 days of Rest 
and Recuperation or the probability that their family member(s) would 
join them for Rest and Recuperation leave. Therefore, the Department 
assumes for the purpose of this analysis that a covered and eligible 
employee will take 10 days of qualifying exigency leave for the 
servicemember's Rest and Recuperation leave. The Department invites 
comment on the amount of Rest and Recuperation leave provided to 
service personnel and the extent to which employees would take an equal 
number of days of FMLA-qualifying exigency leave to be with their 
servicemember-family member.
    Based on this profile, the Department estimates that 30,900 
eligible employees will take 927,000 days (7.4 million hours) of FMLA 
leave annually to address qualifying exigencies under the FY 2010 NDAA 
amendments. These estimates may vary from 772,000 days (6.2 million 
hours) if eligible employees average five days of leave to 1.1 million 
days (8.7 million hours) if they average 15 days of leave when a 
servicemember is on Rest and Recuperation leave.
    The Department acknowledges that estimated qualifying exigency 
leave also represents an average of periods with high levels of 
deployment and active conflict and periods with low or minimal 
deployments. Therefore, the Department supplements its analysis by 
considering a ``heavy conflict'' scenario and a ``low conflict'' 
scenario to capture the range of leave usage that may be expected in 
any given year in the future.
    Drawing on the data in Table 3-1, for the purposes of these cost 
estimates, the Department defines the low conflict scenario as a year 
containing no deployment exceeding 40,000 servicemembers, while the 
heavy conflict scenario is one in which deployments exceed 40,000 
servicemembers. Applying this standard to the data in Table 3-1, the 
average size of a deployment during the low conflict scenario is 15,400 
troops, compared to 320,400 during a period of heavy conflict.
    The Department applied the same probabilities of having eligible 
family members and patterns of leave usage as were used for the average 
analysis. Using this method, the Department estimates that 2,400 
employees will take 72,060 days (576,500 hours) of leave for qualifying 
exigencies under the low conflict scenario, while 50,244 employees will 
take 1.5 million days (12 million hours) of leave during periods of 
heavy conflict.
b. Military Caregiver Leave
    Military caregiver leave entitles an eligible employee who is the 
spouse, son, daughter, parent, or next of kin of a ``covered 
servicemember'' to take up to 26 workweeks of FMLA leave in a ``single 
12-month period'' to care for a covered servicemember with a serious 
injury or illness. Under the FY 2010 NDAA amendments, the definition of 
``covered servicemember'' is expanded to include a veteran ``who is 
undergoing medical treatment, recuperation, or therapy for a serious 
injury or illness'' if the veteran was a member of the Armed Forces 
``at any time during the period of 5 years preceding the date on which 
the veteran undergoes that medical treatment, recuperation, or 
therapy.'' The FY 2010 NDAA amendments define a serious injury or 
illness for a covered veteran as ``a qualifying (as defined by the 
Secretary of Labor) injury or illness that was incurred by the member 
in line of duty on active duty in the Armed Forces (or existed before 
the beginning of the member's active duty and was aggravated by service 
in line of duty on active duty in the Armed Forces) and that manifested 
itself before or after the member became a veteran.''
    The amendments also expand the definition of ``serious illness or 
injury'' to include an injury or illness of a current member of the 
military that ``existed before the beginning of the member's active 
duty and was aggravated by service in line of duty'' and that may cause 
the servicemember to be unable to perform the duties of his or her 
office, grade, rank, or rating. The Department does not attempt in this 
analysis to estimate the number of additional current servicemembers 
who may be covered under this expansion of the definition due to the 
lack of data to support reasonable assumptions on the potential size of 
this group. However, for the reasons discussed earlier in this 
preamble, the Department believes it is reasonable to conclude that the 
number of servicemembers entering the military with an injury or 
illness with the potential to be aggravated by service to the point of 
rendering the servicemember unable to perform the duties of his or her 
office, grade, rank, or rating is quite small due to the selection 
process used by the U.S. Armed Forces.
    To determine the number of eligible employees that may take FMLA 
leave as a result of the expansion of caregiver leave to family members 
of covered veterans, the Department first estimated the number of 
veterans likely to undergo medical treatment for a serious injury or 
illness, and the number of family members who are employed by a covered 
employer and who may be eligible to take FMLA leave to care for them. 
The Department reviewed several summaries of injuries and illnesses 
among military servicemembers to estimate the rate at which injuries 
that are sufficiently severe as to require medical care after 
separation from the military might occur.\26\ A number of data 
limitations make the estimation of serious injury and illness rates 
problematic:
---------------------------------------------------------------------------

    \26\ The most useful of these sources were:
    Dole, R. and D. Shalala. Serve, Support, and Simplify. Report of 
the President's Commission on Care for America's Returning Wounded 
Warriors. July, 2007.
    Fischer, H. United States Military Casualty Statistics: 
Operation Iraqi Freedom and Operation Enduring Freedom. CRS Report 
for Congress. Congressional Research Service, March 25, 2009.
    Tanielian, T. and L.H. Jaycox (eds.). Invisible Wounds: Mental 
Health and Cognitive Care Needs of America's Returning Veterans. 
Research Highlights. RAND Center for Military Health Policy 
Research. 2008.
    U.S. Department of Defense. DoD Military Injury Metrics Working 
Group White Paper. December 2002.
---------------------------------------------------------------------------

    [ssbox] The Department of Defense generally publishes data on the 
number of servicemembers killed or wounded in action, but little about 
non-combat injuries and illnesses.
    [ssbox] Except for the most severe injuries (e.g., amputations, 
severe burns, blindness), little is published about the nature or 
severity of illnesses and injuries.
    After completing its review, described below, the Department 
estimates that an average of about 46,900 servicemembers will incur 
injuries or illnesses that may require treatment after separation from 
the military, for which family members will be eligible for military 
caregiver leave.\27\ This number includes the 14,000 servicemembers 
whose family

[[Page 8993]]

members are expected to take military caregiver leave while the 
servicemember is still in the military. The Department reached this 
estimate based on the information and analysis presented in the 
following paragraphs.
---------------------------------------------------------------------------

    \27\ For the purposes of describing the calculations in this 
section, we assume each injury or illness occurs to one veteran 
(i.e., 46,900 veterans experience 46,900 injuries and illnesses). 
However, veterans might experience more than one injury or illness, 
and the family members of fewer than 46,900 veterans might take 
multiple leaves to care for the 46,900 injuries and illnesses. The 
total estimated leaves and costs will be identical in both cases.
---------------------------------------------------------------------------

    The Department first estimated the percent of servicemembers that 
might receive an injury or illness requiring care while in the service 
or after separation. In 2001, the Department of Veterans Affairs 
undertook a survey that showed 24 percent of veterans that served 
during the Gulf War era reported having a service-related disability 
rating.\28\ Service-related disability ratings do not require that the 
servicemember is disabled; the rating might be less than 30 percent (or 
even zero in the case of a service-related injury that healed prior to 
separation;) however, the mere fact that a servicemember has a rating 
indicates that a service-related injury occurred.\29\
---------------------------------------------------------------------------

    \28\ U.S. Department of Veterans Affairs. 2001 National Survey 
of Veterans. Accessed at http://www1.va.gov/VETDATA/docs/SurveysAndStudies/NSV_Final_Report.pdf.
    \29\ Veterans Administration Service Related Disability Rating 
(VASRD). Accessed at http://myarmybenefits.us.army.mil/Home/Benefit_Library/Federal_Benefits_Page/Veterans_Administration_Schedule_for_Rating_Disabilities_(VASRD).html?serv=150.
---------------------------------------------------------------------------

    The Department then examined deployment rates across different time 
periods. Table 3-1 indicates that servicemembers deployed during the 
Gulf War of 1991 account for about 28 percent of the total active 
military at that time. The same tables show that servicemembers 
deployed in Operations Enduring Freedom and Iraqi Freedom (Iraq (2)) 
comprise a smaller percentage of the active military (roughly 20 
percent). However, the Department believes this is an underestimate; 
because the second Iraq conflict lasted several years, it is likely 
that many in the active military not deployed at the time of the 
snapshot were deployed sometime during its duration; conversely, the 
first Iraq war was relatively brief, and personnel had a smaller 
likelihood of rotating into the war zone during its duration. 
Therefore, the Department believes that the percent of active military 
personnel that were deployed to Afghanistan or Iraq is higher than the 
calculations in Table 3-1 show, and that the true percent is similar to 
the first Iraq conflict: approximately 30 percent of active military 
personnel were deployed. The Department also concludes that the percent 
of veterans that received a service-connected disability rating from 
the first Gulf War era is a reasonable proxy for veterans of the period 
2003 through 2007, about 25 percent (rounded up from 24 percent). Thus, 
the Department expects that at least 25 percent of active military 
personnel in the post-9/11 era will separate from the military with a 
disability rating.
    Data provided by the Department of Veterans' Affairs indicates that 
among the population of current veterans with a disability rating, 39.3 
percent have a rating of 50 percent or greater (Table 3-3). Assuming 
the distribution of disability ratings among servicemembers who will 
separate from the military in years to come is the same as the 
distribution of disability ratings of current veterans, the Department 
estimates that 10 percent (rounding up, 25 percent x 40 percent = 10 
percent) of separating servicemembers will have a disability rating of 
50 percent or greater.

                      Table 3-3--2010 Distribution of Current Veterans by Disability Rating
----------------------------------------------------------------------------------------------------------------
                                                                                           Cumulative percent of
          Degree of disability (%)             Number of current      Percent of current   current veterans with
                                                veterans with DR       veterans with DR              DR
----------------------------------------------------------------------------------------------------------------
0..........................................                12,145                    0.4                    0.4
10.........................................               779,997                   24.7                   25.1
20.........................................               445,472                   14.1                   39.2
30.........................................               365,254                   11.6                   50.8
40.........................................               312,301                    9.9                   60.7
50.........................................               205,419                    6.5                   67.2
60.........................................               246,132                    7.8                   75.0
70.........................................               227,528                    7.2                   82.2
80.........................................               172,491                    5.5                   87.7
90.........................................                97,591                    3.1                   90.8
100........................................               290,396                    9.2                  100.0
----------------------------------------------------------------------------------------------------------------
Source: Department of Veterans Affairs.

    However, it is possible that a servicemember may not manifest the 
symptoms of a serious injury or illness at the time of his or her 
separation, and therefore, not go through the VA disability rating 
process prior to leaving the service. In 2008, the RAND organization 
published a report entitled Invisible Wounds: Mental Health and 
Cognitive Care Needs of America's Returning Veterans (Tanielian and 
Jaycox, 2008). The RAND report summarized the results from a survey of 
servicemembers, which found that among servicemembers who returned from 
Operation Enduring Freedom and Operation Iraqi Freedom:
    [ssbox] 11.2 percent met the criteria for post-traumatic stress 
disorder (PTSD) or depression,
    [ssbox] 12.2 percent had likely experienced a traumatic brain 
injury (TBI),
    [ssbox] 7.3 percent had experienced both a TBI and either PTSD or a 
TBI and depression, and
    [ssbox] Roughly 50 percent of these servicemembers sought treatment 
for their symptoms within one year of returning from overseas.

Furthermore, symptoms of such injuries may not appear until several 
years after the injury was experienced, have traditionally been badly 
underreported, and are not well understood. Due to the high visibility 
research performed in this area, and recent initiatives undertaken by 
the Department of Veterans Affairs,\30\ it is reasonable to assume a 
much higher percentage of these types of injuries will be diagnosed and 
reported than in previous cohorts of veterans.
---------------------------------------------------------------------------

    \30\ See, for example:
    DeKosky, S.T., M.D. Ikonomovic, and S. Gandy. 2010. Traumatic 
Brain Injury--Football, Warfare, and Long-Term Effects. The New 
England Journal of Medicine. 363:14. September 30.
    U.S. Department of Veterans Affairs. 38 CFR Part 3. Post 
Traumatic Stress Syndrome. Interim Final Rule. Federal Register, 
Vol. 73, No. 210, p. 64208.
---------------------------------------------------------------------------

    Consequently, the Department must also account for veterans who may

[[Page 8994]]

suffer a serious injury or illness that manifested after his or her 
separation from the military. Evidence shows that approximately 30 
percent of servicemembers that were deployed to Afghanistan and Iraq 
experienced a TBI, PTSD, or depression, and roughly 30 percent of 
active military personnel were deployed to Afghanistan or Iraq. 
Assuming that such injuries would result in the equivalent of a VASRD 
rating of at least 50 percent, and did not manifest until after 
separation from the military, it is reasonable to estimate that 10 
percent (0.3 x 0.3 = 0.09, then rounding up) of these veterans incurred 
such an injury or illness that manifested after separation from the 
military. The Department added this 10 percent of veterans who suffer a 
post-separation serious injury or illness to the 10 percent of military 
members who separate from the military with a VASRD rating. Therefore, 
the estimated percent of veterans likely to have a service-related 
injury or illness that might require treatment after separation is 20 
percent.
    In summary, for the purposes of this PRIA, the Department assumes 
that 20 percent of servicemembers may separate from the military with 
an injury or illness requiring treatment. This may be an overestimate. 
We assume that of the additional 10 percent of servicemembers that 
experience a serious injury or illness that might not manifest until 
well after the event occurs (e.g., PTSD, TBI, or depression), none go 
through the VA disability rating process. We also assume that all 
eventually seek treatment within five years. Both of these assumptions 
are very conservative.
    This estimate suffers from a number of qualifications and 
limitations:
    [ssquf] This injury rate was based on data for military personnel 
that had a high likelihood of experiencing active combat while in the 
military; to the extent that future cohorts experience less combat, the 
injury rate may well be significantly smaller.
    [ssquf] It is not clear that all injuries included in this figure 
will be severe enough to require treatment.
    [ssquf] Even if the injury is severe, it is unclear that the 
servicemember will seek treatment; it has long been known that the 
treatment rate for mental health conditions such as depression amongst 
the general population is less than 100 percent.
    [ssquf] This estimate does not account for other injuries that 
might require treatment; however, the Department could find little data 
on which to base an estimate of such injuries.
    [ssquf] This estimate abstracts from the requirement that treatment 
must occur within five years of separation for the injury to be 
eligible for FMLA caregiver leave. Thus, we implicitly assume 100 
percent will seek treatment within five years.
    The Department used projections of military personnel separations 
for fiscal years 2010 through 2036 from the Department of Veterans 
Affairs as the basis for the average number of personnel who might 
newly seek medical care in a given year, see Table 3-4.\31\ We did not 
model a medical care usage pattern for these servicemembers. Because we 
project this to be an average annual ``stream'' of cohorts of 
separating servicemembers, as long as we assume each year's cohort 
follows the same usage pattern, the primary factor governing the number 
of servicemembers requiring treatment is the total number in each 
cohort that will seek treatment within five years.\32\
---------------------------------------------------------------------------

    \31\ U.S. Department of Veterans Affairs. 2008. Demographics: 
Veteran Population Model 2007. Table 8S. January. Accessed at http://www1.va.gov/VETDATA/Demographics/Demographics.asp.
    \32\ For example, compared to a single cohort separating from 
the military over 5 years, modeling the separation of that same 
cohort over 10 years will result in fewer servicemembers from that 
cohort seeking treatment in any given year. However, modeling 
separation over 10 years will result in servicemembers from more 
cohorts seeking treatment in a given year. Thus, in a steady state, 
the one effect will cancel out the other. Different models of 
separation patterns will, however, result in different numbers of 
treatments prior to reaching the steady state, and the net present 
value of the stream of treatments.

                         Table 3-4--Military Separations 2010-2036 by Branch and Period
----------------------------------------------------------------------------------------------------------------
                                                                 Separations by Branch [a]
                                         -----------------------------------------------------------------------
               Fiscal year                                                         Reserve    Coast
                                            Army      Navy       Air     Marines   Forces     Guard      Grand
                                                                Force                [b]       [c]       total
----------------------------------------------------------------------------------------------------------------
FY2010..................................    77,761    46,927    37,053    28,892    48,342     4,391     243,367
FY2011..................................    78,401    46,803    36,979    28,784    28,148     4,523     223,638
FY2012..................................    78,843    46,643    36,876    28,655    18,075     4,649     213,742
FY2013..................................    79,584    46,741    36,976    28,685     8,019     4,798     204,803
FY2014..................................    79,956    46,956    37,160    28,799     8,054     4,820     205,745
FY2015..................................    79,479    46,672    36,948    28,607     8,004     4,790     204,500
FY2016..................................    79,203    46,506    36,830    28,488     7,974     4,773     203,773
FY2017..................................    79,607    46,740    37,028    28,614     8,012     4,796     204,798
FY2018..................................    80,052    46,998    37,245    28,755     8,055     4,822     205,927
FY2019..................................    80,196    47,079    37,322    28,788     8,067     4,830     206,281
FY2020..................................    80,187    47,071    37,327    28,767     8,064     4,829     206,246
FY2021..................................    80,338    47,156    37,407    28,803     8,077     4,837     206,618
FY2022..................................    81,015    47,550    37,731    29,028     8,143     4,877     208,346
FY2023..................................    80,995    47,535    37,730    29,004     8,140     4,875     208,279
FY2024..................................    80,409    47,188    37,466    28,777     8,079     4,839     206,758
FY2025..................................    79,502    46,653    37,052    28,437     7,986     4,784     204,414
FY2026..................................    79,632    46,726    37,121    28,467     7,997     4,791     204,734
FY2027..................................    79,953    46,912    37,278    28,566     8,027     4,810     205,547
FY2028..................................    79,878    46,865    37,251    28,524     8,018     4,805     205,341
FY2029..................................    79,477    46,627    37,072    28,366     7,976     4,780     204,299
FY2030..................................    79,930    46,890    37,291    28,513     8,020     4,807     205,451
FY2031..................................    80,148    47,015    37,401    28,576     8,040     4,819     206,000
FY2032..................................    79,965    46,906    37,323    28,497     8,020     4,808     205,518
FY2033..................................    79,857    46,839    37,279    28,444     8,008     4,800     205,228
FY2034..................................    79,925    46,877    37,318    28,455     8,013     4,804     205,392
FY2035..................................    79,867    46,840    37,298    28,421     8,006     4,800     205,233

[[Page 8995]]

 
FY2036..................................    79,857    46,832    37,301    28,404     8,003     4,799     205,196
                                         -----------------------------------------------------------------------
    Average.............................  ........  ........  ........  ........  ........  ........     207,969
----------------------------------------------------------------------------------------------------------------
[a] Includes only separations from the five armed services; excludes separations from the Public Health Service
  (PHS) and National Oceanic and Atmospheric Administration (NOAA).
[b] Reserve Forces include only those who have had active Federal military service (other than for training) as
  a result of their membership in the reserves or National Guard. Reserve forces with prior active military
  service in the regular military, are classified according to the branch (Army, Navy, Air Force, Marines) in
  which they served while in the regular military, notwithstanding their subsequent service in the Reserve
  Forces.
[c] Coast Guard separations estimated from VETDATA ``Non-Defense'' separations by determining the current
  proportion of non-defense personnel in the Coast Guard (84.8%) versus NOAA and PHS.
Source: http://www.va.gov/VETDATA/Demographics/Demographics.asp.

    The Department proposes to define a serious injury or illness of a 
veteran as an injury or illness incurred in the line of duty on active 
duty (or a pre-existing injury or illness exacerbated by service) that 
manifests itself before or after the member became a veteran and is 
either: a continuation of a serious injury or illness that was incurred 
or aggravated when the covered veteran was a member of the Armed Forces 
and rendered the servicemember unable to perform the duties of the 
servicemember's office, grade, rank, or rating; a physical or mental 
condition for which the covered veteran has received a U.S. Department 
of Veterans Affairs Service Related Disability Rating (VASRD) of 50 
percent or higher and such VASRD rating is based, in whole or in part, 
on the condition precipitating the need for military caregiver leave; 
or is a condition which significantly impairs the veteran's ability to 
secure or follow a substantially gainful occupation. Assuming an annual 
cohort of 203,000 personnel separate from the military each year, and 
that 20 percent of those personnel incurred an injury or illness in 
service that manifests before or after the servicemember became a 
veteran, the Department estimates that approximately 40,600 military 
personnel (20 percent of 203,000) per year might have family members 
who may take FMLA caregiver leave, if the regulatory requirements are 
met. This estimate may be over-inclusive due to data limitations on the 
severity of service-related injuries and illnesses.
    For the 2008 final rule, the Department estimated 1,500 to 14,000 
servicemembers will suffer serious injuries or illnesses that require 
treatment while in the military, and for which family members will take 
military caregiver leave. 73 FR 68043. Because military caregiver leave 
may be used for the same injury when the servicemember is in active 
duty and again when the servicemember becomes a veteran, the family 
members of these servicemembers in most instances will be eligible for 
additional caregiver leave after separation from the military by the 
servicemember. The economic impact attributable to the first instance 
of leave was accounted for in the 2008 revisions to FMLA, and this 
economic analysis will need to account for the possibility that these 
family members may take additional military caregiver leave when their 
servicemember becomes a veteran.
    To determine the number of servicemembers whose family members may 
take military caregiver leave when the servicemember is on active duty 
and again when the servicemember becomes a veteran the Department 
assumes that 100 percent of the servicemembers will receive treatment 
while in the military and that about 50 percent will seek treatment as 
a veteran (e.g., not all the injuries will be severe enough to require 
treatment beyond active service in the military). In other words, the 
number of injured servicemembers per year with family that may be 
eligible for caregiver leave is equal to 1.5 times 26,600 (40,600 less 
14,000 already accounted for under the 2008 revisions) new 
servicemembers per year. In addition, we assume that one-half of 14,000 
servicemembers that already received treatment while in the military, 
under the 2008 revisions, will receive treatment after separation. 
Therefore, under this revision to the FMLA, servicemembers and veterans 
may have approximately 46,900 injuries or illnesses per year that 
result in eligible family members taking military caregiver leave. 
Using the previously described calculations of the joint probabilities 
that a servicemember will have one or more family members eligible for 
FMLA (see Appendix A), the Department estimates that those 46,900 
veterans and servicemembers will have 59,700 eligible family members 
who may qualify for FMLA and act as caregivers (see Appendix A).\33\ 
The Department assumes that at least 26 percent of eligible employees, 
or an average of 15,500 per year, will take FMLA leave to care for a 
veteran undergoing medical treatment for a serious injury or illness. 
This assumption is based on a survey of injured servicemembers 
concerning the impact of their needs on their caregivers. The survey 
found that about 16 percent of working caregivers used ``unpaid leave 
from their job'' and 10 percent ``cut back their hours'' to care for 
the servicemember.\34\ However, the Department is aware that it is not 
drawing from a more comprehensive data source and acknowledges the 
limitations of its estimate. The Department seeks comments on whether 
there are more complete data sources, or if there are ways to develop a 
more accurate estimate in the absence of more reliable data, that it 
could utilize in conducting this part of the analysis.
---------------------------------------------------------------------------

    \33\ The Department made one modification to the joint 
probabilities used for caregiver leave. In addition to family 
members such as parents, spouses, and adult children, designated 
``next-of-kin'' are also eligible to take military caregiver leave 
under FMLA. The Department accounted for this difference by assuming 
all servicemembers have at least one potential caregiver eligible 
for FMLA leave.
    \34\ Christensen et al. Economic Impact on Caregivers of the 
Seriously Wounded, Ill, and Injured. CNA, April 2009. Available at 
URL: http://www.cna.org/documents/D0019966.A2.pdf.
---------------------------------------------------------------------------

    In the 2008 final rule, the Department developed a profile of the 
``typical'' usage of military caregiver leave over the course of a 12-
month period for an eligible employee. Under this profile of leave, the 
typical employee will take a block of four weeks of unforeseeable leave 
upon notification of the serious injury or illness, a second block of 
two weeks of unforeseeable leave following

[[Page 8996]]

transfer of the covered servicemember to a rehabilitation facility, two 
one-week blocks of unforeseeable leave for unanticipated complications, 
and 40 individual days of foreseeable leave to care for the covered 
servicemember. 73 FR 68051.
    This profile is based on a typical leave pattern of an eligible 
employee caring for an injured or ill servicemember on active duty; for 
the purpose of this analysis, the profile was adjusted to capture a 
likely leave pattern for employees taking leave to care for a covered 
veteran. In this case, the nature of the serious injury or illness is 
expected to be different from those encountered during active duty. We 
assume an injury to an active duty servicemember that results in FMLA 
caregiver leave is likely to be a sudden, severe injury, which 
necessitates a large block of leave for the employee to travel to be at 
the bedside of the injured servicemember. Conversely, ongoing treatment 
for an existing injury or diagnosis and then treatment of an emerging 
injury or illness (e.g., post-traumatic stress disorder, traumatic 
brain injury) might call for frequent but short periods of leave for 
the employee to take the servicemember to appointments and provide 
other ongoing support. Adjusting the leave profile to account for these 
differences generates a leave pattern such as that summarized in Table 
3-5.

        Table 3-5--Profile of Military Caregiver Leave--Veterans
------------------------------------------------------------------------
              Reason                     Description       Days    Hours
------------------------------------------------------------------------
Diagnosis, therapy, or              1 week unforeseeable       5      40
 recuperation.
Travel to appointments and other    50 days foreseeable.      50     400
 errands.
                                                         ---------------
    Total.........................  ....................      55     440
------------------------------------------------------------------------

    Based on this profile, the Department estimates that 15,500 
eligible employees will take 854,000 days (6.8 million hours) of FMLA 
leave annually to act as a caregiver for a veteran who is undergoing 
treatment for a serious illness or injury.
2. Air Transportation Industry FMLA Leave
    The proposed changes to the FMLA eligibility requirements for 
airline flight crew employees do not alter the number of covered 
employers in the airline industry but increase the number of pilots, 
co-pilots, flight attendants and flight engineers who are eligible to 
take FMLA leave, and as a result, will likely increase the total number 
of FMLA leaves taken by these employees in the airline industry.\35\ 
The amendment changes flight crew eligibility such that an airline 
flight crew employee meets the hours of service requirement if, during 
the previous 12-month period, he or she has worked or been paid for not 
less than 60 percent of the applicable total monthly guarantee (or its 
equivalent), and not less than 504 hours, not including personal 
commute time, or time spent on vacation, medical, or sick leave.
---------------------------------------------------------------------------

    \35\ The FAA defines a flightcrew member as ``A pilot, flight 
engineer, or flight navigator assigned to duty in an aircraft during 
flight time.'' See URL: http://www.faa-aircraft-certification.com/faa-definitions.html.
---------------------------------------------------------------------------

    The Department estimated the profile of covered employers in the 
``Air Transportation'' industry, the number of flight crew employees 
who would be eligible for FMLA leave, and the number of leaves they may 
take. The profile of covered employers, see Table 3-6 below, was 
developed by estimating the proportion of NAICS code 48 classified as 
``Air Transportation'' (NAICS 481) in each size class from the 2006 
Statistics of U.S. Businesses at the 6-digit NAICS level. This 
proportion was multiplied by the total number of establishments, firms, 
employment and payroll in NAICS 48 according to the 2008 BLS special 
tabulations. Next, employers with fewer than 50 employees were dropped 
from the profile; as described below, the Department did not attempt to 
make an adjustment for establishments with fewer than 50 employees that 
are owned by firms with more than 50 employees in a 75 mile area for 
this sub-industry.

                                                 Table 3-6--2008 Covered Employers in Air Transportation
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                 Estimated    Estimated
                      Size class  (employees)                          Number of     Employment     Firms      Annual payroll     revenues    net income
                                                                    establishments                                 ($1000)        ($1000)      ($1000)
--------------------------------------------------------------------------------------------------------------------------------------------------------
50 to 99..........................................................            184         5,098          118          $265,903     $741,840       $4,194
100 to 499........................................................            544        16,577          113           919,239    2,369,610       23,342
500+..............................................................          2,204       439,315          135        24,905,181   70,921,603    2,295,261
                                                                   -------------------------------------------------------------------------------------
    Total.........................................................          2,932       460,990          366        26,090,323   74,033,052    2,322,797
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: BLS Special Tabulations, 2008; and Statistics of U.S. Businesses, 2006.

    Based on conversations with experts in the airline industry, the 
Department assumes that all potentially eligible airline flight crew 
employees are employed at a covered worksite. In general, flight crew 
members are scheduled for flights from a home base, or ``domicile.'' A 
domicile would not only include the airline flight crew employees, but 
the non-flight crew employees as well; therefore, the interviewees 
observed that for most carriers it was very unlikely that airline 
flight crew employees would be employed at a domicile with fewer than 
50 total employees.\36\ Next, the Department determined the total 
number of flight crew members employed in air transportation from the 
BLS Occupational Employment Statistics for 2008; in 2008 there were

[[Page 8997]]

about 162,200 airline flight crew employees. This includes pilots, co-
pilots, flight engineers, and flight attendants.
---------------------------------------------------------------------------

    \36\ Rob DeLucia. 2010. Interview with Rob DeLucia of AIR 
Conference, Calvin Franz and Lauren Jankovic, both of ERG. Janet 
Zweber. 2010. Interview with Janet Zweber of U.S. Airways Pilots 
Association, Calvin Franz and Lauren Jankovic, both of ERG.
---------------------------------------------------------------------------

    The next step was to determine the proportion of those flight crew 
members who will be eligible for FMLA leave. Crew members who are paid 
for 50 to 60 hours per month will, over the course of a 12-month 
period, be paid for 600 to 720 hours and they will easily meet the 
hours of service required for eligibility under the AFCTCA. According 
to sample data provided by the industry, about 80 percent of American 
Airlines flight attendants are paid for 50 or more hours per month, and 
this is considered reasonably representative of industry patterns.\37\ 
While a similar distribution of paid hours for pilots is not available, 
the FAA indicates that most pilots are paid for an average of 75 hours 
per month; based on this observation, the Department assumes that a 
similar proportion of pilots, 80 percent, would reach the proposed 
hours of service required for eligibility. Based on these estimates, 
about 129,760 airline flight crew employees may be eligible to take 
FMLA leave.
---------------------------------------------------------------------------

    \37\ Table ``AA Flight Attendant Block Hours and Paid Hours'' 
provided by Interviewee. Rob DeLucia. 2010. Interview with Rob 
DeLucia of AIR Conference, Calvin Franz and Lauren Jankovic, both of 
ERG. Table available at URL: http://www.aanegotiations.com/documents/AAFACharts_7.8.10.pdf; Last accessed on March 21, 2011.
---------------------------------------------------------------------------

    Many airlines have already incorporated FMLA-type provisions in 
collective bargaining agreements with pilots and flight attendants. In 
terms of the costs associated with the number of leaves resulting from 
the proposed changes, it is important to consider the proportion of 
airline flight crew employees already taking FMLA-type leave under 
collective bargaining agreements. Based on a review of the current 
FMLA-type leave policies in the labor contracts for 19 air carriers, 
the Department finds that about 20 percent of pilots, and 35 to 40 
percent of flight attendants are covered and eligible for FMLA-type 
leave policies.\38\ Assuming that 80 percent of pilots and 63 percent 
of flight attendants are not currently covered by FMLA-type policies, 
the Department estimates, as outlined in Table 3-7, that, of the 
129,760 flight crew members that will be eligible, 90,560 are not 
already covered by an FMLA-type leave policy under a collective 
bargaining agreement.
---------------------------------------------------------------------------

    \38\ Based on a review of excerpts from the collective 
bargaining agreements of 19 airlines transmitted to the Department 
by Steve Schembs, Association of Flight Attendants--CWA, on January 
19, 2010.
---------------------------------------------------------------------------

    Because there is little information available on the FMLA-type 
leave usage patterns of flight crew employees, the Department assumes 
that flight attendants will use FMLA leave at a similar rate to the 
rest of the population. Based on interviews with experts in the airline 
industry, pilots (also co-pilots and flight engineers) tend to use less 
FMLA-type leave due to different demographic needs and the availability 
of other types of paid leave.\39\ The 2008 PRIA extrapolated leave 
usage rates from surveys of FMLA leave usage to estimate expected leave 
use among the general population for 2007; the Department further 
extrapolated this number to estimate an expected leave usage rate of 
7.9 percent of eligible employees and applied this rate to the number 
of eligible flight attendants not covered by a collective bargaining 
agreement.\40\ Given that pilots use less FMLA-type leave, the 
Department assumed a rate of about 5 percent for eligible pilots and 
applied that to the estimated number of eligible pilots not covered by 
a collective bargaining agreement. Based on these estimates and 
assumptions, just under 6,000 flight attendants, pilots, co-pilots, and 
flight engineers will take new FMLA leaves under the proposed changes. 
Assuming that flight crew members will take approximately the same 
number of leaves per 12-month period as the general population, the 
Department estimates that each individual will take 1.5 leaves, for a 
total of 8,930 leaves.\41\ Table 3-7 summarizes the estimates developed 
in this section.
---------------------------------------------------------------------------

    \39\ Rob DeLucia. 2010. Interview with Rob DeLucia of AIR 
Conference, Calvin Franz and Lauren Jankovic, both of ERG. Janet 
Zweber. 2010. Interview with Janet Zweber of U.S. Airways Pilots 
Association, Calvin Franz and Lauren Jankovic, both of ERG.
    \40\ The extrapolation is used because the survey was performed 
relatively soon after FMLA was enacted; over time, as employee 
knowledge of FMLA provisions has grown, presumably so has FMLA 
usage.
    \41\ CONSAD Research Corporation, December 7, 2007.

                                 Table 3-7--Estimated FMLA Usage by Flight Crews
----------------------------------------------------------------------------------------------------------------
                                                                 Eligible crew      Eligible crew,
                                      Number of    Number of     not covered by     not covered by    Number of
            Flight crew                crew [a]     eligible     CBA FMLA- type     CBA that will      new FMLA
                                                    crew [b]       policy [c]       take leave [d]    leaves [e]
----------------------------------------------------------------------------------------------------------------
Pilots.............................       64,800       51,840             41,470              2,070        3,110
Flight Attendants..................       97,400       77,920             49,090              3,880        5,820
                                    ----------------------------------------------------------------------------
    Total..........................      162,200      129,760             90,560              5,950        8,930
----------------------------------------------------------------------------------------------------------------
Sources: BLS Occupational Employment Statistics, May 2008, Scheduled Air Transportation; CONSAD Research
  Corporation, December 7, 2007.
[a] Number of pilots includes: pilots, copilots and flight engineers (532011); and commercial pilots (532012).
[b] Eligibility based on estimated proportion of crew members (80%) meeting proposed hours of service
  requirement.
[c] Based on a sample of CBA for Flight attendants about 35% to 40% are currently covered by an FMLA-type
  provision such that most are eligible to take leave (we assumed a point estimate of 37% for the calculation);
  for Pilots about 20% are currently covered by an FMLA-type provision such that they are eligible to take
  leave.
[d] Flight attendants take leave at same rate as other industries (7.9%); Pilots and other crew use slightly
  less FMLA leave (5%).
[e] Individuals taking FMLA leave average 1.5 leaves per year.

    In developing a proposed method to calculate FMLA-leave usage for 
airline flight crew employees on reserve status, the Department 
considered a methodology based solely on the FLSA principles of hours 
worked, as is typically used for employees other than airline flight 
crew employees. However, since the airline industry is already tracking 
and recording airline flight crew employees' hours pursuant to FAA 
regulations, such as the flight, duty, and rest rules, the Department 
rejected this option. See 14 CFR pt. 91. The Department believes that 
imposing an FLSA ``hours worked'' methodology on the airline industry 
would require employers to create another

[[Page 8998]]

recordkeeping system, which would be unduly burdensome and costly for 
employers. As such, the Department did not quantify the cost of this 
alternative.

D. Costs

    This section describes the costs associated with the proposed 
changes to FMLA, including: regulatory familiarization, employer and 
employee notices, certifications, and other costs.
1. Regulatory Familiarization
    In response to the proposed changes to the FMLA, each employer will 
need to review the changes and determine what revisions are necessary 
to their policies, obtain copies of the revised FMLA poster and 
templates for required notices and certifications, and update their 
handbooks or other leave-related materials to incorporate the changes 
(see ``General Notice'' below). This is a one-time cost to each 
employer, calculated as two hours at the loaded hourly wage of a Human 
Resources (HR) staff member in the airline industry and one hour in all 
other industries to complete the tasks described above. Industries 
other than the airline industry will need less time for this task 
because there is no need for them to review the components of the rule 
pertaining to flight crews and they are already familiar with the 
requirements of FMLA. The Department seeks comment on whether two hours 
for the airline industry and one hour for all other industries are 
reasonable estimates for employers to review this rule and determine 
what revisions may need to be made to their employment guides and 
practices, such as updating company policies and/or timekeeping 
systems.
2. Employer Notices
    Under the FMLA, as described in Sec.  825.300, employers are 
required to provide certain types of notices to employees regarding 
FMLA eligibility, employee rights and responsibilities, and employee 
usage of leave. The estimated time to complete each notice is based on 
the PRA contained in the final rule. 73 FR 68040.
    General Notice. Every covered employer must provide general notice 
of FMLA coverage to all employees; this notice may be provided in 
employee handbooks or other benefits and leave materials or as a one-
time notice to new employees. For the purpose of this analysis, the 
cost associated with the proposed changes will be a one-time cost to 
each employer to update the notice provided and is included under 
regulatory familiarization costs above.
    Eligibility Notice and Rights and Responsibilities Notice. An 
employer is required to notify an employee of their eligibility to take 
FMLA leave when an employee requests FMLA leave or the employer becomes 
aware that an employee's leave may be for an FMLA-qualifying reason. 
The notice must state whether or not the employee is eligible and, if 
not, the reason the employee is not eligible. Along with the 
eligibility notice, the employer must include a discussion of employee 
rights and obligations, amount of leave designated as FMLA, the 
applicable 12-month period for leave, certification requirements, and 
other key details. The cost of these combined notices is calculated as 
10 minutes at the loaded hourly wage of an HR staff member to process 
each notice.
    Designation Notice. The employer is required to determine if leave 
taken by the employee for an FMLA-qualifying reason will be designated 
and counted as FMLA leave and provide written notice to the employee of 
this determination. Notice must be provided even if the employer 
determines that the leave will not be designated as FMLA, and only one 
notice is required per FMLA reason per 12-month period. The cost of 
this type of notice is calculated as 10 minutes at the loaded hourly 
wage of an HR staff member to process each notice.
Certifications
    Under the FMLA, as described in Sec.  825.305, employers are 
allowed to request certification to support an employee's need for FMLA 
leave due to their own or a family member's serious health condition, 
the serious injury or illness of a covered servicemember, a qualifying 
exigency, or to verify an employee's fitness for duty after an absence 
due to their own health condition.\42\ The costs associated with these 
certifications include: Employer cost to request, review, and verify 
the certification and employee cost to obtain the certification from 
the designated authority.
---------------------------------------------------------------------------

    \42\ An unknown percent of employers require employees to 
periodically recertify their need for FML. We have no data on the 
percent of employers that require certification, and believe the 
percent of employers that require recertification is a small percent 
of those that require certification. Therefore we have not attempted 
to estimate the number of employers that require recertification or 
the costs associated with it; we expect that these costs are small.
---------------------------------------------------------------------------

    Medical Certification. This type of certification may be requested 
of employees who take FMLA leave for their own serious health condition 
or that of a family member and is obtained from the health care 
provider. This is a recurring cost to both the employee and the 
employer for each FMLA leave event that is required to have medical 
certification. The cost to the employee is calculated as the cost of 
the visit to the health care provider completing the certification, 
assumed to be approximately $50 per visit.\43\ The cost to the employer 
is 30 minutes at the loaded hourly wage of an HR staff person to review 
and verify each certification. The proposed changes will only impact 
the usage of FMLA leave for the employee's own or the employee's family 
member's serious health condition for flight crew members; for the 
purposes of this analysis, the additional costs of the proposed changes 
will only accrue to flight crew members and airline industry employers. 
(The cost for medical certification for military caregiver leave is 
discussed below.)
---------------------------------------------------------------------------

    \43\ CONSAD, December 2007.
---------------------------------------------------------------------------

    Qualifying Exigency. Employees taking FMLA leave for a qualifying 
exigency may be asked to provide a copy of the relevant military orders 
or other documentation, and a copy of Form WH-384 ``Certification of 
Qualifying Exigency'' to their employers to substantiate their need for 
leave. This is a recurring cost to the employer for each FMLA 
qualifying exigency leave for which the employer requires the employee 
to provide certification. The cost is calculated as 20 minutes at the 
loaded hourly wage of an HR staff person to review and verify each 
certification.
    Military Caregiver. Employees taking FMLA military caregiver to 
care for a covered servicemember with a qualifying illness or injury 
may be asked to provide medical certification of the condition from an 
authorized health care provider. This is a recurring cost to both the 
employee and the employer for each FMLA military caregiver leave event 
that is required to have medical certification. The cost to the 
employee is calculated as the cost of the visit to the health care 
provider completing the certification, assumed to be approximately $50 
per visit.\44\ The cost to the employer is 30 minutes at the loaded 
hourly wage of an HR staff person to review and verify each 
certification. For the purposes of this analysis, these costs accrue to 
employees taking FMLA military caregiver to care for a covered veteran 
with a qualifying illness or injury and their employers.
---------------------------------------------------------------------------

    \44\ CONSAD, December 2007.
---------------------------------------------------------------------------

    Fitness for Duty. For certain occupations, employers may desire 
certification from a medical professional that an employee is well 
enough to

[[Page 8999]]

fulfill their duties following an FMLA leave for the employee's own 
serious health condition. Under prescribed circumstances, an employer 
may request a fitness-for-duty certification. The cost to the employee 
is calculated as the cost of the visit to the health care provider 
completing the certification, assumed to be approximately $50 per 
visit.\45\ The cost to the employer is 30 minutes at the loaded hourly 
wage of an HR staff person to review and verify each certification. For 
the purposes of this analysis, the additional costs of the proposed 
changes will only accrue to flight crew members and airline industry 
employers.
---------------------------------------------------------------------------

    \45\ CONSAD, December 2007.
---------------------------------------------------------------------------

3. Other Employer Costs
    The FMLA includes employer recordkeeping requirements but those 
costs are not addressed here because the proposed changes do not affect 
the type of records the employer is required to keep nor the amount of 
time they must keep them. Employers must continue to keep and maintain 
records under the proposed changes as they are required to do so under 
the current regulations. Additionally, while the proposed rule does 
newly cover airline flight crew employees, the Department expects that 
employers in the airline industry have already been tracking non-flight 
crew employees' hours to comply with the FMLA. Covered airlines must 
currently comply with FMLA with respect to employees, such as ticketing 
agents, baggage handlers, and administrative personnel. As such, the 
Department does not expect the proposed rule to create any additional 
recordkeeping burdens on airline employers.
    a. Employee Health Benefits. Employers are required by FMLA to 
maintain employee benefits during their absence on FMLA leave. This is 
a recurring cost to each employer that is calculated as the cost per 
hour to cover employee health benefits multiplied by the total number 
of hours of FMLA leave taken. This cost results from additional reasons 
an employee may take FMLA leave (qualifying exigency, military 
caregiver), and additional employees entitled to leave (airline flight 
crew employees). The Department estimated this cost as part of the 2008 
final rule and is using the same methodology here, noting that ``the 
marginal costs related to workers taking * * * military family leave * 
* * result from the cost of providing health insurance during the 
period the worker is on leave * * *. The Department believes these * * 
* costs are reasonable proxies for the opportunity cost of the NDAA 
provisions, since health insurance coverage represents the marginal 
compensation an employer is still required to cover under the FMLA when 
a worker is absent.'' 73 FR 68051. According to the BLS ``Employer 
Costs for Employee Compensation Survey'' of June 2008, employers spend 
an average of $2.25 per employee per hour worked on health insurance 
coverage.\46\
---------------------------------------------------------------------------

    \46\ BLS Employment Cost Trends, URL: http://www.bls.gov/ncs/ect/. Accessed on 09-29-2010.
---------------------------------------------------------------------------

    b. Replacement Workers. 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 skill sets, 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.
    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. As in previous 
rulemakings, the Department is requesting information from businesses 
on the impact of different strategies for compensating for workers on 
leave, particularly the extent to which work is redistributed among 
other workers, and the costs of recruiting and training temporary 
workers.
    For the purpose of this analysis, we will continue to assume that 
these costs are fairly small; furthermore, most employers subject to 
this rule change have been implementing FMLA for some time and have 
already developed internal systems for work redistribution and 
recruitment and training of temporary workers. The air transportation 
industry, however, is an exception to this reasoning and employers in 
this industry may face additional challenges with respect to 
scheduling.
    Due to the nature of the industry, airlines have varied and complex 
approaches to scheduling airline flight crew employees for flights.\47\ 
Based on seniority, these employees may bid on their desired domicile 
(i.e., primary airport), equipment (i.e., type of airplane), and flying 
schedule (e.g., international, shuttle). Generally, the employees can 
bid a ``line of flying'' or a ``block'' of flights or may bid on a 
number of days on reserve. According to our interviewees, approximately 
15-20 percent of employees may be on reserve at any point in time and 
this amount fluctuates by airline and demand.\48\ There are different 
types of reserve that are loosely based on the proximity of the 
employee to the airport; an employee on ``short call'' may be required 
to arrive at the domicile within 90 minutes, while an employee on 
``long call'' may be given 9 hours notice to arrive at the domicile for 
a flight.
---------------------------------------------------------------------------

    \47\ This discussion is highly generalized and may not represent 
the practices of a specific airline. The purpose of the discussion 
is to provide context for understanding the impact of FMLA leave on 
overall scheduling practices.
    \48\ Rob DeLucia. 2010. Interview with Rob DeLucia of AIR 
Conference, Calvin Franz and Lauren Jankovic, both of ERG.
---------------------------------------------------------------------------

    Overall, the scheduling is fairly flexible in order to manage 
schedule changes; for example, ``block holders'' can be rescheduled to 
cover additional flights, flight attendants can engage in ``trip 
trading'' or volunteer for open flying time, and airlines can use 
``dead heading'' to fly in a crew from another airport.
    There are several key limitations to the flexibility of the system; 
the primary one being regulatory limits on flying time and equipment. 
This limitation is the most stringent for pilots who have more 
restrictive limitations on flying time than other flight crew members 
and who may only fly specific types of aircraft. Additionally, schedule 
changes due to events such as severe weather can impact scheduling; 
reserve flight crew members are utilized to make up for cancelled and 
rescheduled flights.
    At this point, it is not clear if the AFCTCA will impose a 
significant cost on air transportation employers, nor the potential 
magnitude of the cost. The Department believes that the rule will 
increase the number of flight crew leaves classified as FMLA, but may 
not necessarily increase the absolute number of leaves taken by these 
workers.
4. Regulatory Impacts
    This section draws on the estimates of potentially affected 
employees, and the unit costs discussed above to determine the 
anticipated impact of the proposed regulations in terms of total cost 
across all industries as well as estimated cost per firm and per 
employee.
a. Projected Regulatory Cost
    The total estimated impact of the proposed changes is $72.4 million 
in the first year with $59.8 million in recurring costs in subsequent 
years. Table 5-1 summarizes the total estimated costs of the proposed 
changes to FMLA by cost

[[Page 9000]]

type (first year, recurring), amendment (flight crew, military 
caregiver), and regulatory requirement (familiarization, notices, 
certifications, benefits).

        Table 5-1--Summary of Impact of Proposed Changes to FMLA
------------------------------------------------------------------------
              Component                Year 1  ($1000)   Year 2  ($1000)
------------------------------------------------------------------------
Total...............................           $72,398           $59,791
By Amendment . . .
    Any FMLA revision...............            12,607                 0
    Flight Crew Technical Amendment.               372               372
    NDAA 2010.......................            59,419            59,419
        Qualifying Exigency.........            25,832            25,832
        Military Caregiver..........            33,587            33,587
By Requirement . . .
    Regulatory Familiarization......            12,607                 0
    Employer Notices................            26,851            26,851
    Certifications..................               722               722
    Health Benefits.................            32,218            32,218
------------------------------------------------------------------------
[a] Columns may not sum due to rounding.

    All covered employers will incur costs of $12.6 million during the 
first year for regulatory familiarization associated with any new FMLA 
revision. Other than the initial regulatory familiarization costs that 
occur in the first year, all other costs are annual costs; they occur 
in the first year, and in each subsequent year. Covered employers in 
the air transportation industry who are not already providing family 
and medical leave to flight crew employees will incur costs of about 
$372 thousand per year to implement the changes. Covered employers of 
workers eligible for military family leave will incur costs of about 
$59.4 million per year as a result of the proposed changes. Looking at 
the key requirements of FMLA, most of the costs of the proposed changes 
will stem from generation of employer notices and maintenance of health 
benefits in recurring years.
    To facilitate the public's understanding of the impact of this 
proposed rule, the Department provides some alternative assumptions on 
the utilization of leave and corresponding costs. However, due to the 
lack of reliable data on which to base alternative assumptions, we do 
not include these ranges in the summary analysis.
    The Department estimates the cost of the NDAA as $59.4 million, 
with qualifying exigency leave costing $25.8 million and military 
caregiver leave costing $33.6 million. However, under different 
scenarios, the cost of the NDAA may increase or decrease. The cost of 
qualifying exigency leave will vary between $2.6 million and $54.6 
million in times of low conflict and high conflict.\49\ As a result, 
the cost of the NDAA will vary from $36.2 million in low conflict times 
and $88.2 million in high conflict times. The cost of qualifying 
exigency leave may also change if leave taken for Rest and Recuperation 
is closer to 5 days or 15 days. Under this scenario, the cost of 
qualifying exigency leave might range from $23.1 million to $28.6 
million, and, thus, the total cost of the NDAA will range from $56.6 
million to $62.1 million.
---------------------------------------------------------------------------

    \49\ In addition, no deployments take place in 16 of the 48 
years of data examined (33.3 percent), and costs associated with 
qualifying exigency leave for deployment would be zero in those 
years. Low levels of conflict occurred in 18 of 48 years (37.5 
percent) and high levels of conflict took place in 14 of 48 years 
(29.2 percent).
---------------------------------------------------------------------------

    Similarly, if the definition of serious injury or illness was set 
only to include disability ratings of 60% or greater (i.e., was more 
stringent), or alternatively to include more ratings of 30% or greater 
(i.e., was more inclusive), then the cost of military caregiver leave 
would range from $29.8 million to $44.9 million. As a result, the total 
cost of the NDAA would vary between $55.7 million and $70.7 million.
    Table 5-2 provides the total, net present value and average 
annualized projected compliance costs over 10 years. Average annualized 
costs take the entire stream of costs over 10 years, including both 
first-year costs that are only incurred once, and recurring costs that 
are incurred every year, and converts them into a stream of equal 
annual payments with a net present value equal to the original stream 
of time-varying costs at the specified real discount rate. Calculating 
annualized costs allows the examination of an appropriate measure of 
average costs (by accounting for the time-value of money) over time 
without overestimating impacts by focusing on initial costs, or 
underestimating impacts by focusing solely on recurring costs. The OMB 
directs that the streams of costs and benefits should be discounted 
using a 7 percent real discount rate; we also include the three percent 
real discount rate for reference.

                        Table 5-2--Average Annualized Costs by Amendment and Requirement
----------------------------------------------------------------------------------------------------------------
                                                                                     Annualized ($1000) [a]
                                                                               ---------------------------------
                            Component                                 Total      Real discount    Real discount
                                                                     ($1000)        rate 3%          rate 7%
                                                                                    ($1000)          ($1000)
----------------------------------------------------------------------------------------------------------------
Total............................................................     $610,517          $61,226          $61,469

[[Page 9001]]

 
By Amendment . . .
    Any FMLA revision............................................       12,607            1,435            1,678
    Flight Crew Technical Amendment..............................        3,720              372              372
    NDAA 2010....................................................      594,190           59,419           59,419
        Qualifying Exigency......................................      258,323           25,832           25,832
        Military Caregiver.......................................      335,868           33,587           33,587
By Requirement . . .
    Regulatory Familiarization...................................       12,607            1,435            1,678
    Employer Notices.............................................      268,509           26,851           26,851
    Certifications...............................................        7,221              722              722
    Health Benefits..............................................      322,181           32,218           32,218
----------------------------------------------------------------------------------------------------------------
[a] Columns may not sum due to rounding.

    The results presented in the table show that the proposed changes 
are projected to cost an average of $61.4 million per year over 10 
years using a 7 percent real discount rate.
    With respect to the proposed amendments to the rule, the military 
family leave provisions (FY 2010 NDAA) account for about 96.7 percent 
of the total annualized cost. In terms of requirements of the rule, 
employer notices and maintenance of health benefits each account for 
about 44 and 52 percent of the total cost, respectively.
b. Impacts of Projected Cost
    In this section we review the impact of projected regulatory costs 
on business income. To avoid misrepresenting impacts, they are 
presented in four different ways: First year costs are the largest, 
thus the ratio of first-year costs to income (business and worker) 
represent the most severe impacts that might be incurred in any one 
year; the ratio of recurring costs to income are more typical impacts--
those that can be expected in any year except the first year; finally, 
average annualized costs, as described above reflect the overall 
average over 10 years.
    Table 5-3 presents the impact of the projected costs on firm income 
and payroll with respect to first year and recurring costs; the impacts 
are disaggregated by proposed amendment and regulatory requirement. The 
projected first year costs of the proposed rule are about $190 per 
firm, which is less than one-hundredth of a percent of average annual 
revenues and payroll. For most firms, the military family leave 
provisions account for the largest part of this impact, at $156 per 
firm. With the exception of regulatory familiarization, first year 
costs for employer notices, certifications, and the maintenance of 
health benefits are identical to the amounts incurred in each 
subsequent year. The cost of the flight crew technical amendments may 
be a small portion of overall first year costs, but the impact will be 
concentrated on the air transportation industry. As a result, the cost 
per firm is $1,016, which is less than one-hundredth of a percent of 
average annual revenues and payroll.
    The impact of the recurring costs will be about $157 per firm; the 
military family leave provisions continue to be the driver of the size 
of the impact due to the cost of employer notices and maintenance of 
employee health benefits associated with the requirement.

                              Table 5-3--Impact of Compliance Costs on Firm Income
----------------------------------------------------------------------------------------------------------------
                                                         Costs                         Projected impacts
                                         -----------------------------------------------------------------------
                Component                                                      Cost per  firm    Cost per  firm
                                             Total cost      Cost per  firm     as percent of    as a percent of
                                                                   [a]            revenues       annual payroll
----------------------------------------------------------------------------------------------------------------
First Year Cost.........................           $72,398              $190            0.0003            0.0015
By Amendment . . .
    Any FMLA revision...................            12,607                33            0.0001            0.0003
    Flight Crew Technical Amendment.....               372             1,016            0.0004            0.0014
    NDAA 2010...........................            59,419               156            0.0003            0.0012
By Requirement . . .
    Regulatory Familiarization..........            12,607                33            0.0001            0.0003
    Employer Notices....................            26,851                71            0.0001            0.0005
    Certifications......................               722                 2            0.0000            0.0000
    Health Benefits.....................            32,218                85            0.0001            0.0006
Recurring Cost..........................            59,791               157            0.0003            0.0012
By Amendment . . .
    Any FMLA revision...................                 0                 0            0.0000            0.0000
    Flight Crew Technical Amendment.....               372             1,016            0.0004            0.0014
    NDAA 2010...........................            59,419               156            0.0003            0.0012
By Requirement . . .
    Regulatory Familiarization..........                 0                 0            0.0000            0.0000
    Employer Notices....................            26,851                71            0.0001            0.0005
    Certifications......................               722                 2            0.0000            0.0000
    Health Benefits.....................            32,218                85            0.0001            0.0006

[[Page 9002]]

 
7% Real Discount Rate...................            61,469               161            0.0003            0.0013
By Amendment . . .
    Any FMLA revision...................             1,677                 4            0.0000            0.0000
    Flight Crew Technical Amendment.....               372             1,016            0.0004            0.0014
    NDAA 2010...........................            59,419               156            0.0003            0.0012
By Requirement . . .
    Regulatory Familiarization..........             1,677                 4            0.0000            0.0000
    Employer Notices....................            26,851                71            0.0001            0.0005
    Certifications......................               722                 2            0.0000            0.0000
    Health Benefits.....................            32,218                85            0.0001            0.0007
----------------------------------------------------------------------------------------------------------------
[a] Calculated as total cost divided by the number of affected firms. For example, first year NDAA cost per firm
  is $59 million divided by 381 thousand firms and first year cost per firm for the flight crew technical
  amendment is $372 thousand divided by 366 firms.

    Table 5-3 also presents the impact of projected costs on firm and 
worker income for average annualized costs with a 7 percent real 
discount rate. The results demonstrate that the overall average 
annualized cost of the rule is $61.5 million, or about $161 per firm 
($1,016 per firm in the air transportation industry).
    Finally, the impacts presented in Tables 5-3 also show the costs 
per firm as a percent of firm resources. The Department estimated 
impacts as the national costs of the rule divided by the number of 
affected firms (including government entities). The total cost per firm 
of $161 based on the total annualized cost at a 7 percent discount rate 
composes approximately 3 ten-thousandths of 1 percent of average annual 
firm revenue. However, it is likely that some of these costs will be 
borne by the firm and some by the workers; the exact incidence of these 
impacts will depend on the relative bargaining strength of firms and 
workers which will vary by industry.

C. Benefits

    The Department anticipates significant benefits resulting from the 
proposed revisions. Employers that have adopted flexible workplace 
practices cite many economic benefits such as reduced worker 
absenteeism and turnover, improvements in their ability to attract and 
retain workers, and other positive changes that translate into 
increased worker productivity. ``Work-Life Balance and the Economics of 
Workplace Flexibility'' at 16, Executive Office of the President, 
Council of Economic Advisors (March 2010). However, quantifying the 
benefits is challenging. Id. The Department does not attempt to 
quantify these benefits in this analysis, but does, however, describe 
the expected benefits of each major revision in the proceeding section.
1. Military Family Leave
    The benefits stemming from improving access to military leave for 
military family members were described in the 2008 final rule as 
follows:

    [T]he families of servicemembers will no longer have to worry 
about losing their jobs or health insurance due to absences to care 
for a covered seriously injured or ill servicemember or due to a 
qualifying exigency resulting from active duty or call to active 
duty in support of a contingency operation.

73 FR 68069. Based on the preceding analysis, and the availability of 
recent research examining the impacts of service-connected injuries and 
illnesses, the Department also anticipates additional benefits to 
accrue to servicemembers and their families from the FY 2010 NDAA 
amendments.
    Providing job-protected leave for caregivers of covered veterans 
under the military caregiver provision is expected to have several 
benefits, including increased family involvement in recovery, improved 
self-reliance and access to resources for caregivers, and a reduction 
in negative outcomes for covered veterans and their families.
    Recent research suggests that as many as 30 percent of returning 
servicemembers may suffer from symptoms of PTSD, major depression, and/
or traumatic brain injury. These individuals often suffer from:
    [ssbox] Co-morbitities such as anxiety and mood disorders, and 
substance abuse,
    [ssbox] Increased risk of suicidal ideation and attempts;
    [ssbox] Higher rates of unhealthy behaviors such as smoking, poor 
diet, and unsafe sex;
    [ssbox] Higher rates of other health problems and mortality; and
    [ssbox] Decreased work productivity in the form of missed work days 
and decreased performance at work.\50\
---------------------------------------------------------------------------

    \50\ Tanielian, Terri and Lisa Jaycox. 2008. Invisible wounds of 
war: psychological and cognitive injuries, their consequences, and 
services to assist recovery. RAND. Available for download at URL: 
www.rand.org
---------------------------------------------------------------------------

    While this study focused on active servicemembers, these disorders 
involve long timeframes for recovery and management of the symptoms so 
it is reasonable to conclude that these same issues would impact the 
servicemember following separation from service. Furthermore, the 
impact of these disorders, and other serious injuries or illnesses 
incurred by covered servicemembers and veterans, extends to family 
members as well. Common issues include marital discord and increased 
likelihood of divorce, intimate partner violence, poor parenting skills 
and poor child outcomes, and caregiver burden. In ``Economic Impact on 
Caregivers of the Seriously Wounded, Ill, and Injured,'' the authors 
describe the impact on caregivers as follows:

    Family support is critical to patients' successful 
rehabilitation. Especially in a prolonged recovery, it is family 
members who make therapy appointments and ensure they are kept, 
drive the servicemember to these appointments, pick up medications 
and make sure they are taken, provide a wide range of personal care, 
become the impassioned advocates, take care of the kids, pay the 
bills and negotiate with the benefits offices, find suitable housing 
for a family that includes a person with a disability, provide 
emotional support, and, in short, find they have a full-time job--or 
more--for which they never prepared. When family members give up 
jobs to become caregivers, income can drop precipitously.\51\

    \51\ Christensen, et. al., April 2009, Economic Impact on 
Caregivers of the Seriously Wounded, Ill, and Injured, CNA, p. 8.

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

[[Page 9003]]

    The support provided by caregivers plays a pivotal role in the 
course of the servicemember's recovery, as noted in ``Invisible Wounds 
---------------------------------------------------------------------------
of War'':

    The likelihood that the condition will trigger a negative 
cascade of consequences over time is greater if the initial symptoms 
of the condition are more severe and the afflicted individual has 
other sources of vulnerability * * * Early interventions are likely 
to pay long-term dividends in improved outcomes for years to come; 
so, it is critical to help servicemembers and veterans seek and 
receive treatment.\52\
---------------------------------------------------------------------------

    \52\ Tanielian and Jaycox, 2008.

    Providing caregivers with job-protected FMLA leave to care for 
their family member who is a covered veteran creates a window of 
opportunity to interrupt the negative cascade of consequences 
experienced by sufferers of PTSD, TBI and depression. Furthermore, 
maintaining the flow of resources and self-sufficiency provided by a 
secure employment situation ensures that the caregivers are able to 
maintain their own mental and physical health during the veteran's 
recovery process.\53\
---------------------------------------------------------------------------

    \53\ Christensen, et. al., 2009, p.9.
---------------------------------------------------------------------------

    At this point, there is not sufficient data to accurately estimate 
the number of servicemembers suffering from these disorders or the 
range of severity of symptoms; as a result, we are unable to quantify 
the benefits of reduced rates of negative outcomes for affected 
veterans and their families. However, in ``Invisible Wounds of War,'' 
RAND developed estimates of costs associated with PTSD, major 
depression, and TBI stemming from the conflicts in Afghanistan and 
Iraq. For example:
    [ssbox] Servicemembers diagnosed with PTSD incur costs of $5,000-
10,000 per servicemember during the first two years after returning 
home.\54\
---------------------------------------------------------------------------

    \54\ RAND, 2008, p. xxiii. Variation due to severity and 
inclusion, or not, of cost of lives lost to suicide. Costs do not 
include costs due to substance abuse, domestic violence, 
homelessness, or family strain.
---------------------------------------------------------------------------

    [ssbox] Servicemembers diagnosed with major depression incur costs 
of $15,000--25,000 per servicemember during the first two years after 
returning home.\55\
---------------------------------------------------------------------------

    \55\ RAND, 2008, p. xxiii. Costs associated with co-morbid PTSD 
and depression are approximately $12,000 to 16,000.
---------------------------------------------------------------------------

    [ssbox] Servicemembers diagnosed with TBI incur costs of $27,000 to 
32,000 for a mild case up to $268,000 to 408,000 for severe cases.\56\
---------------------------------------------------------------------------

    \56\ RAND, 2008, p. xxiii. Costs presented in 2007 dollars.
---------------------------------------------------------------------------

    The proposed regulatory change will likely reduce these costs, and 
the costs associated with other negative outcomes associated with these 
diagnoses; but, at this point in time we do not have sufficient data to 
estimate the reduction in costs.
2. Airline Industry FMLA Leave
    As a result of the proposed changes airline flight crew employees 
will enjoy all the benefits of FMLA coverage that have been afforded to 
employees in other industries. Additionally, as discussed in the 2008 
final rule, employers may see reduced ``presenteeism''--the loss of 
productivity due to employees working while injured or ill--and a 
resultant increase in overall productivity, workplace safety, and 
wellness among employees. 73 FR 68071.

VI. Small Business Regulatory Enforcement Fairness Act; Regulatory 
Flexibility

    This section describes the analysis of impacts on small entities of 
the proposed rule. The Regulatory Flexibility Act of 1980 (RFA) 
requires agencies to prepare regulatory flexibility analyses and make 
them available for public comment when proposing regulations that will 
have a significant economic impact on a substantial number of small 
entities. See 5 U.S.C. 603. 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 an Initial Regulatory 
Flexibility Analysis under the RFA is not required for this rulemaking. 
The FMLA covers private employers of 50 or more employees; employers 
with fewer than 50 employees are exempt. Moreover, Congress defined, 
for the purpose of the FMLA, a small business to be one with fewer than 
50 employees. Therefore, changes to the FMLA regulations by definition 
will not impact small businesses.\57\ However, in the interest of 
transparency and to provide an opportunity for public comment, the 
Department has prepared the following analysis to assess the impact of 
this regulation on small entities (as defined by the applicable SBA 
size standards). The Chief Counsel for Advocacy of the Small Business 
Administration was notified of a draft of this rule upon submission of 
the rule to the Office of Management and Budget under E.O. 12866.
---------------------------------------------------------------------------

    \57\ SBA Office of Advocacy: A Guide for Governmental Agencies--
How to Comply with the Regulatory Flexibility Act. June 2010. http://www.sba.gov/sites/default/files/rfaguide.pdf.
---------------------------------------------------------------------------

    The Small Business Administration size standard is 500 employees, 
therefore employers with 50 to 500 employees will be affected by this 
regulation. Coverage under the FMLA is limited to an estimated 314,752 
small employers with 50 to 500 employees. This rule is estimated to 
cost an average of $190 per firm in the first year, and an average of 
$157 per firm each year thereafter. See Table 5-3. Therefore, this 
regulation will not have a significant economic impact on any of these 
small entities. The Department certifies this NPRM is not likely to 
have a significant economic impact on a substantial number of small 
entities, and, accordingly, a regulatory flexibility analysis is not 
required by the RFA.
1. Number of Small Entities
    The RFA defines a ``small entity'' as a: (1) Small not-for-profit 
organization, (2) small governmental jurisdiction, or (3) small 
business. The Department relied upon standards defined by the Small 
Business Administration (SBA) to identify firms and governments 
classified as small. For the purposes of this rulemaking effort, we did 
not attempt to analyze not-for-profit organizations other than as they 
appear in the BLS QCEW data used as the basis for the analysis (e.g., 
not-for-profit hospitals); the estimation of such not-for-profits is 
therefore included in the estimation of other small firms as described 
below.
    This analysis focuses solely on the costs and impacts of the 
proposed regulations on small entities and draws on the industry 
profile described in the E.O. 12866 analysis of this preamble. The 
Department assumed all firms with fewer than 500 employees are small.
    A small governmental jurisdiction is defined as the government of a 
city, county, town, township, village, school district, or special 
district with a population of less than 50,000. The Department used the 
field specifying the population of the governmental jurisdiction in the 
Census of Governments to determine the number of government entities 
considered small for RFA purposes. All State governments were assumed 
to be large for RFA purposes.
    Applying these size assumptions to the universe of potentially 
affected firms (Tables 6-1A) we estimate that 83 percent of entities, 
about 315,000 impacted by the proposed rule meet SBA's criteria for a 
small entity. Of those, 251,000 are private sector businesses employing 
about 57 percent of all workers and earning about 57 percent of 
estimated revenues. The remaining 63,600 are small government entities 
employing about 11 percent of workers and accruing about 5 percent of 
all estimated revenues. About 17

[[Page 9004]]

percent of private businesses and government agencies are non-small for 
RFA purposes. These entities employ more than 32 percent of workers, 
pay 64 percent of wages, and earn 39 percent of annual revenues.

                           Table 6-1A--Covered Firms and Workers by SBA Size Standards
----------------------------------------------------------------------------------------------------------------
                                                 Number and percent    Number and percent    Number and percent
                   Industry                       of establishments       of employment           of firms
----------------------------------------------------------------------------------------------------------------
Small
    Private...................................          1,051,716 84         52,113,983 57            251,134 66
    Government................................            127,235 10         10,085,977 11             63,617 17
                                               -----------------------------------------------------------------
        Subtotal..............................          1,178,951 94         62,199,960 68            314,751 83
Non Small
    Private...................................              16,436 1         19,646,940 22             40,025 11
    Government................................              52,717 4          9,299,992 10              25,909 7
                                               -----------------------------------------------------------------
        Subtotal..............................              69,153 6         28,946,932 32             65,934 18
Total
    Private...................................          1,068,152 86         71,760,923 79            291,159 76
    Government................................            179,952 14         19,385,969 21             89,526 24
                                               -----------------------------------------------------------------
        Total.................................         1,248,104 100        91,146,892 100           380,685 100
----------------------------------------------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
                                                   Annual Payroll        Estimated 2008      Estimated 2008 net
                   Industry                      ($mil.) and percent  revenues ($mil.) and   income ($mil.) and
                                                      of total          percent of total      percent of total
----------------------------------------------------------------------------------------------------------------
Small
    Private...................................         $1,375,524 28        $13,423,633 57           $304,497 30
    Government................................             395,610 8           1,092,309 5              26,180 3
                                               -----------------------------------------------------------------
        Subtotal..............................          1,771,134 36         14,515,943 61            330,677 32
Non Small
    Private...................................          2,823,743 57          6,763,222 29            319,226 31
    Government................................             374,268 8          2,444,202 10            375,124 37
                                               -----------------------------------------------------------------
        Subtotal..............................          3,198,011 64          9,207,424 39            694,349 68
Total
    Private...................................          4,199,267 85         20,186,856 85            623,723 61
    Government................................            769,878 15          3,536,511 15            401,304 39
                                               -----------------------------------------------------------------
        Total.................................         4,969,145 100        23,723,367 100        1,025,0267 100
----------------------------------------------------------------------------------------------------------------

    Table 6-1B presents the number of affected entities for the air 
transportation industry. While 63 percent of firms are small by SBA 
standards, the 37 percent of firms that are not small account for 75 
percent of establishments, 95 percent of employees and payroll, 96 
percent of revenues and 99 percent of net income.

         Table 6-1B--Air Transportation Industry (NAICS 481) Covered Firms and Workers by SBA Standards
----------------------------------------------------------------------------------------------------------------
                                                 Number and percent    Number and percent    Number and percent
                   Industry                       of establishments        employment             of firms
----------------------------------------------------------------------------------------------------------------
Small.........................................                728 25              25,004 5                231 63
Non Small.....................................              2,204 75            506,796 95                135 37
                                               -----------------------------------------------------------------
    Total.....................................             2,932 100           531,800 100               366 100
----------------------------------------------------------------------------------------------------------------


   Table 6-1B-Continued--Payroll, Revenue, and Income of Air Transportation Industry Covered Firms by SBA Size
                                                    Standards
----------------------------------------------------------------------------------------------------------------
                                                   Annual payroll      Estimated revenues   Estimated net income
                   Industry                      ($mil.) and percent   ($mil.) and percent   ($mil.) and percent
                                                      of total              of total              of total
----------------------------------------------------------------------------------------------------------------
Small.........................................              $1,185 5              $4,321 4                 $38 1
Non Small.....................................             24,905 95             98,496 96              3,188 99
                                               -----------------------------------------------------------------
    Total.....................................            26,090 100           102,817 100             3,226 100
----------------------------------------------------------------------------------------------------------------


[[Page 9005]]

2. Cost to Small Entities
    Table 6-2A summarizes estimated first-year, recurring, and 
annualized compliance costs attributable to the proposed rule for both 
small and non-small businesses. Among all entities (both business and 
government) potentially affected by the proposed rule 83 percent are 
small for the purposes of the RFA. See Table 6-1A. They are projected 
to incur about 71 percent of first-year costs, 68 percent of recurring 
costs, and 68 percent of average annualized costs. See Table 6-2A. In 
the air transportation industry, small entities account for 8 percent 
of first-year costs, 5 percent of recurring costs, and 5 percent of 
average annualized costs although they compose 63 percent of firms. See 
Table 6-2B.

                                Table 6-2A--Compliance Costs by Business Size [a]
----------------------------------------------------------------------------------------------------------------
                                                 First year ($1000)     Recurring ($1000)    Annualized ($1000)
                   Industry                     and percent of total  and percent of total  and percent of total
----------------------------------------------------------------------------------------------------------------
Small
    Private...................................            $40,716 56            $33,981 57            $34,877 57
    Government................................              9,994 14              6,585 11              7,039 11
                                               -----------------------------------------------------------------
        Subtotal..............................             50,709 70             40,566 68             41,916 68
Non Small
    Private...................................             14,048 19             12,972 22             13,116 21
    Government................................              7,652 11              6,264 10              6,449 11
                                               -----------------------------------------------------------------
        Subtotal..............................             21,689 30             19,225 32             19,553 32
Total
    Private...................................             54,764 76             46,954 79             47,993 78
    Government................................             17,646 24             12,849 22             13,487 22
                                               -----------------------------------------------------------------
        Total.................................            72,398 100            59,791 100            61,469 100
----------------------------------------------------------------------------------------------------------------
[a] Column totals may not sum due to rounding.


              Table 6-2B--Air Transportation Industry (NAICS 481) Compliance Costs by Business Size
----------------------------------------------------------------------------------------------------------------
                                                   First year and         Recurring and        Annualized and
                   Industry                       percent of total      percent of total      percent of total
                                                       ($1000)               ($1000)               ($1000)
----------------------------------------------------------------------------------------------------------------
Small.........................................                 $30 8                 $17 5                 $19 5
Non Small.....................................                362 92                355 95                355 95
                                               -----------------------------------------------------------------
    Total.....................................               392 100               372 100               375 100
----------------------------------------------------------------------------------------------------------------

    Small entities constitute the substantial majority of affected 
entities and are projected to incur the majority of compliance costs; 
however, they do not bear a disproportionate share of projected costs, 
nor will those costs result in a significant economic impact on those 
small entities. First-year costs of the rule are the largest costs 
incurred by all entities, but these average less than $200 for small 
firms in the private sector and for small government entities. See 
Table 6-3A. Estimated compliance costs per firm for small firms do not 
compose a higher percentage of firm revenues than for large firms, and 
in no case does that cost exceed 0.01 percent of firm revenues. For 
small air transportation firms, the cost per firm is smaller than the 
overall average (see Table 6-3B); for non-small firms, cost per firm is 
larger than the overall average, but still composes one ten-thousandth 
of a percent of annual revenues.

                   Table 6-3A--Compliance Costs Presented as Cost per Firm and Cost as a Percent of Firm Income, by SBA Size Standards
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    First year                       Recurring                      Annualized
                                                         -----------------------------------------------------------------------------------------------
                        Industry                                              Cost as                         Cost as                         Cost as
                                                           Cost per firm    percent of     Cost per firm    percent of     Cost per firm    percent of
                                                                              income                          income                          income
--------------------------------------------------------------------------------------------------------------------------------------------------------
Small
    Private.............................................            $162         0.00000            $135         0.00000            $139         0.00000
    Government..........................................             157         0.00001             104         0.00000             111         0.00000
        Subtotal........................................             161         0.00000             129         0.00000             133         0.00000
Non Small
    Private.............................................             351         0.00000             324         0.00000             328         0.00000
    Government..........................................             295         0.00000             242         0.00000             249         0.00000
        Subtotal........................................             329         0.00000             292         0.00000             297         0.00000
Total
    Private.............................................             188         0.00000             161         0.00000             165         0.00000
    Government..........................................             197         0.00000             144         0.00000             151         0.00000

[[Page 9006]]

 
        Total...........................................             190         0.00000             157         0.00000             161         0.00000
--------------------------------------------------------------------------------------------------------------------------------------------------------


        Table 6-3B--Compliance Costs to Air Transportation Presented as Cost per Firm and Cost as a Percent of Firm Income, by SBA Size Standards
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    First year                       Recurring                      Annualized
                                                         -----------------------------------------------------------------------------------------------
                        Industry                                              Cost as                         Cost as                         Cost as
                                                           Cost per firm    percent of     Cost per firm    percent of     Cost per firm    percent of
                                                                              income                          income                          income
--------------------------------------------------------------------------------------------------------------------------------------------------------
Small...................................................            $129          0.0003             $76          0.0002             $83          0.0002
Non Small...............................................           2,674          0.0001           2,621          0.0001           2,628          0.0001
    Total...............................................           1,070          0.0000           1,016          0.0000           1,023          0.0000
--------------------------------------------------------------------------------------------------------------------------------------------------------

    In summary, although the potential impacts of the proposed rule are 
larger for small firms when measured as the absolute cost per firm or 
employee, or as a percent of firm revenues or employee wages, small 
firms do not bear a disproportionate burden under this rule. Therefore, 
the Department believes that the proposed rule will not have a 
significant economic impact on a substantial number of small entities. 
Furthermore, as noted above, Congress defined ``small business'' for 
the purpose of the FMLA as one employing fewer than 50 employees and 
the proposed regulation therefore, by definition, does not impact small 
entities. However, using SBA's size standard of 500 employees to define 
``small business'', an estimated 314,752 employers with 50 to 500 
employees are covered by the FMLA, this rule is only estimated to cost 
an average of $161 per small firm in the first year, and an average of 
$129 per small firm each year thereafter. This regulation will not have 
a significant economic impact on any of these small entities. 
Therefore, the Department has determined and certified that this rule 
will not have a significant economic impact on a substantial number of 
small entities.
Appendix A: Military Family Leave Profile
    In order to estimate the number of individuals who may take leave 
under the qualifying exigency or military caregiver provisions as a 
result of the proposed changes, the Department estimated (1) the number 
of active duty servicemembers whose family members are entitled to 
qualifying exigency leave and the number of veterans whose family 
members will be entitled to caregiver leave, (2) the age profile of 
those servicemembers and veterans, and (3) the number of eligible 
family members or caregivers associated with that age profile. The 
first estimate is described earlier in this preamble. This appendix 
provides an explanation of the method used to develop the age profiles 
and eligible family members.
Overview of Approach
    The Department attempted to replicate the method used in the CONSAD 
2007 report to ensure consistency with previous estimates.\58\ In that 
report, CONSAD used data from the Defense Manpower Database, the 
Current Population Survey, and the decennial Census of Population to 
estimate the age distribution of servicemembers; the proportion of 
servicemembers in each age category with living parents, a spouse, and 
children (over 18 years of age); \59\ and the proportion of those 
individuals who may be employed by a covered employer. The Department 
used these estimates to determine the likely number of family members 
eligible to take leave for a qualifying exigency or to act as a 
caregiver for a covered veteran.
---------------------------------------------------------------------------

    \58\ CONSAD 2007. Appendix A.
    \59\ Under military caregiver leave a designated ``next of kin'' 
may also take leave to care for a covered veteran. We accounted for 
these individuals by assuming that every covered veteran has at 
least one caregiver.
---------------------------------------------------------------------------

    The first step is to apply the age profile of servicemembers to the 
estimated number of servicemembers to distribute the number of 
servicemembers to the age groups. Table A-1 presents the estimated 
proportion of servicemembers by age range estimated by CONSAD. The 
Department aggregated the age groups for this calculation. For example, 
if the proposed rule was expected to affect 100 servicemembers then 
this age profile would estimate that 47 of them would be between the 
ages of 22 and 30 years old.

                Table A-1--Age Profile of Servicemembers
------------------------------------------------------------------------
                                                              Average
                                                             estimated
                                                           proportion of
        General military servicemember age range             military
                                                              members
                                                             (percent)
------------------------------------------------------------------------
18-21...................................................            19.9
22-30...................................................            47.0
31-40...................................................            24.8
41-50...................................................             8.0
51-59...................................................             0.6
------------------------------------------------------------------------

    The next step is to estimate the number of servicemembers in each 
age group with 0, 1, 2, 3, 4, or 5 eligible family members. Table A-2 
presents the estimated number of eligible family members by age range 
of the servicemember.

[[Page 9007]]



                                       Table A-2--Proportion of Servicemembers With ``n'' Eligible Family Members
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      Proportion of servicemembers with n eligible family members, where n =
        General military servicemember age range         -----------------------------------------------------------------------------------------------
                                                              0  (%)          1  (%)          2  (%)          3  (%)          4  (%)          5  (%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
18-21...................................................           29.32            49.5            21.0             0.2             0.0             0.0
22-30...................................................           27.38            46.5            23.3             2.8             0.0             0.0
31-40...................................................           31.08            44.1            21.1             3.6             0.2             0.2
41-50...................................................           37.78            40.4            16.9             4.2             0.7             0.1
51-59...................................................           45.25            35.4            14.6             3.9             0.7             0.1
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Finally, the number of estimated eligible family members for each 
age group of servicemembers is summed up by multiplying the number of 
servicemembers in each column by the number of eligible family members. 
For example, for each age group the calculation is ( x 0) + 
( x 1) + ( x 2) + ( x 3) + ( x 4) + 
( x 5). Next, the total number of eligible family members is 
summed across the age groups to estimate the total number of eligible 
family members.
    The following sections illustrate this method for the calculation 
of the number of eligible family members who may take qualifying 
exigency leave, and the number of eligible family members who may take 
leave to act as a military caregiver for a covered veteran.
Qualifying Exigency Leaves
    Table A-3 presents the calculation of the projected number of 
servicemembers in each age category based on the estimated average 
number of covered military members and age profile of military members.

                    Table A-3--Estimated Age Profile of Servicemembers on Covered Active Duty
----------------------------------------------------------------------------------------------------------------
                                                                            Average estimated
                                                           Total average      proportion of     Projected number
        General military servicemember age range             number of       military members  of servicemembers
                                                          military members     by age range    on covered active
                                                                                (percent)        duty per year
----------------------------------------------------------------------------------------------------------------
18-21..................................................            197,000               19.9             39,203
22-30..................................................            197,000               47.0             92,590
31-40..................................................            197,000               24.8             48,856
41-50..................................................            197,000                8.0             15,760
51-59..................................................            197,000                0.6              1,182
----------------------------------------------------------------------------------------------------------------

    Table A-4 presents the calculation of the number of eligible family 
members of servicemembers in each age group; this combines the 
projected number of servicemembers from Table A-3 with the distribution 
of family members presented in Table A-2.

                                  Table A-4--Estimated Number of Eligible Family Members of Servicemembers by Age Range
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                           Number of eligible family members                    Total
                                                               Projected   -----------------------------------------------------------------  number of
                         Age range                             number of                                                                       eligible
                                                            servicemembers      0         1         2         3           4           5         family
                                                                                                                                               members
--------------------------------------------------------------------------------------------------------------------------------------------------------
18-21.....................................................         39,203     11,492    19,386     8,233       92.1        0           0          36,128
22-30.....................................................         92,590     25,353    43,086    21,533    2,615          0           0          93,996
31-40.....................................................         48,856     15,184    21,545    10,331    1,750         85.5         9.8        47,848
41-50.....................................................         15,760      5,954     6,362     2,656      657        116          16.5        14,190
51-59.....................................................          1,182        535       419       172       46.5        8.39        1.18          942
                                                           ---------------------------------------------------------------------------------------------
    Total.................................................        197,591     58,519    90,798    42,924    5,161        210          28         193,104
--------------------------------------------------------------------------------------------------------------------------------------------------------

Military Caregiver Leaves
    Table A-5 presents the calculation of the projected number of 
servicemembers in each age category based on the estimated average 
number and age profile of servicemembers and covered veterans.

[[Page 9008]]



     Table A-5--Estimated Age Profile of Servicemembers and Covered Veterans With Serious Injury or Illness
----------------------------------------------------------------------------------------------------------------
                                                                            Average estimated   Projected number
                                                           Total average      proportion of    of servicemembers
        General military servicemember age range             number of       military members     with serious
                                                          military members     by age range    injury or illness
                                                                                 percent)           per year
----------------------------------------------------------------------------------------------------------------
18-21..................................................             92,500               19.8             18,352
22-30..................................................             92,500               46.9             43,345
31-40..................................................             92,500               24.7             22,871
41-50..................................................             92,500                8.0              7,378
51-59..................................................             92,500                0.6                553
----------------------------------------------------------------------------------------------------------------

    Table A-6 presents the calculation of the number of eligible 
caregivers of servicemembers in each age group; this combines the 
projected number of servicemembers from Table A-5 with the distribution 
of family members presented in Table A-2 with one difference. Under 
military caregiver leave we assume that each covered servicemember has 
at least one caregiver; so, the servicemembers in the category ``0'' 
caregivers are assumed to have at least 1 caregiver.

                                    Table A-6--Estimated Number of Eligible Caregivers of Servicemembers by Age Range
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                           Number of eligible family members                    Total
                                                                Projected  -----------------------------------------------------------------  number of
                          Age range                             number of                                                                      eligible
                                                                 service        0         1         2         3           4           5         family
                                                                 members                                                                       members
--------------------------------------------------------------------------------------------------------------------------------------------------------
18-21........................................................       18,352     5,380     9,075     3,854       43.1        0           0          22,293
22-30........................................................       43,345    11,869    20,170    10,080    1,224          0           0          55,872
31-40........................................................       22,871     7,108    10,086     4,836      819         40.0         4.6        29,508
41-50........................................................        7,378     2,787     2,978     1,243      308         54           7.7         9,430
51-59........................................................          553       250       196        81       21.7        3.93        0.55          691
                                                              ------------------------------------------------------------------------------------------
    Total....................................................       92,500    27,395    42,506    20,094    2,416         98          13         117,794
--------------------------------------------------------------------------------------------------------------------------------------------------------

VII. 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 (equivalent 
to $143 million in 2010 dollars after adjusting for inflation).
    State, local, and tribal government entities are within the scope 
of the regulated community for this proposed regulation. The Department 
has determined that this rule contains a Federal mandate that is 
unlikely to result in expenditures of $143 million or more for State, 
local, and tribal governments, in the aggregate, or the private sector 
in any one year. Total costs to government entities do not exceed $25 
million in any single year of the rule (see Table 7-2A). Total costs to 
the private sector do not exceed $53 million in the first, most costly 
year of the rule. See Table 7-2A. The total first year cost of this 
rule is estimated at $72.4 million to the private and public sectors 
combined. Thus, the proposed rule is not expected to result in any 
expenditures of $100 million or more for State, local, and tribal 
governments, in the aggregate, or the private sector in any one year.

VIII. 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.

IX. 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.

X. 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.

XI. 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 although the rule 
addresses family and medical leave provisions of the FMLA including the 
rights of employees to take leave for the birth or adoption of a child 
and to care for a healthy newborn or adopted

[[Page 9009]]

child, and to take leave to care for a son or daughter with a serious 
health condition, it does not concern environmental health or safety 
risks that may disproportionately affect children.

XII. Environmental Impact Assessment

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

XIII. 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.

XIV. 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.

XV. 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 30th day of January, 2012.
Nancy J. Leppink,
Deputy Administrator, Wage and Hour Division.

    For the reasons set out in the preamble, the Department of Labor 
proposes to amend Title 29 part 825 of the Code of Federal Regulations 
as follows:
    1. The authority citation for part 825 continues to read as 
follows:

    Authority:  29 U.S.C. 2654

Subpart A--Coverage Under the Family and Medical Leave Act

    2. Amend Sec.  825.100 by revising the first and second sentences 
of paragraph (a) to read as follows:


Sec.  825.100  The Family and Medical Leave Act.

    (a) The Family and Medical Leave Act of 1993, as amended, (FMLA or 
Act) allows ``eligible'' employees of a covered employer to take job-
protected, unpaid leave, or to substitute appropriate paid leave if the 
employee has earned or accrued it, for up to a total of 12 workweeks in 
any 12 months (see Sec.  825.200(b)) because of the birth of a child 
and to care for the newborn child, because of the placement of a child 
with the employee for adoption or foster care, because the employee is 
needed to care for a family member (child, spouse, or parent) with a 
serious health condition, because the employee's own serious health 
condition makes the employee unable to perform the functions of his or 
her job, or because of 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 or call to covered active duty status. In 
addition, ``eligible'' employees of a covered employer may take job-
protected, unpaid leave, or substitute appropriate paid leave if the 
employee has earned or accrued it, for up to a total of 26 workweeks in 
a ``single 12-month period'' to care for a covered servicemember with a 
serious injury or illness. * * *
* * * * *
    3. Amend Sec.  825.101 by revising the first sentence of paragraph 
(a) to read as follows:


Sec.  825.101  Purpose of the Act.

    (a) FMLA is intended to allow employees to balance their work and 
family life by taking reasonable unpaid leave for medical reasons, for 
the birth or adoption of a child, for the care of a child, spouse, or 
parent who has a serious health condition, for the care of a covered 
servicemember with a serious injury or illness, or because of a 
qualifying exigency arising out of the fact that the employee's spouse, 
son, daughter, or parent is a military member on covered active duty or 
call to covered active duty status. * * *
* * * * *
    4. Amend Sec.  825.107 by revising the last sentence of paragraph 
(c) to read as follows:


Sec.  825.107  Successor in interest coverage.

* * * * *
    (c) * * * A successor which meets FMLA's coverage criteria must 
count periods of employment and hours of service with the predecessor 
for purposes of determining employee eligibility for FMLA leave.
    5. Amend Sec.  825.110 by:
    a. revising paragraph (a)(2);
    b. revising the first and third sentences of paragraph (b)(2)(i);
    c. revising the first sentence of paragraph (c)(1);
    d. adding new paragraph (c)(2);
    e. re-designating current paragraph (c)(2) as (c)(3);
    f. revising the first sentence of newly designated paragraph 
(c)(3);
    g. re-designating current paragraph (c)(3) as (c)(4);
    h. revising newly designated (c)(4); and
    i. revising paragraph (d)

to read as follows:


Sec.  825.110  Eligible employee.

    (a) * * *
    (2) Has been employed for at least 1,250 hours of service during 
the 12-month period immediately preceding the commencement of the leave 
(see Sec.  825.110(c)(2) for special hours of service requirements for 
airline flight crew employees), and
* * * * *
    (b) * * *
    (2) * * *
    (i) The employee's break in service is occasioned by the 
fulfillment of his or her Uniformed Services Employment and 
Reemployment Rights Act (USERRA), 38 U.S.C. 4301, et seq., qualifying 
military service obligation. * * * However, this section does not 
provide any greater entitlement to the employee than would be available 
under USERRA; or * * *
* * * * *
    (c)(1) Except as provided in paragraph (c)(2) and (3) of this 
section, whether an employee has worked the minimum 1,250 hours of 
service is determined according to the principles established under the 
Fair Labor Standards Act (FLSA) for determining compensable hours of 
work. * * *
    (2) Whether an airline flight crew employee meets the hours of 
service requirement is determined by assessing the number of hours the 
employee has worked or been paid over the previous 12 months. An 
airline flight crew employee will meet the hours of service requirement 
during the previous 12-month period if he or she has worked or been 
paid for not less than 60 percent of the employee's applicable monthly 
guarantee and has worked or been paid for not less than 504 hours.

[[Page 9010]]

    (i) The applicable monthly guarantee for an airline flight crew 
employee who is not on reserve status is the minimum number of hours 
for which an employer has agreed to schedule such employee for any 
given month. The applicable monthly guarantee for an airline flight 
crew employee who is on reserve status is the number of hours for which 
an employer has agreed to pay the employee for any given month
    (ii) The hours an airline flight crew employee has worked for 
purposes of the hours of service requirement is the employee's duty 
hours during the previous 12-month period. The hours an airline flight 
crew employee has been paid is the number of hours for which an 
employee received wages during the previous 12-month period. The 504 
hours do not include personal commute time or time spent on vacation, 
medical, or sick leave.
    (3) An employee returning from his or her USERRA qualifying 
military service shall be credited with the hours of service that would 
have been performed but for the period of military service in 
determining the employee's eligibility for FMLA-qualifying leave. * * *
    (4) In the event an employer does not maintain an accurate record 
of hours worked by an employee (or hours paid, in the case of an 
airline flight crew employee), including for employees who are exempt 
from FLSA's requirement that a record be kept of their hours worked 
(e.g., bona fide executive, administrative, and professional employees 
as defined in FLSA regulations, 29 CFR part 541), the employer has the 
burden of showing that the employee has not worked the requisite hours. 
An employer must be able to clearly demonstrate, for example, that 
full-time teachers (see Sec.  825.102 for definition) of an elementary 
or secondary school system, or institution of higher education, or 
other educational establishment or institution (who often work outside 
the classroom or at their homes) did not work 1,250 hours during the 
previous 12 months in order to claim that the teachers are not eligible 
for FMLA leave. Similarly, an employer must be able to clearly 
demonstrate that airline flight crew employees have not ``worked or 
been paid'' for 60 percent of their applicable monthly guarantee or for 
504 hours during the previous 12 months in order to claim that the 
airline flight crew employees are not eligible for FMLA leave.
    (d) The determination of whether an employee meets the hours of 
service requirement and has been employed by the employer for a total 
of at least 12 months must be made as of the date the FMLA leave is to 
start. An employee may be on ``non-FMLA leave'' at the time he or she 
meets the 12-month eligibility requirement, and in that event, any 
portion of the leave taken for an FMLA-qualifying reason after the 
employee meets the eligibility requirement would be ``FMLA leave.'' 
(See Sec.  825.300(b) for rules governing the content of the 
eligibility notice given to employees.)
* * * * *
    6. Amend Sec.  825.112 by revising paragraph (a)(5) and (a)(6) to 
read as follows:


Sec.  825.112  Qualifying reasons for leave, general rule.

    (a) * * *
    (5) Because of 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 or call to covered active duty status (see 
Sec. Sec.  825.122 and 825.126); and
    (6) To care for a covered servicemember with a serious injury or 
illness if the employee is the spouse, son, daughter, parent, or next 
of kin of the covered servicemember (see Sec. Sec.  825.122 and 
825.127).
* * * * *
    7. Amend Sec.  825.122 by:
    a. revising the section heading;
    b. replacing ``active duty'' with ``covered active duty'' in each 
instance that it appears in the heading and this section;
    c. re-designating current paragraphs (a) through (j) as (b) through 
(k)
    d. adding new paragraph (a); and
    e. revising the last sentence in paragraph (h)
    The additions and revisions 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.

    (a) Covered servicemember. Covered servicemember means
    (1) A current member of the Armed Forces, including a member of the 
National Guard or Reserves, who is undergoing medical treatment, 
recuperation or therapy, is otherwise in outpatient status, or is 
otherwise on the temporary disability retired list, for a serious 
injury or illness; or
    (2) A covered veteran who is undergoing medical treatment, 
recuperation, or therapy for a serious injury or illness. ``Covered 
veteran'' means an individual who was discharged or released under 
conditions other than dishonorable at any time during the five-year 
period prior to the first date of the employee's military caregiver 
leave.
* * * * *
    (h) * * * See Sec.  825.126(a)(5).
* * * * *
    7. Revise Sec.  825.126 to read as follows:


Sec.  825.126  Leave because of a qualifying exigency.

    (a) Eligible employees may take FMLA leave for a qualifying 
exigency while the employee's spouse, son, daughter, or parent (the 
``military member'' or ``member'') is on covered active duty or call to 
covered active duty status.
    (1) ``Covered active duty or call to covered active duty status'' 
in the case of a member of the Regular Armed Forces means duty under a 
call or order to active duty (or notification of an impending call or 
order to covered active duty) during the deployment of the member with 
the Armed Forces to a foreign country. The active duty orders of a 
member of the Regular components of the Armed Forces will generally 
specify if the member is deployed to a foreign country.
    (2) ``Covered active duty or call to covered active duty status'' 
in the case of a member of the Reserve components of the Armed Forces 
means duty under a call or order to active duty (or notification of an 
impending call or order to active duty) during the deployment of the 
member with the Armed Forces to a foreign country under a Federal call 
or order to active duty in support of a contingency operation pursuant 
to: Section 688 of Title 10 of the United States Code, which authorizes 
ordering to active duty retired members of the Regular Armed Forces and 
members of the retired Reserve who retired after completing at least 20 
years of active service; Section 12301(a) of Title 10 of the United 
States Code, which authorizes ordering all reserve component members to 
active duty in the case of war or national emergency; Section 12302 of 
Title 10 of the United States Code, which authorizes ordering any unit 
or unassigned member of the Ready Reserve to active duty; Section 12304 
of Title 10 of the United States Code, which authorizes ordering any 
unit or unassigned member of the Selected Reserve and certain members 
of the Individual Ready Reserve to active duty; Section 12305 of Title 
10 of the United States Code, which authorizes the suspension of 
promotion, retirement or separation rules for certain Reserve

[[Page 9011]]

components; Section 12406 of Title 10 of the United States Code, which 
authorizes calling the National Guard into Federal service in certain 
circumstances; Chapter 15 of Title 10 of the United States Code, which 
authorizes calling the National Guard and State military into Federal 
service in the case of insurrections and national emergencies; or any 
other provision of law during a war or during a national emergency 
declared by the President or Congress so long as it is in support of a 
contingency operation. See 10 U.S.C. 101(a)(13)(B).
    (i) For purposes of covered active duty or call to covered active 
duty status, the Reserve components of the Armed Forces include the 
Army National Guard of the United States, Army Reserve, Navy Reserve, 
Marine Corps Reserve, Air National Guard of the United States, Air 
Force Reserve and Coast Guard Reserve, and retired members of the 
Regular Armed Forces or Reserves who are called up in support of a 
contingency operation pursuant to one of the provisions of law 
identified in paragraph (a)(2).
    (ii) The active duty orders of a member of the Reserve components 
will generally specify if the military member is serving in support of 
a contingency operation by citation to the relevant section of Title 10 
of the United States Code and/or by reference to the specific name of 
the contingency operation and will specify that the deployment is to a 
foreign country.
    (3) ``Deployment of the member with the Armed Forces to a foreign 
country'' means deployment to areas outside of the United States, the 
District of Columbia, or any Territory or possession of the United 
States, including international waters.
    (4) A call to covered active duty for purposes of leave taken 
because of a qualifying exigency refers to a Federal call to active 
duty. State calls to active duty are not covered unless under order of 
the President of the United States pursuant to one of the provisions of 
law identified in paragraph (a)(2) of this section.
    (5) A ``son or daughter on covered active duty or call to covered 
active duty status'' means the employee's biological, adopted, or 
foster child, stepchild, legal ward, or child for whom the employee 
stood in loco parentis, who is on covered active duty or call to 
covered active duty status, and who is of any age.
    (b) An eligible employee may take FMLA leave for one or more of the 
following qualifying exigencies:
    (1) Short-notice deployment.
    (i) To address any issue that arises from the fact that the 
military member is notified of an impending call or order to covered 
active duty seven or less calendar days prior to the date of 
deployment;
    (ii) Leave taken for this purpose can be used for a period of seven 
calendar days beginning on the date the military member is notified of 
an impending call or order to covered active duty;
    (2) Military events and related activities.
    (i) To attend any official ceremony, program, or event sponsored by 
the military that is related to the covered active duty or call to 
covered active duty status of the military member; and
    (ii) To attend family support or assistance programs and 
informational briefings sponsored or promoted by the military, military 
service organizations, or the American Red Cross that are related to 
the covered active duty or call to covered active duty status of the 
military member;
    (3) Childcare and school activities. For purposes of leave for the 
childcare and school activities listed in paragraphs (b)(3)(i) through 
(iv) of this section, a child of the military member must be the 
military member's biological, adopted, or foster child, stepchild, 
legal ward, or child for whom the military member stands in loco 
parentis, who is either under 18 years of age or 18 years of age or 
older and incapable of self-care because of a mental or physical 
disability at the time that FMLA leave is to commence. As with all 
instances of qualifying exigency leave, the military member must be the 
spouse, son, daughter, or parent of the employee requesting qualifying 
exigency leave.
    (i) To arrange for alternative childcare for a child of the 
military member when the covered active duty or call to covered active 
duty status of the military member necessitates a change in the 
existing childcare arrangement;
    (ii) To provide childcare for a child of the military member on an 
urgent, immediate need basis (but not on a routine, regular, or 
everyday basis) when the need to provide such care arises from the 
covered active duty or call to covered active duty status of the 
military member;
    (iii) To enroll in or transfer to a new school or day care facility 
a child of the military member when enrollment or transfer is 
necessitated by the covered active duty or call to covered active duty 
status of the military member; and
    (iv) To attend meetings with staff at a school or a daycare 
facility, such as meetings with school officials regarding disciplinary 
measures, parent-teacher conferences, or meetings with school 
counselors, for a child of the military member, when such meetings are 
necessary due to circumstances arising from the covered active duty or 
call to covered active duty status of the military member;
    (4) Financial and legal arrangements.
    (i) To make or update financial or legal arrangements to address 
the military member's absence while on covered active duty or call to 
covered active duty status, such as preparing and executing financial 
and healthcare powers of attorney, transferring bank account signature 
authority, enrolling in the Defense Enrollment Eligibility Reporting 
System (DEERS), obtaining military identification cards, or preparing 
or updating a will or living trust; and
    (ii) To act as the military member's representative before a 
Federal, State, or local agency for purposes of obtaining, arranging, 
or appealing military service benefits while the military member is on 
covered active duty or call to covered active duty status, and for a 
period of 90 days following the termination of the military member's 
covered active duty status;
    (5) Counseling. To attend counseling, provided by someone other 
than a health care provider, for oneself, for the military member, or 
for the biological, adopted, or foster child, a stepchild, or a legal 
ward of the military member, or a child for whom the military member 
stands in loco parentis, who is either under age 18, or age 18 or older 
and incapable of self-care because of a mental or physical disability 
at the time that FMLA leave is to commence, provided that the need for 
counseling arises from the covered active duty or call to covered 
active duty status of the military member;
    (6) Rest and Recuperation.
    (i) To spend time with the military member who is on short-term, 
temporary Rest and Recuperation leave during the period of deployment;
    (ii) Eligible employees may take leave for the duration of the Rest 
and Recuperation leave provided to the military member, up to a maximum 
of 15 days for each instance of Rest and Recuperation leave;
    (7) Post-deployment activities.
    (i) To attend arrival ceremonies, reintegration briefings and 
events, and any other official ceremony or program sponsored by the 
military for a period of 90 days following the termination of the 
military member's covered active duty status; and
    (ii) To address issues that arise from the death of the military 
member while on covered active duty status, such as

[[Page 9012]]

meeting and recovering the body of the military member, making funeral 
arrangements, and attending funeral services;
    (8) Additional activities. To address other events which arise out 
of the military member's covered active duty or call to covered active 
duty status provided that the employer and employee agree that such 
leave shall qualify as an exigency, and agree to both the timing and 
duration of such leave.
    9. Amend Sec.  825.127 by:
    a. revising the section heading;
    b. re-designating current paragraphs (b) through (d) as (d) through 
(f) respectively;
    c. adding new paragraph (b)
    d. adding new paragraph (c);
    e. revising the last sentence of newly designated paragraph (d)(3);
    f. removing ``weeks'' and adding in its place ``workweeks'' every 
time it appears in paragraph (e)(3);
    g. revising newly designated paragraph (f)
    h. removing the phrase ``paragraph (c)'' everywhere it appears in 
newly designated paragraph (e) and adding in its place ``paragraph 
(e)'' to read as follows:


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

* * * * *
    (a) Eligible employees are entitled to FMLA leave to care for a 
covered servicemember with a serious illness or injury.
    (b) ``Covered servicemember'' means:
    (1) A current member of the Armed Forces, including a member of the 
National Guard or Reserves, who is undergoing medical treatment, 
recuperation or therapy, is otherwise in outpatient status, or is 
otherwise on the temporary disability retired list, for a serious 
injury or illness. ``Outpatient status'' means the status of a member 
of the Armed Forces assigned to either a military medical treatment 
facility as an outpatient or a unit established for the purpose of 
providing command and control of members of the Armed Forces receiving 
medical care as outpatients.
    (2) A covered veteran who is undergoing medical treatment, 
recuperation or therapy for a serious injury or illness. ``Covered 
veteran'' means an individual who was discharged or released under 
conditions other than dishonorable at any time during the five-year 
period prior to the first date the eligible employee takes FMLA leave 
to care for the covered veteran. An eligible employee must commence 
leave to care for a covered veteran within five years of the veteran's 
active duty service but the ``single 12-month period'' described in 
paragraph (e)(1) of this section may extend beyond the five-year 
period.
    (c) A ``serious injury or illness'':
    (1) In the case of a current member of the Armed Forces, including 
a member of the National Guard or Reserves, means an injury or illness 
that was incurred by the covered servicemember in the line of duty on 
active duty in the Armed Forces or that existed before the beginning of 
the member's active duty and was aggravated by service in the line of 
duty on active duty in the Armed Forces, and that may render the member 
medically unfit to perform the duties of the member's office, grade, 
rank or rating; and,
    (2) In the case of a covered veteran, an injury or illness will be 
a qualifying serious injury or illness if it was incurred by the member 
in the line of duty on active duty in the Armed Forces (or existed 
before the beginning of the member's active duty and was aggravated by 
service in the line of duty on active duty in the Armed Forces) and 
manifested itself before or after the member became a veteran, and is:
    (i) A continuation of a serious injury or illness that was incurred 
or aggravated when the covered veteran was a member of the Armed Forces 
and rendered the servicemember unable to perform the duties of the 
servicemember's office, grade, rank, or rating; or
    (ii) A physical or mental condition for which the covered veteran 
has received a U.S. Department of Veterans Affairs Service Related 
Disability Rating (VASRD) of 50% or higher, and such VASRD rating is 
based, in whole or in part, on the condition precipitating the need for 
military caregiver leave; or
    (iii) A physical or mental condition that substantially impairs the 
covered veteran's ability to secure or follow a substantially gainful 
occupation by reason of a service-connected disability or disabilities, 
or would do so absent treatment.
    (d) * * *
    (3) * * * An employer is permitted to require an employee to 
provide confirmation of covered family relationship to the covered 
servicemember pursuant to Sec.  825.122(k). * * *
    (f) A husband and wife 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.

Subpart B--Employee Leave Entitlements Under the Family and Medical 
Leave Act

    10. Amend Sec.  825.200 as follows:
    a. revising paragraph (a)(5);
    b. revising the citation following the last sentence in paragraph 
(f); and
    c. revising the citation following the last sentence in paragraph 
(g), to read as follows:


Sec.  825.200  Amount of leave.

    (a) * * *
    (5) Because of 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 or call to covered active duty status.
* * * * *
    (f) * * * See Sec.  825.127(e)(1).
    (g) * * * See Sec.  825.127(e)(2).
* * * * *
    11. Amend Sec.  825.202 by revising the second sentence in 
paragraph (b) and revising the first sentence in paragraph (b)(1), to 
read as follows:


Sec.  825.202  Intermittent leave or reduced leave schedule.

* * * * *
    (b) * * * For intermittent leave or leave on a reduced leave 
schedule taken because of one's own serious health condition, to care 
for a spouse, parent, son, or daughter with a serious health condition, 
or to care for a covered servicemember with a serious injury or 
illness, there must be a medical need for leave and it must be that 
such medical need can be best accommodated through an intermittent or 
reduced leave schedule. * * *
    (1) Intermittent leave may be taken for a serious health condition 
of a spouse, parent, son, or daughter, for the employee's own serious 
health condition, or a serious injury or illness of a covered 
servicemember which requires treatment by a health care provider 
periodically, rather than for one continuous period of time, and may 
include leave of periods from an hour or more to several weeks. * * *
* * * * *
    12. Amend Sec.  825.205 by:
    a. revising paragraph (a);
    b. revising paragraph (b)(1);
    c. revising paragraph (c), and

[[Page 9013]]

    d. adding paragraph (d), to read as follows:


Sec.  825.205  Increments of FMLA leave for intermittent or reduced 
schedule leave.

    (a) Minimum increment. (1) When an employee takes FMLA leave on an 
intermittent or reduced leave schedule basis, the employer must account 
for the leave using an increment no greater than the shortest period of 
time that the employer uses to account for use of other forms of leave 
provided that it is not greater than one hour and provided further that 
an employee's FMLA leave entitlement may not be reduced by more than 
the amount of leave actually taken. An employer may not require an 
employee to take more leave than is necessary to address the 
circumstances that precipitated the need for the leave, provided that 
the leave is counted using the shortest increment of leave used to 
account for any other type of leave. (See also Sec.  825.205(a)(2) for 
the physical impossibility exception and Sec. Sec.  825.600 and 825.601 
for special rules applicable to employees of schools.) If an employer 
uses different increments to account for different types of leave, the 
employer must account for FMLA leave in the smallest increment used to 
account for any other type of leave. For example, if an employer 
accounts for the use of annual leave in increments of one hour and the 
use of sick leave in increments of one-half hour, then FMLA leave use 
must be accounted for using increments no larger than one-half hour. If 
an employer accounts for other forms of leave use only in increments 
greater than one hour, the employer must account for FMLA leave use in 
increments no greater than one hour. An employer may account for FMLA 
leave in shorter increments than used for other forms of leave. For 
example, an employer that accounts for other forms of leave in one hour 
increments may account for FMLA leave in a shorter increment when the 
employee arrives at work several minutes late, and the employer wants 
the employee to begin work immediately. Such accounting for FMLA leave 
will not alter the increment considered to be the shortest period used 
to account for other forms of leave or the use of FMLA leave in other 
circumstances. In all cases, employees may not be charged FMLA leave 
for periods during which they are working.
    (2) Where it is physically impossible for an employee using 
intermittent leave or working a reduced leave schedule to commence or 
end work mid-way through a shift, such as where a flight attendant or a 
railroad conductor is scheduled to work aboard an airplane or train, or 
a laboratory employee is unable to enter or leave a sealed ``clean 
room'' during a certain period of time and no equivalent position is 
available, the entire period that the employee is forced to be absent 
is designated as FMLA leave and counts against the employee's FMLA 
entitlement. The period of the physical impossibility is limited to the 
period during which the employer is unable to permit the employee to 
work at the same or an equivalent position prior to a period of FMLA 
leave or return the employee to the same or equivalent position due to 
the physical impossibility after a period of FMLA leave. See Sec.  
825.214.
    (b) Calculation of leave. (1) When an employee takes leave on an 
intermittent or reduced leave schedule, only the amount of leave 
actually taken may be counted toward the employee's leave entitlement. 
The actual workweek is the basis of leave entitlement. Therefore, if an 
employee who would otherwise work 40 hours a week takes off 8 hours, 
the employee would use one-fifth (\1/5\) of a week of FMLA leave. 
Similarly, if a full-time employee who would otherwise work 8-hour days 
works 4-hour days under a reduced leave schedule, the employee would 
use one-half (\1/2\) week of FMLA leave. When an employee works a part-
time schedule or variable hours, the amount of FMLA leave that an 
employee uses is determined on a pro rata or proportional basis If an 
employee who would otherwise work 30 hours per week works only 20 hours 
a week under a reduced leave schedule, the employee's ten hours of 
leave would constitute one-third (\1/3\) of a week of FMLA leave for 
each week the employee works the reduced leave schedule. An employer 
may convert these fractions to their hourly equivalent so long as the 
conversion equitably reflects the employee's total normally scheduled 
hours. An employee does not accrue FMLA-protected leave at any 
particular hourly rate. An eligible employee is entitled to up to a 
total of 12 workweeks of leave, or 26 workweeks in the case of military 
caregiver leave, and the total number of hours contained in those 
workweeks is necessarily dependent on the specific hours the employee 
would have worked but for the FMLA leave.
* * * * *
    (c) Overtime. If an employee would normally be required to work 
overtime, but is unable to do so because of an FMLA-qualifying reason 
that limits the employee's ability to work overtime, the hours which 
the employee would have been required to work may be counted against 
the employee's FMLA entitlement. In such a case, the employee is using 
intermittent or reduced schedule leave. For example, if an employee 
would normally be required to work for 48 hours in a particular week, 
but due to a serious health condition the employee is unable to work 
more than 40 hours that week, the employee would utilize eight hours of 
FMLA-protected leave out of the 48-hour workweek, or one-sixth (\1/6\) 
of a week of FMLA leave. Voluntary overtime hours that an employee does 
not work due to an FMLA-qualifying reason may not be counted against 
the employee's FMLA leave entitlement.
    (d) Calculation of leave for airline flight crew employees. (1) For 
flight crew employees who are ``line holders,'' the employee's 
scheduled workweek, which is the total scheduled duty hours for that 
workweek, is the basis for calculating the employee's FMLA leave. The 
amount of FMLA leave is determined on a pro rata or proportional basis 
according to principles established in paragraph (b) of this section. 
For example, if a line holder needed to take four hours of leave during 
a workweek in which the employee was scheduled to work 20 hours, the 
FMLA leave used would be one-fifth (\1/5\) of a workweek.
    (2) For an airline flight crew employee on reserve status, an 
average of the greater of the applicable monthly guarantee or actual 
duty hours worked in each of the prior 12 months would be used for 
calculating the employee's average workweek. The workweek determination 
must be completed at the employee's first instance of leave and is 
valid for the remainder of the FMLA leave year. The amount of FMLA 
leave is determined on a pro rata or proportional basis according to 
principles established in paragraph (b) of this section. For example, 
if it was determined that a reserve status employee had a workweek of 
20 hours after averaging the greater of the employee's monthly 
guarantee or actual duty hours over the past 12 months, the employee 
would be entitled to 12 20-hour workweeks for FMLA leave. If the 
employee needed four hours of FMLA leave in one workweek, the employee 
would have used one-fifth (\1/5\) of a workweek.
    13. Amend Sec.  825.213(a) by revising the fifth sentence in 
paragraph (a)(3) to read as follows:


Sec.  825.213  Employer recovery of benefit costs.

    (a) * * *
    (3) * * * For purposes of medical certification, the employee may 
use the optional DOL forms developed for these

[[Page 9014]]

purposes (see Sec. Sec.  825.306(b), 825.310(c)-(d)). * * *
* * * * *

Subpart C--Employee and Employer Rights and Obligations Under the 
Act

    14. Amend Sec.  825.300 by:
    a. Removing ``www.wagehour.dol.gov'' and adding in its place 
``www.dol.gov/whd'' whenever it appears in this section.
    b. revising the first sentence of paragraph (a)(4);
    c. revising paragraph (b)(2);
    d. revising paragraph (c)(1)(ii);
    e. revising the first sentence of paragraph (c)(6); and
    f. revising the second sentence of paragraph (d)(4) to read as 
follows:


Sec.  825.300  Employer notice requirements.

    (a) * * *
    (4) To meet the requirements of paragraph (a)(3) of this section, 
employers may duplicate the text of the Department's prototype notice 
(WHD Publication 1420) or may use another format so long as the 
information provided includes, at a minimum, all of the information 
contained in that notice. * * *
    (b) * * *
    (2) The eligibility notice must state whether the employee is 
eligible for FMLA leave as defined in Sec.  825.110. If the employee is 
not eligible for FMLA leave, the notice must state at least one reason 
why the employee is not eligible, including as applicable the number of 
months the employee has been employed by the employer, the number of 
hours of service with the employer during the 12-month period, and 
whether the employee is employed at a worksite where 50 or more 
employees are employed by the employer within 75 miles of that 
worksite. Notification of eligibility may be oral or in writing; 
employers may use optional Form WH-381 (Notice of Eligibility and 
Rights and Responsibility) to provide such notification to employees. 
Prototypes are available from the nearest office of the Wage and Hour 
Division or on the Internet at www.dol.gov/whd. The employer is 
obligated to translate this notice in any situation in which it is 
obligated to do so in Sec.  825.300(a)(4).
* * * * *
    (c) * * *
    (1) * * *
    (ii) Any requirements for the employee to furnish certification of 
a serious health condition, serious injury or illness, or qualifying 
exigency arising out of covered active duty or call to covered active 
duty status, and the consequences of failing to do so (see Sec. Sec.  
825.305, 825.309, 825.310, 825.313);
    * * *
    (6) A prototype notice of rights and responsibilities may be 
obtained from local offices of the Wage and Hour Division or from the 
Internet at www. dol.gov/whd. * * *
* * * * *
    (d) * * *
    (4) * * * A prototype designation notice may be obtained from local 
offices of the Wage and Hour Division or from the Internet at 
www.dol.gov/whd. * * *
* * * * *
    15. Amend Sec.  825.302 by:
    a. removing ``active duty'' and adding in its place ``covered 
active duty'' whenever it appears in paragraph (c); and
    b. revising the citation in the second sentence of paragraph (c), 
to read as follows:


Sec.  825.302  Employee notice requirements for foreseeable FMLA leave.

    (a) * * *
    (c) * * * Depending on the situation, such information may include 
that a condition renders the employee unable to perform the functions 
of the job; that the employee is pregnant or has been hospitalized 
overnight; whether the employee or the employee's family member is 
under the continuing care of a health care provider; if the leave is 
due to a qualifying exigency, that a military member is on covered 
active duty or call to covered active duty status, and that the 
requested leave is for one of the reasons listed in Sec.  825.126(b); 
if the leave is for a family member, that the condition renders the 
family member unable to perform daily activities, or that the family 
member is a covered servicemember with a serious injury or illness; and 
the anticipated duration of the absence, if known. * * *
* * * * *
    16. Amend Sec.  825.303 by:
    a. removing ``active duty'' and adding in its place ``covered 
active duty'' every time it appears in paragraph (b);
    b. revising the citation in the second sentence from 825.126(a) to 
825.126(b) in paragraph (b) to read as follows:


Sec.  825.303  Employee notice requirements for unforeseeable FMLA 
leave.

* * * * *
    (b) * * * Depending on the situation, such information may include 
that a condition renders the employee unable to perform the functions 
of the job; that the employee is pregnant or has been hospitalized 
overnight; whether the employee or the employee's family member is 
under the continuing care of a health care provider; if the leave is 
due to a qualifying exigency, that a military member is on covered 
active duty or call to covered active duty status, that the requested 
leave is for one of the reasons listed in Sec.  825.126(b), and the 
anticipated duration of the absence; or if the leave is for a family 
member that the condition renders the family member unable to perform 
daily activities or that the family member is a covered servicemember 
with a serious injury or illness; and the anticipated duration of the 
absence, if known. * * *
* * * * *
    17. Amend Sec.  825.306 by revising paragraph (b) to read as 
follows:


Sec.  825.306  Content of medical certification for leave taken because 
of an employee's own serious health condition or the serious health 
condition of a family member.

* * * * *
    (b) DOL has developed two optional forms (Form WH-380E and Form WH-
380F, as revised) for use in obtaining medical certification, including 
second and third opinions, from health care providers that meets FMLA's 
certification requirements. Optional form WH-380E is for use when the 
employee's need for leave is due to the employee's own serious health 
condition. Optional form WH-380F is for use when the employee needs 
leave to care for a family member with a serious health condition. 
These optional forms reflect certification requirements so as to permit 
the health care provider to furnish appropriate medical information. 
Form WH-380E and WH-380F, as revised, or another form containing the 
same basic information, may be used by the employer; however, no 
information may be required beyond that specified in Sec. Sec.  
825.306, 825.307, and 825.308. In all instances the information on the 
form must relate only to the serious health condition for which the 
current need for leave exists. Prototype forms WH-380E and WH-380F may 
be obtained from local offices of the Wage and Hour Division or from 
the Internet at www.dol.gov/whd.
* * * * *
    18. Amend Sec.  825.309 by:
    a. removing ``active duty'' and adding in its place ``covered 
active duty'' every time it appears in this section;
    b. revising paragraph (a);
    c. revising paragraphs (b)(4) and (b)(5);
    d. adding paragraph (b)(6);
    e. removing the parenthetical at the end of the first sentence in 
paragraph (c); and
    f. revising the first and second sentences in paragraph (c).

[[Page 9015]]

    The additions and revisions read as follows:


Sec.  825.309  Certification for leave taken because of a qualifying 
exigency.

    (a) Active Duty Orders. The first time an employee requests leave 
because of a qualifying exigency arising out of the covered active duty 
or call to covered active duty status of a military member (as defined 
in Sec.  825.126(a)(1)-(2)), an employer may require the employee to 
provide a copy of the military member's active duty orders or other 
documentation issued by the military which indicates that the military 
member is on covered active duty or call to covered active duty status, 
and the dates of the military member's covered active duty service. 
This information need only be provided to the employer once. A copy of 
new active duty orders or other documentation issued by the military 
may be required by the employer if the need for leave because of a 
qualifying exigency arises out of a different covered active duty or 
call to covered active duty status of the same or a different military 
member.
    (b) * * *
    (4) If an employee requests leave because of a qualifying exigency 
on an intermittent or reduced schedule basis, an estimate of the 
frequency and duration of the qualifying exigency;
    (5) If the qualifying exigency involves meeting with a third party, 
appropriate contact information for the individual or entity with whom 
the employee is meeting (such as the name, title, organization, 
address, telephone number, fax number, and email address) and a brief 
description of the purpose of the meeting; and
    (6) If the qualifying exigency involves Rest and Recuperation 
leave, a copy of the military member's Rest and Recuperation orders, or 
other documentation issued by the military which indicates that the 
military member has been granted Rest and Recuperation leave, and the 
dates of the military member's Rest and Recuperation leave.
    (c) DOL has developed an optional form (Form WH-384) for employees' 
use in obtaining a certification that meets FMLA's certification 
requirements. Form WH-384 may be obtained from local offices of the 
Wage and Hour Division or from the Internet at www.dol.gov/whd. * * *
* * * * *
    19. Amend Sec.  825.310 by:
    a. adding paragraph (a)(5);
    b. revising the first sentence of paragraph (b);
    c. adding paragraph (b)(1)(v);
    d. revising paragraph (b)(2);
    e revising paragraph (b)(4);
    f. re-designating current paragraph (c)(6) as (c)(7);
    g. adding new paragraph (c)(6);
    h. revising paragraph (d);
    i. revising the citation in paragraph (e)(3) from Sec.  825.122(j) 
to Sec.  825.122(k);
    j. revising paragraph (f) to read as follows:


Sec.  825.310  Certification for leave taken to care for a covered 
servicemember (military caregiver leave).

    (a) * * *
    (5) Any health care provider as defined in Sec.  825.125.
    (b) If the authorized health care provider is unable to make 
certain military-related determinations outlined below, the authorized 
health care provider may rely on determinations from an authorized DOD 
representative (such as a DOD recovery care coordinator) or an 
authorized VA representative. * * *
    (1) * * *
    (v) A health care provider as defined in Sec.  825.125.
    (2) Whether the covered servicemember's injury or illness was 
incurred in the line of duty on active duty or, if not, whether the 
covered servicemember's injury or illness existed before the beginning 
of the servicemember's active duty and was aggravated by service in the 
line of duty on active duty;
* * * * *
    (4) A statement or description of appropriate medical facts 
regarding the covered servicemember's health condition for which FMLA 
leave is requested. The medical facts must be sufficient to support the 
need for leave.
    (i) In the case of a current member of the Armed Forces, such 
medical facts must include information on whether the injury or illness 
may render the covered servicemember medically unfit to perform the 
duties of the servicemember's office, grade, rank, or rating and 
whether the member is receiving medical treatment, recuperation, or 
therapy;
    (ii) In the case of a covered veteran, such medical facts must 
include information on whether the veteran is receiving medical 
treatment, recuperation, or therapy for an injury or illness that is:
    (A) The continuation of an injury or illness that was incurred or 
aggravated when the covered veteran was a member of the Armed Forces 
and rendered the servicemember medically unfit to perform the duties of 
the servicemember's office, grade, rank, or rating; or
    (B) A physical or mental condition for which the covered veteran 
has received a U.S. Department of Veterans Affairs Service Related 
Disability Rating (VASRD) of 50% or higher, and that such VASRD rating 
is based, in whole or in part, on the condition precipitating the need 
for military caregiver leave;
    (C) A physical or mental condition that substantially impairs the 
covered veteran's ability to secure or follow a substantially gainful 
occupation by reason of a service-connected disability or disabilities, 
or would do so absent treatment.
* * * * *
    (c) * * *
    (6) Whether the covered servicemember is a veteran, the date of 
separation from military service, and whether the separation was other 
than dishonorable. The employer may require the employee to provide 
documentation issued by the military which indicates that the covered 
servicemember is a veteran, the date of separation, and that the 
separation is other than dishonorable. Where an employer requires such 
documentation, an employee may provide a copy of the veteran's 
Certificate of Release or Discharge from Active Duty issued by the U.S. 
Department of Defense (DD Form 214) or other proof of veteran status.
* * * * *
    (d) DOL has developed an optional form (WH-385) for employees' use 
in obtaining certification that meets FMLA's certification 
requirements, which may be obtained from local offices of the Wage and 
Hour Division or on the Internet at www.dol.gov/whd. This optional form 
reflects certification requirements so as to permit the employee to 
furnish appropriate information to support his or her request for leave 
to care for a covered servicemember with a serious injury or illness. 
WH-385, or another form containing the same basic information, may be 
used by the employer; however, no information may be required beyond 
that specified in this section. In all instances the information on the 
certification must relate only to the serious injury or illness for 
which the current need for leave exists. An employer may seek 
authentication and/or clarification of the certification under Sec.  
825.307. Second and third opinions under Sec.  825.307 are not 
permitted for leave to care for a covered servicemember when the 
certification has been completed by one of the types of health care 
providers identified in Sec.  825.310(a)(1)-(4). However, second and 
third opinions under Sec.  825.307 are permitted when the certification 
has been completed by a health care

[[Page 9016]]

provider as defined in Sec.  825.125 that is not one of the types 
identified in Sec.  825.310(a)(1)-(4). Additionally, recertifications 
under Sec.  825.308 are not permitted for leave to care for a covered 
servicemember. An employer may require an employee to provide 
confirmation of covered family relationship to the seriously injured or 
ill servicemember pursuant to Sec.  825.122(k) of the FMLA.
    (e) * * *
    (3) An employer may require an employee to provide confirmation of 
covered family relationship to the seriously injured or ill 
servicemember pursuant to Sec.  825.122(k) when an employee supports 
his or her request for FMLA leave with a copy of an ITO or ITA.
    (f) Where medical certification is requested by an employer, an 
employee may not be held liable for administrative delays in the 
issuance of military documents, despite the employee's diligent, good-
faith efforts to obtain such documents. See Sec.  825.305(b). In all 
instances in which certification is requested, it is the employee's 
responsibility to provide the employer with complete and sufficient 
certification and failure to do so may result in the denial of FMLA 
leave. See Sec.  825.305(d).

Subpart E--Record-keeping Requirements

    20. Amend Sec.  825.500 by:
    a. revising paragraph (g) introductory text; and
    b. adding new paragraph (h), to read as follows:


Sec.  825.500  Record-keeping requirements.

* * * * *
    (g) Records and documents relating to certifications, 
recertifications or medical histories of employees or employees' family 
members, created for purposes of FMLA, shall be maintained as 
confidential medical records in separate files/records from the usual 
personnel files. If the Genetic Information Nondiscrimination Act of 
2008 (GINA) is applicable, records and documents created for purposes 
of FMLA containing ``family medical history'' or ``genetic 
information'' as defined in GINA shall be maintained in accordance with 
the confidentiality requirements of Title II of GINA (see 29 CFR 
1635.9), which permit such information to be disclosed consistent with 
the requirements of FMLA. If the ADA, as amended, is also applicable, 
such records shall be maintained in conformance with ADA 
confidentiality requirements (see 29 CFR 1630.14(c)(1)), except that:
* * * * *
    (h) Covered employers who employ eligible airline flight crew 
employees are required to maintain certain records ``on file with the 
Secretary.'' To comply with this requirement, such employers shall 
make, keep, and preserve records in accordance with the requirements of 
this section, and additional records as follows:
    (1) Records and documents containing information specifying the 
applicable monthly guarantee with respect to each category of employee 
to whom such guarantee applies, including copies of any relevant 
collective bargaining agreements or employer policy documents; and
    (2) A record of hours scheduled for airline flight crew employees 
on non-reserve status.
    21. Redesignate Sec.  825.800 as Sec.  825.102, and revise newly 
designated Sec.  825.102 to read as follows:


Sec.  825.102  Definitions.

    For purposes of this part:
    Act or FMLA means the Family and Medical Leave Act of 1993, Public 
Law 103-3 (February 5, 1993), 107 Stat. 6 (29 U.S.C. 2601 et seq., as 
amended).
    ADA means the Americans with Disabilities Act (42 U.S.C. 12101 et 
seq., as amended).
    Administrator means the Administrator of the Wage and Hour 
Division, U.S. Department of Labor, and includes any official of the 
Wage and Hour Division authorized to perform any of the functions of 
the Administrator under this part.
    Airline flight crew employee means an airline flight crewmember or 
flight attendant as those terms are defined in regulations of the 
Federal Aviation Administration. See also Sec.  825.110(c)(2).
    Applicable monthly guarantee, means:
    (1) For the individual airline flight crew employee who is not on 
reserve status (line holder), the minimum number of hours for which an 
employer has agreed to schedule such employee for any given month; and
    (2) For an airline flight crew employee who is on reserve status, 
the number of hours for which an employer has agreed to pay the 
employee for any given month. See also Sec.  825.110(c)(2).
    COBRA means the continuation coverage requirements of Title X of 
the Consolidated Omnibus Budget Reconciliation Act of 1986, as amended 
(Public Law 99-272, title X, section 10002; 100 Stat 227; 29 U.S.C. 
1161-1168).
    Commerce and industry or activity affecting commerce mean any 
activity, business, or industry in commerce or in which a labor dispute 
would hinder or obstruct commerce or the free flow of commerce, and 
include ``commerce'' and any ``industry affecting commerce'' as defined 
in sections 501(1) and 501(3) of the Labor Management Relations Act of 
1947, 29 U.S.C. 142(1) and (3).
    Contingency operation means a military operation that:
    (1) Is designated by the Secretary of Defense as an operation in 
which members of the armed forces are or may become involved in 
military actions, operations, or hostilities against an enemy of the 
United States or against an opposing military force; or
    (2) Results in the call or order to, or retention on, active duty 
of members of the uniformed services under section 688, 12301(a), 
12302, 12304, 12305, or 12406 of Title 10 of the United States Code, 
chapter 15 of Title 10 of the United States Code, or any other 
provision of law during a war or during a national emergency declared 
by the President or Congress. See also Sec.  825.126(a)(2).
    Continuing treatment by a health care provider means any one of the 
following:
    (1) Incapacity and treatment. A period of incapacity of more than 
three consecutive, full calendar days, and any subsequent treatment or 
period of incapacity relating to the same condition, that also 
involves:
    (i) Treatment two or more times, within 30 days of the first day of 
incapacity, unless extenuating circumstances exist, by a health care 
provider, by a nurse under direct supervision of a health care 
provider, or by a provider of health care services (e.g., physical 
therapist) under orders of, or on referral by, a health care provider; 
or
    (ii) Treatment by a health care provider on at least one occasion, 
which results in a regimen of continuing treatment under the 
supervision of the health care provider.
    (iii) The requirement in paragraphs (1)(i) and (ii) of this 
definition for treatment by a health care provider means an in-person 
visit to a health care provider. The first in-person treatment visit 
must take place within seven days of the first day of incapacity.
    (iv) Whether additional treatment visits or a regimen of continuing 
treatment is necessary within the 30-day period shall be determined by 
the health care provider.
    (v) The term ``extenuating circumstances'' in paragraph (1)(i) 
means circumstances beyond the

[[Page 9017]]

employee's control that prevent the follow-up visit from occurring as 
planned by the health care provider. Whether a given set of 
circumstances are extenuating depends on the facts. See also Sec.  
825.115(a)(5).
    (2) Pregnancy or prenatal care. Any period of incapacity due to 
pregnancy, or for prenatal care. See also Sec.  825.120.
    (3) Chronic conditions. Any period of incapacity or treatment for 
such incapacity due to a chronic serious health condition. A chronic 
serious health condition is one which:
    (i) Requires periodic visits (defined as at least twice a year) for 
treatment by a health care provider, or by a nurse under direct 
supervision of a health care provider;
    (ii) Continues over an extended period of time (including recurring 
episodes of a single underlying condition); and
    (iii) May cause episodic rather than a continuing period of 
incapacity (e.g., asthma, diabetes, epilepsy, etc.).
    (4) Permanent or long-term conditions. A period of incapacity which 
is permanent or long-term due to a condition for which treatment may 
not be effective. The employee or family member must be under the 
continuing supervision of, but need not be receiving active treatment 
by, a health care provider. Examples include Alzheimer's, a severe 
stroke, or the terminal stages of a disease.
    (5) Conditions requiring multiple treatments. Any period of absence 
to receive multiple treatments (including any period of recovery 
therefrom) by a health care provider or by a provider of health care 
services under orders of, or on referral by, a health care provider, 
for:
    (i) Restorative surgery after an accident or other injury; or
    (ii) A condition that would likely result in a period of incapacity 
of more than three consecutive full calendar days in the absence of 
medical intervention or treatment, such as cancer (chemotherapy, 
radiation, etc.), severe arthritis (physical therapy), kidney disease 
(dialysis).
    (6) Absences attributable to incapacity under paragraphs (2) or (3) 
of this definition qualify for FMLA leave even though the employee or 
the covered family member does not receive treatment from a health care 
provider during the absence, and even if the absence does not last more 
than three consecutive full calendar days. For example, an employee 
with asthma may be unable to report for work due to the onset of an 
asthma attack or because the employee's health care provider has 
advised the employee to stay home when the pollen count exceeds a 
certain level. An employee who is pregnant may be unable to report to 
work because of severe morning sickness.
    Covered active duty or call to covered active duty status means:
    (1) In the case of a member of the Regular Armed Forces, duty under 
a call or order to active duty (or notification of an impending call or 
order to covered active duty) during the deployment of the member with 
the Armed Forces to a foreign country; and,
    (2) In the case of a member of the reserve components of the Armed 
Forces, duty under a call or order to active duty (or notification of 
an impending call or order to active duty) during the deployment of the 
member with the Armed Forces to a foreign country under a Federal call 
or order to active duty under a provision of law referred to in section 
101(a)(13)(B) of Title 10, United States Code. See also Sec.  
825.126(a).
    Covered servicemember means:
    (1) A current member of the Armed Forces, including a member of the 
National Guard or Reserves, who is undergoing medical treatment, 
recuperation, or therapy, is otherwise in outpatient status, or is 
otherwise on the temporary disability retired list, for a serious 
injury or illness, or
    (2) A covered veteran who is undergoing medical treatment, 
recuperation, or therapy for a serious injury or illness.
    Covered veteran means an individual who was discharged or released 
under conditions other than dishonorable at any time during the five-
year period prior to the first date the eligible employee takes FMLA 
leave to care for the covered veteran.
    Eligible employee means:
    (1) An employee who has been employed for a total of at least 12 
months by the employer on the date on which any FMLA leave is to 
commence, except that an employer need not consider any period of 
previous employment that occurred more than seven years before the date 
of the most recent hiring of the employee, unless:
    (i) The break in service is occasioned by the fulfillment of the 
employee's National Guard or Reserve military service obligation (the 
time served performing the military service must be also counted in 
determining whether the employee has been employed for at least 12 
months by the employer, but this section does not provide any greater 
entitlement to the employee than would be available under the Uniformed 
Services Employment and Reemployment Rights Act (USERRA)); or
    (ii) A written agreement, including a collective bargaining 
agreement, exists concerning the employer's intention to rehire the 
employee after the break in service (e.g., for purposes of the employee 
furthering his or her education or for childrearing purposes); and
    (2) Who, on the date on which any FMLA leave is to commence, has 
been employed for at least 1,250 hours of service with such employer 
during the previous 12-month period, except that:
    (i) An employee returning from fulfilling his or her National Guard 
or Reserve military obligation shall be credited with the hours-of-
service that would have been performed but for the period of military 
service in determining whether the employee worked the 1,250 hours of 
service (accordingly, a person reemployed following military service 
has the hours that would have been worked for the employer added to any 
hours actually worked during the previous 12-month period to meet the 
1,250 hour requirement);
    (ii) To determine the hours that would have been worked during the 
period of military service, the employee's pre-service work schedule 
can generally be used for calculations;
    (iii) An airline flight crew employee will be considered to meet 
the hours of service requirement if in the previous 12 months the 
employee has worked or been paid for not less than 60 percent of the 
applicable total monthly guarantee and has worked or been paid for not 
less than 504 hours (not counting personal commute time, or vacation, 
medical or sick leave). See 825.110(c)(2)-(3).
    (3) Who is employed in any State of the United States, the District 
of Columbia or any Territories or possession of the United States.
    (4) Excludes any Federal officer or employee covered under 
subchapter V of chapter 63 of title 5, United States Code.
    (5) Excludes any employee of the United States House of 
Representatives or the United States Senate covered by the 
Congressional Accountability Act of 1995, 2 U.S.C. 1301.
    (6) Excludes any employee who is employed at a worksite at which 
the employer employs fewer than 50 employees if the total number of 
employees employed by that employer within 75 miles of that worksite is 
also fewer than 50.
    (7) Excludes any employee employed in any country other than the 
United States or any Territory or possession of the United States.

[[Page 9018]]

    Employ means to suffer or permit to work.
    Employee has the meaning given the same term as defined in section 
3(e) of the Fair Labor Standards Act, 29 U.S.C. 203(e), as follows:
    (1) The term ``employee'' means any individual employed by an 
employer;
    (2) In the case of an individual employed by a public agency, 
``employee'' means--
    (i) Any individual employed by the Government of the United 
States--
    (A) As a civilian in the military departments (as defined in 
section 102 of Title 5, United States Code),
    (B) In any executive agency (as defined in section 105 of Title 5, 
United States Code), excluding any Federal officer or employee covered 
under subchapter V of chapter 63 of Title 5, United States Code,
    (C) In any unit of the legislative or judicial branch of the 
Government which has positions in the competitive service, excluding 
any employee of the United States House of Representatives or the 
United States Senate who is covered by the Congressional Accountability 
Act of 1995,
    (D) In a nonappropriated fund instrumentality under the 
jurisdiction of the Armed Forces, or
    (ii) Any individual employed by the United States Postal Service or 
the Postal Regulatory Commission; and
    (iii) Any individual employed by a State, political subdivision of 
a State, or an interstate governmental agency, other than such an 
individual--
    (A) Who is not subject to the civil service laws of the State, 
political subdivision, or agency which employs the employee; and
    (B) Who--
    (1) Holds a public elective office of that State, political 
subdivision, or agency,
    (2) Is selected by the holder of such an office to be a member of 
his personal staff,
    (3) Is appointed by such an officeholder to serve on a policymaking 
level,
    (4) Is an immediate adviser to such an officeholder with respect to 
the constitutional or legal powers of the office of such officeholder, 
or
    (5) Is an employee in the legislative branch or legislative body of 
that State, political subdivision, or agency and is not employed by the 
legislative library of such State, political subdivision, or agency.
    Employee employed in an instructional capacity. See the definition 
of Teacher in this section.
    Employer means any person engaged in commerce or in an industry or 
activity affecting commerce who employs 50 or more employees for each 
working day during each of 20 or more calendar workweeks in the current 
or preceding calendar year, and includes--
    (1) Any person who acts, directly or indirectly, in the interest of 
an employer to any of the employees of such employer;
    (2) Any successor in interest of an employer; and
    (3) Any public agency.
    Employment benefits means all benefits provided or made available 
to employees by an employer, including group life insurance, health 
insurance, disability insurance, sick leave, annual leave, educational 
benefits, and pensions, regardless of whether such benefits are 
provided by a practice or written policy of an employer or through an 
``employee benefit plan'' as defined in section 3(3) of the Employee 
Retirement Income Security Act of 1974, 29 U.S.C. 1002(3). The term 
does not include non-employment related obligations paid by employees 
through voluntary deductions such as supplemental insurance coverage. 
(See Sec.  825.209(a).)
    FLSA means the Fair Labor Standards Act (29 U.S.C. 201 et seq.).
    Group health plan means any plan of, or contributed to by, an 
employer (including a self-insured plan) to provide health care 
(directly or otherwise) to the employer's employees, former employees, 
or the families of such employees or former employees. For purposes of 
FMLA the term ``group health plan'' shall not include an insurance 
program providing health coverage under which employees purchase 
individual policies from insurers provided that:
    (1) No contributions are made by the employer;
    (2) Participation in the program is completely voluntary for 
employees;
    (3) The sole functions of the employer with respect to the program 
are, without endorsing the program, to permit the insurer to publicize 
the program to employees, to collect premiums through payroll 
deductions and to remit them to the insurer;
    (4) The employer receives no consideration in the form of cash or 
otherwise in connection with the program, other than reasonable 
compensation, excluding any profit, for administrative services 
actually rendered in connection with payroll deduction; and
    (5) The premium charged with respect to such coverage does not 
increase in the event the employment relationship terminates.
    Health care provider means:
    (1) The Act defines ``health care provider'' as:
    (i) A doctor of medicine or osteopathy who is authorized to 
practice medicine or surgery (as appropriate) by the State in which the 
doctor practices; or
    (ii) Any other person determined by the Secretary to be capable of 
providing health care services.
    (2) Others ``capable of providing health care services'' include 
only:
    (i) Podiatrists, dentists, clinical psychologists, optometrists, 
and chiropractors (limited to treatment consisting of manual 
manipulation of the spine to correct a subluxation as demonstrated by 
X-ray to exist) authorized to practice in the State and performing 
within the scope of their practice as defined under State law;
    (ii) Nurse practitioners, nurse-midwives, clinical social workers 
and physician assistants who are authorized to practice under State law 
and who are performing within the scope of their practice as defined 
under State law;
    (iii) Christian Science Practitioners listed with the First Church 
of Christ, Scientist in Boston, Massachusetts. Where an employee or 
family member is receiving treatment from a Christian Science 
practitioner, an employee may not object to any requirement from an 
employer that the employee or family member submit to examination 
(though not treatment) to obtain a second or third certification from a 
health care provider other than a Christian Science practitioner except 
as otherwise provided under applicable State or local law or collective 
bargaining agreement.
    (iv) Any health care provider from whom an employer or the 
employer's group health plan's benefits manager will accept 
certification of the existence of a serious health condition to 
substantiate a claim for benefits; and
    (v) A health care provider listed above who practices in a country 
other than the United States, who is authorized to practice in 
accordance with the law of that country, and who is performing within 
the scope of his or her practice as defined under such law.
    (3) The phrase ``authorized to practice in the State'' as used in 
this section means that the provider must be authorized to diagnose and 
treat physical or mental health conditions.
    Incapable of self-care means that the individual requires active 
assistance or supervision to provide daily self-care in several of the 
``activities of daily living'' (ADLs) or ``instrumental activities of 
daily living'' (IADLs). Activities of daily living include adaptive 
activities such as caring appropriately for one's grooming and hygiene, 
bathing, dressing and eating. Instrumental activities of

[[Page 9019]]

daily living include cooking, cleaning, shopping, taking public 
transportation, paying bills, maintaining a residence, using telephones 
and directories, using a post office, etc.
    Instructional employee: See the definition of Teacher in this 
section.
    Intermittent leave means leave taken in separate periods of time 
due to a single illness or injury, rather than for one continuous 
period of time, and may include leave of periods from an hour or more 
to several weeks. Examples of intermittent leave would include leave 
taken on an occasional basis for medical appointments, or leave taken 
several days at a time spread over a period of six months, such as for 
chemotherapy.
    ITO or ITA, invitational travel order (ITO) or invitational travel 
authorization (ITA), are orders issued by the Armed Forces to a family 
member to join an injured or ill servicemember at his or her bedside. 
See also Sec.  825.310(e).
    Key employee means a salaried FMLA-eligible employee who is among 
the highest paid 10 percent of all the employees employed by the 
employer within 75 miles of the employee's worksite. See also Sec.  
825.217.
    Mental disability: See the definition of Physical or mental 
disability in this section.
    Military caregiver leave means leave taken to care for a covered 
servicemember with a serious injury or illness under the Family and 
Medical Leave Act of 1993. (See Sec.  825.127.)
    Next of kin of a covered servicemember means the nearest blood 
relative other than the covered servicemember's spouse, parent, son, or 
daughter, in the following order of priority: blood relatives who have 
been granted legal custody of the covered servicemember by court decree 
or statutory provisions, brothers and sisters, grandparents, aunts and 
uncles, and first cousins, unless the covered servicemember has 
specifically designated in writing another blood relative as his or her 
nearest blood relative for purposes of military caregiver leave under 
the FMLA. When no such designation is made, and there are multiple 
family members with the same level of relationship to the covered 
servicemember, all such family members shall be considered the covered 
servicemember's next of kin and may take FMLA leave to provide care to 
the covered servicemember, either consecutively or simultaneously. When 
such designation has been made, the designated individual shall be 
deemed to be the covered servicemember's only next of kin. See also 
Sec.  825.127(g)(3).
    Outpatient status means, with respect to a covered servicemember 
who is a current member of the Armed Forces, the status of a member of 
the Armed Forces assigned to either a military medical treatment 
facility as an outpatient; or a unit established for the purpose of 
providing command and control of members of the Armed Forces receiving 
medical care as outpatients. See also Sec.  825.127(e).
    Parent means a biological, adoptive, step or foster father or 
mother, or any other individual who stood in loco parentis to the 
employee when the employee was a son or daughter as defined below. This 
term does not include parents ``in law.''
    Parent of a covered servicemember means a covered servicemember's 
biological, adoptive, step or foster father or mother, or any other 
individual who stood in loco parentis to the covered servicemember. 
This term does not include parents ``in law.'' See also Sec.  
825.127(g)(2).
    Person means an individual, partnership, association, corporation, 
business trust, legal representative, or any organized group of 
persons, and includes a public agency for purposes of this part.
    Physical or mental disability means a physical or mental impairment 
that substantially limits one or more of the major life activities of 
an individual. Regulations at 29 CFR part 1630, issued by the Equal 
Employment Opportunity Commission under the Americans with Disabilities 
Act (ADA), 42 U.S.C. 12101 et seq., as amended, define these terms.
    Public agency means the government of the United States; the 
government of a State or political subdivision thereof; any agency of 
the United States (including the United States Postal Service and 
Postal Regulatory Commission), a State, or a political subdivision of a 
State, or any interstate governmental agency. Under section 101(5)(B) 
of the Act, a public agency is considered to be a ``person'' engaged in 
commerce or in an industry or activity affecting commerce within the 
meaning of the Act.
    Reserve components of the Armed Forces, for purposes of qualifying 
exigency leave, include the Army National Guard of the United States, 
Army Reserve, Navy Reserve, Marine Corps Reserve, Air National Guard of 
the United States, Air Force Reserve, and Coast Guard Reserve, and 
retired members of the Regular Armed Forces or Reserves who are called 
up in support of a contingency operation. See also Sec.  
825.126(a)(2)(ii).
    Reduced leave schedule means a leave schedule that reduces the 
usual number of hours per workweek, or hours per workday, of an 
employee.
    Secretary means the Secretary of Labor or authorized 
representative.
    Serious health condition means an illness, injury, impairment or 
physical or mental condition that involves inpatient care as defined in 
Sec.  825.114 or continuing treatment by a health care provider as 
defined in Sec.  825.115. Conditions for which cosmetic treatments are 
administered (such as most treatments for acne or plastic surgery) are 
not ``serious health conditions'' unless inpatient hospital care is 
required or unless complications develop. Restorative dental or plastic 
surgery after an injury or removal of cancerous growths are serious 
health conditions provided all the other conditions of this regulation 
are met. Mental illness or allergies may be serious health conditions, 
but only if all the conditions of Sec.  825.113 are met.
    Serious injury or illness means:
    (1) In the case of a current member of the Armed Forces, including 
a member of the National Guard or Reserves, an injury or illness that 
was incurred by the covered servicemember in the line of duty on active 
duty in the Armed Forces or that existed before the beginning of the 
member's active duty and was aggravated by service in the line of duty 
on active duty in the Armed Forces and that may render the 
servicemember medically unfit to perform the duties of the member's 
office, grade, rank, or rating; and
    (2) In the case of a covered veteran,
    (i) A continuation of a serious injury or illness that was incurred 
or aggravated when the covered veteran was a member of the Armed Forces 
and rendered the servicemember unable to perform the duties of the 
servicemember's office, grade, rank, or rating; or
    (ii) A physical or mental condition for which the covered veteran 
has received a U.S. Department of Veterans Affairs Service Related 
Disability Rating (VASRD) of 50% or higher, and such VASRD rating is 
based, in whole or in part, on the condition precipitating the need for 
military caregiver leave; or
    (iii) A physical or mental condition that substantially impairs the 
covered veteran's ability to secure or follow a substantially gainful 
occupation by reason of a service-connected disability or disabilities, 
or would do so absent treatment. See also Sec.  825.127(c).
    Son or daughter means a biological, adopted, or foster child, a 
stepchild, a legal ward, or a child of a person standing in loco 
parentis, who is either under age 18, or age 18 or older and 
``incapable of self-care because of a

[[Page 9020]]

mental or physical disability'' at the time that FMLA leave is to 
commence.
    Son or daughter of a covered servicemember means a covered 
servicemember's biological, adopted, or foster child, stepchild, legal 
ward, or a child for whom the covered servicemember stood in loco 
parentis, and who is of any age. See also Sec.  825.127(g)(1).
    Son or daughter on covered active duty or an impending call or 
order to covered active duty means the employee's biological, adopted, 
or foster child, stepchild, legal ward, or a child for whom the 
employee stood in loco parentis, who is on or has received notice of a 
call or order to covered active duty, and who is of any age. See also 
Sec.  825.126(b)(1).
    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.
    State means any State of the United States or the District of 
Columbia or any Territory or possession of the United States.
    Teacher (or employee employed in an instructional capacity, or 
instructional employee) means an employee employed principally in an 
instructional capacity by an educational agency or school whose 
principal function is to teach and instruct students in a class, a 
small group, or an individual setting, and includes athletic coaches, 
driving instructors, and special education assistants such as signers 
for the hearing impaired. The term does not include teacher assistants 
or aides who do not have as their principal function actual teaching or 
instructing, nor auxiliary personnel such as counselors, psychologists, 
curriculum specialists, cafeteria workers, maintenance workers, bus 
drivers, or other primarily noninstructional employees.
    TRICARE is the health care program serving active duty 
servicemembers, National Guard and Reserve members, retirees, their 
families, survivors, and certain former spouses worldwide.
    22. Remove and Reserve Appendices B through E, and G and H to part 
825.

[FR Doc. 2012-2311 Filed 2-14-12; 8:45 am]
BILLING CODE 4510-27-P