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NRCA issues comments about DOL's proposed changes to the Family and Medical Leave Act, April 2008

On April 11, 2008, NRCA submitted comments to the U.S. Department of Labor about its proposed alterations on existing regulations for the Family and Medical Leave Act. NRCA's comments follow.



April 11, 2008

Richard Brennan, Senior Regulatory Officer
Wage and Hour Division
Employment Standards Administration
U.S. Department of Labor
Room S-3502
200 Constitution Avenue NW
Washington, D.C. 20210
Sent via the Federal eRulemaking Portal

Re: RIN 1215-AB35

Dear Mr. Brennan:

On behalf of the National Roofing Contractors Association (NRCA), thank you for the opportunity to provide comments on the Department of Labor's (DOL's) proposed rule cited above.

Established in 1886, NRCA is one of the construction industry's oldest trade associations and the voice of professional roofing contractors worldwide. NRCA is an association of roofing, roof deck, and waterproofing contractors; industry-related associate members, including manufacturers, distributors, architects, consultants, engineers, and city, state, and government agencies; and international members. NRCA has approximately 4,600 members from all 50 states and 54 countries and is affiliated with 105 local, state, regional and international roofing contractor associations.

NRCA submits these comments in response to the February 11, 2008, Federal Register notice published by DOL, in which the Department proposes to alter existing regulations for the Family and Medical Leave Act (FMLA).

NRCA is generally supportive of DOL's proposed rule for the FMLA and believes most changes will enable the program to function more effectively for both employers and employees. There are specific areas in the proposed rule that we particularly encourage DOL to include in its final rule:
  1. New language to define "Continuing Treatment", 29 C.F.R § 825.115. Currently, an employee can meet the continuing treatment requirements needed to establish a Serious Health Condition by simply calling in sick, leaving the employer unable to verify the medical necessity of the absence. The proposed rule rightly corrects this by clearly stating that treatment must be conducted by a health care provider two or more times within 30 days for incapacity to be established, or twice yearly for chronic conditions. This change will ensure employees seek medical attention when needed and prevent abuses of the FMLA.
  2. Extended timeframe for giving Notice of Eligibility and Designation of Leave, 29 C.F.R § 825.300 (b) and (c). Currently, employers are only allowed two days to determine and provide notice as to an employee's eligibility for FMLA leave, after which the employer only has two days to provide in writing whether or not the employee's requested leave falls under FMLA. Small business owners, which make up the majority of the roofing industry, often lack dedicated human resource personnel thus making two days an extremely limited timeframe for owners. NRCA strongly supports the proposed rule's extended timeframe of five days to give notice of eligibility and designation of leave.
  3. New Employee Notice Requirements, 29 C.F.R § 825.302. Under current rules, in regard to foreseeable leave, employees must provide their employer 30 days or make reasonable efforts to schedule treatment so as to not unduly interfere with the normal operation of business. However, the rule prevents employers from denying leave if the employee fails to fulfill their advance notice obligations. This leaves employers powerless to ensure the proper use of the FMLA. The proposed rule corrects this by stating that if 30 days of notice are not provided, an employer can ask the employee why such notice was not given. In addition, absent emergency situations, where an employee becomes aware of the need for FMLA leave less than 30 days in advance, the employee is required to follow the employer's standard procedures for leave requests or calling in. Furthermore, if the employee does not adhere to these requirements and does not respond to the employer's questions, the employer can deny or delay FMLA leave.
  4. Improved Medical Certification, 29 C.F.R § 825.307. The current system for an employer to obtain medical certification of an employee's condition is hindered and made costly by requiring employers to only communicate with the employee's health care provider through a health care provider representing the employer. In addition, the advent of The Health Insurance Portability and Accountability Act (HIPAA) has made it even more difficult for an employer to verify an employee's eligibility for leave. The proposed rule addresses this problem by allowing employers to directly contact an employee's health care provider for purposes of verification (i.e. handwriting) or clarification (i.e. definitions). NRCA agrees with the proposed rule's intent to protect the privacy of employees by stating they must be given an opportunity to answer any questions in regard to their medical certification and that the employer can only contact their health care provider with their permission. Additionally, the proposed rule ensures the integrity of the FMLA by allowing an employer to deny leave if the employee refuses to obtain verification and/or clarification of issues regarding their medical certification or provide their employer with permission to contact their health care provider.
  5. Clarify that all leave can be considered for achievement bonuses, 29 C.F.R § 825.215(c)(2). Under current regulation an employee can still be eligible for attendance or other goal-related bonuses if their leave that prevented them from achieving their goal was FMLA-protected. This regulation reduces the value of bonuses and harms the morale of other employees. This unfair situation is corrected in the proposed rule by specifying that if an employee fails to meet a goal due to FMLA leave, they can be denied any bonuses related to the achievement of said goal.
While NRCA feels DOL has dealt successfully in the proposed rule with various problems encountered when implementing the FMLA, we are disappointed the rule fails to address the administrative burden placed on small businesses in the tracking of intermittent leave. Under 29 C.F.R § 825.205(a) an employee can take FMLA leave in increments equal to the shortest period of time that an employer's payroll system will capture. In some cases this is as little as six minutes. Tracking leave of these intervals is administratively difficult even for larger businesses. NRCA hopes DOL will seek to correct this problem in the near future.

NRCA appreciates the opportunity to submit comments and thanks DOL in advance for giving careful consideration to our views on these important regulatory changes.

Sincerely,

Nick Tindall
Director of Public Affairs





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