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
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:
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.
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.
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.
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.
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.