SUPPORTING STATEMENT
1235-0003, THE FAMILY AND MEDICAL LEAVE ACT OF 1993, AS AMENDED
EXPIRATION 06/2023
The Department is proposing to extend its information collection request (ICR) related to the Family and Medical Leave Act of 1993 (FMLA). The calculations for information collections required by 29 CFR part 825 have been updated using current data, resulting in a change in the number of responses to certain collections of information as well as to hours and cost burdens covered by the ICR. This ICR is being submitted under OMB Control No. 1235-0003 and expires on June 30, 2023. The Department is submitting this ICR as an extension.
The FMLA, 29 U.S.C. 2601, et seq., requires private sector employers that employ 50 or more employees, all public and private elementary schools, and all 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 a newborn child; for the placement with the employee of a son or daughter for adoption or foster care; to care for the employee’s spouse, son, daughter, or parent with a serious health condition; because of a serious health condition that makes the employee unable to perform the functions of the employee’s job; to address qualifying exigencies arising out of the deployment of the employee’s spouse, son, daughter, or parent to covered active duty in the military), and up to 26 workweeks of unpaid, job-protected leave during a single 12-month period to an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered current servicemember or veteran for the employee to provide care for the covered servicemember with a serious injury or illness. FMLA section 404 requires the Secretary of Labor to prescribe such regulations as necessary to enforce this Act. 29 U.S.C. 2654.
The Department’s authority for the collection of information and the required disclosure of information by employers, employees, and third parties (e.g., health care providers) under the FMLA stems from the statute and implementing regulations. These disclosures ensure that both employers and employees are aware of and can exercise their rights and meet their respective obligations under the FMLA. The required disclosures are discussed below.
Among other requirements, 29 U.S.C. 2601, et seq., and the regulations at 29 CFR part 825, require employers covered by the FMLA to make and maintain records for notices from employees regarding their need for leave as well as notices to employees regarding the protections of the FMLA generally, employee FMLA eligibility status, employee rights and responsibilities under the FMLA, and designation of FMLA covered leave. Employers must keep records of employee certifications for the serious health condition of an employee or an employee’s family member, any recertifications, fitness for duty to return to work, leave for a qualifying exigency, and leave to care for a covered servicemember. In addition, covered employers must post a general FMLA notice and, for covered employers with any eligible employees, include information about the FMLA in their employee handbook or provide a copy of such general notice to each new employee upon hire. Employers also must keep records of periodic employee status reports, documentation of family relationships, and notices to employees for pending cancellation of health benefits, key employee status, and change of 12-month period for determining FMLA entitlement.
Covered employers that have eligible employees must 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. The employer must record dates FMLA leave is taken by FMLA eligible employees. The employer is required to designate in its records all employees’ FMLA leave; this includes the hours of leave if FMLA leave is taken in increments of less than one full day; any documents (including written and electronic records) describing employee benefits or employer policies and practices regarding taking paid and unpaid leaves; premium payments of employee benefits; and 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.
Covered employers with no eligible employees must maintain the basic payroll and identifying employee data already discussed. Covered employers that jointly employ workers with other employers must keep all the records required by the regulations with respect to any primary employees and must keep the basic payroll and identifying employee data with respect to any secondary employees.
If FMLA-eligible employees are not subject to the Fair Labor Standards Act (FLSA) recordkeeping regulations for purposes of minimum wage or overtime compliance (i.e., not covered by, or exempt from, the FLSA), an employer need not keep a record of actual hours worked (as otherwise required by 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.
According to the FMLA and the regulations, no particular form for notices or certifications is required. However, the Department has developed optional-use forms which can be used by employers to provide required notices to employees and by employees to provide certification of their need for leave for an FMLA-qualifying reason. The FMLA disclosures ensure that both employers and employees are aware of and can exercise their rights and meet their respective obligations under the FMLA. The information collected allows employers to properly communicate with employees about their eligibility for FMLA leave and their rights and responsibilities under the FMLA and on the designation of FMLA leave. The information collection also allows employers to verify whether a leave request is FMLA qualifying. The recordkeeping requirements are necessary for the Department to carry out its statutory obligation under FMLA section 106 to investigate and ensure employer compliance. WHD uses these records to determine employer compliance.
The regulations prescribe no particular form of records. See 29 CFR 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.
Aside from the general requirement that all notifications be in writing, there are no restrictions on the method of transmission. Respondents may meet many of their notification obligations by using Department-prepared publications available on the WHD website, https://www.dol.gov/agencies/whd/fmla/forms. These forms are available in PDF, a fillable format for downloading and printing. Employers may maintain records in any format, including electronic, when adhering to the recordkeeping requirements covered by this information collection.
The FMLA information collections do not duplicate other existing information collections. However, to outline all relevant FMLA information in one set place, the FMLA recordkeeping requirements restate a portion of the records employers must maintain under the FLSA. These FLSA recordkeeping requirements, found in 29 CFR part 516, are currently approved under OMB control number 1235-0018 and are restated here for clarity. Employers do not need to duplicate any records provided that these records maintained pursuant to FLSA requirements are available to meet the FMLA requirements. The Department also accepts records kept due to other governmental requirements (e.g., records maintained for tax and payroll purposes).
While these information collections may involve some small businesses, the collections do not have a significant impact on small entities. The FMLA applies to all public agencies, public and private elementary and secondary schools, and to private employers if they employ 50 or more employees in any 20 workweeks in the current or preceding calendar year.
The Department is assigned a statutory responsibility to ensure employer compliance with the FMLA. The Department uses records covered by this information collection to determine compliance, as required of the agency by FMLA section 107(b)(1). 29 U.S.C. 2617(b)(1). Without the information disclosed and collected, employers and employees would have difficulty knowing and carrying out their FMLA rights and obligations.
requiring respondents to report information to the agency more often than quarterly;
requiring respondents to prepare a written response to a collection of information in fewer than 30 days after receipt of it;
requiring respondents to submit more than an original and two copies of any document;
requiring respondents to retain records, other than health, medical, government contract, grant-in-aid, or tax records, for more than three years;
in connection with a statistical survey, that is not designed to produce valid and reliable results that can be generalized to the universe of study;
requiring the use of a statistical data classification that has not been reviewed and approved by OMB;
that includes a pledge of confidentiality that is not supported by authority established in statute or regulation, that is not supported by disclosure and data security policies that are consistent with the pledge, or which unnecessarily impedes sharing of data with other agencies for compatible confidential use; or
requiring respondents to submit proprietary trade secrets, or other confidential information unless the agency can demonstrate that it has instituted procedures to protect the information’s confidentiality to the extent permitted by law.
There are no special conditions associated with these information collections.
Describe efforts to consult with persons outside the agency to obtain their views on the availability of data, frequency of collection, the clarity of instructions and record-keeping, disclosure, or reporting format (of any), and on the data elements to be recorded, disclosed, or reported.
Consultation with representatives of those from whom information is to be obtained or those who must compile records should occur at least once every 3 years – even if the collection of information activity is the same as in prior periods. There may be circumstances that may preclude consultation in a specific situation. These circumstances should be explained.
On November 9, 2022, the Department published a notice in the Federal Register inviting public comment about this information collection (87 FR 67718). No comments were received.
However, the Department worked with individuals who raised concerns over 508 compliance issues with the WH-380-E and WH-380-F forms. Specifically, these forms could not be read with a particular screen reader. The Department worked with these individuals to develop forms that can be read with that screen reader. OMB approved the updated forms submitted via an ICR Change request in February 2023. No other modifications have been made to the forms associated with this ICR since the last approval.
The Department makes no payments or gifts to respondents completing these information collections.
The Department makes no assurances of confidentiality to respondents. As a practical matter, the Department only discloses information collected under these requests in accordance with the provisions of the Freedom of Information Act (FOIA), 5 U.S.C. 552; and the attendant regulations, 29 CFR part 70, and the Privacy Act, 5 U.S.C. 552a; and related regulations, 29 CFR part 71.
The FMLA authorizes employers to require its employees to submit a medical certification, including a second or third opinion and subsequent recertifications, to substantiate the need for FMLA leave. These records may contain sensitive information because of the personal nature of a request for FMLA leave. However, the regulations specify how employers must limit access to such information.
Indicate the number of respondents, frequency of response, annual hour burden, and an explanation of how the burden was estimated. Unless directed to do so, agencies should not conduct special surveys to obtain information on which to base hour burden estimates. Consultation with a sample (fewer than 10) of potential respondents is desirable. If the hour burden on respondents is expected to vary widely because of differences in activity, size, or complexity, show the range of estimated hour burden, and explain the reasons for the variance. Generally, estimates should not include burden hours for customary and usual business practices.
If this request for approval covers more than one form, provide separate hour burden estimates for each form and aggregate the hour burdens.
Provide estimates of annualized cost to respondents for the hour burdens for collections of information, identifying and using appropriate wage rate categories. The cost of contracting out or paying outside parties for information collection activities should not be included here. Instead, this cost should be included under “Annual Cost to Federal Government.”
The Department estimates that there are 87.2 million FMLA eligible workers and that 392,127 employers respond to the FMLA collections. Of these 392,127 employers, the Department estimates that 74 percent or 290,304 (392,127 × 0.7403317 = 290,304) are private businesses. The remaining 101,823 (392,127 − 290,304 = 101,823) employers are government entities. Of the government entities, 25.9 percent or 101,731 (392,127 × 0.2594333 = 101,731) are assumed to be state, local, or tribal government employers; and 0.02 percent or 92 (392,127 × 0.0002348 = 92) are assumed to be federal government employers.1 The Department estimates that the number of respondents (in this instance, employees who work for covered employers who are FMLA eligible and actually take FMLA leave) to be approximately 6,889,489.2
Total Respondents: 6,889,489
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 indicating that the leave is potentially FMLA qualifying.
The Department estimates that there are 6,889,489 respondents. To determine the number of valid responses the Department applied the average number of responses per type of leave respondent per year. Based on a 2018 survey, the Department estimates that there are 1.6 traditional FMLA leave requests annually per respondent. See Employee and Worksite Perspectives of the Family and Medical Leave Act: Supplemental Results from the 2018 Surveys, at p. 20, https://www.dol.gov/sites/dolgov/files/OASP/evaluation/pdf/WHD_FMLA2018SurveyResults_Appendices_Aug2020.pdf. In addition, the Department estimates the following leave requests annually per respondent by leave type: 13 for a qualifying exigency, 44 for military caregiver (current servicemember), and 51 for military caregiver (veteran). The Department anticipates the additional submission of 2,200,000 invalid responses where either the employer was not covered or the employee was not eligible for leave.
Traditional FMLA leave responses: 6,719,3363 × 1.6 responses4 = 10,750,938 responses
Qualifying Exigency leave responses: 135,020 × 13 responses = 1,755,260 responses
Military Caregiver (current servicemember) leave responses: 28,244 × 44 responses = 1,242,736 responses
Military Caregiver (veteran) leave responses: 6,889 × 51 responses = 351,339 responses
Invalid responses: 2,200,000
Total: 10,750,938 + 1,755,260 + 1,242,736 + 351,339 + 2,200,000 = 16,300,273 responses
Total Employee Notice Responses: 16,300,273
The Department estimates that it will take an employee approximately 2 minutes per employee to provide notice of the need to take FMLA leave.
16,300,273 responses × 2 minutes per response ÷ 60 minutes per hour = 543,342 hours
Total Employee Notice Burden Hours: 543,342
The Department assumes that, in response to each employee notice of need for FMLA leave, all covered employers with eligible employees will notify their employees of their FMLA leave eligibility. Covered employers with eligible employees are in this instance the respondents and are estimated to be 392,127 total (290,304 private; 101,731 state, local, and tribal government; and 92 federal government employers), as explained above.
Total Respondents for Notices to Employees of FMLA Eligibility and Rights and Responsibilities: 392,127
Responses by sector:
Private: 12,067,609 responses (0.7403317215 × 16,300,273 = 12,067,609)
State, Local, Tribal Government: 4,228,835 responses (0.2594333834 × 16,300,273 = 4,228,835)
Federal Government: 3,829 responses (0.0002348951× 16,300,273 responses = 3,829)
Total Responses for Notices to Employees of FMLA Eligibility and Rights and Responsibilities: 16,300,273
The Department estimates that each written notice to an employee of their FMLA eligibility and notice of rights and responsibilities takes an employer approximately 10 minutes.
16,300,273 responses × 10 minutes per response ÷ 60 minutes = 2,716,712 burden hours
Burden hours by sector:
Private: 2,011,268 burden hours (0.7403317215 × 2,716,712 = 2,011,268)
State, Local, Tribal Government: 704,806 burden hours (0.25943338 × 2,716,712 = 704,806)
Federal Government: 638 burden hours (0.0002348951 × 2,716,712 = 638)
Total Burden Hours for Notices to Employees of FMLA Eligibility and Rights and Responsibilities: 2,716,712
Under the FMLA there are different types of employee certifications: Certification of Health Care Provider for Employee’s Serious Health Condition (WH-380-E) and Certification of Health Care Provider for Family Member’s Serious Health Condition (WH-380-F); Fitness-for-Duty Certification; Certification of Military Family Leave for Qualifying Exigency (WH-384); as well as Certification for Serious Injury or Illness of a Current Servicemember for Military Caregiver Leave (WH-385) and Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (WH-385-V).
Based on a 2018 survey, the Department estimates that there are 1.6 traditional FMLA leave requests annually per respondent. The Department estimates that 72.8 percent of employees who take FMLA leave will do so for a serious health condition of their own or that of a family member. See Family and Medical Leave in 2012: Technical Report at pp. 69–70, http://www.dol.gov/asp/evaluation/fmla/FMLA-2012-Technical-Report.pdf. The Department estimates that employers will require 92 percent of these employees to provide medical certification of the serious health condition. The Department further estimates that second or third opinions and recertifications add 15 percent to the total number of medical certifications.
6,719,336 traditional FMLA leave respondents × 1.6 average responses per respondent = 10,750,938 responses
10,750,938 responses × 0.728 serious health condition as FMLA leave reason = 7,826,683 responses
7,826,683responses × 0.92 employees with this leave reason requested to provide medical certification = 7,200,548 responses
7,200,548 responses × 0.15 employees requested to provide second or third opinions and recertifications = 1,080,082 responses
1,080,082 second or third opinions and recertifications + 7,200,548 original certifications = 8,280,630 responses
Total Medical Certification and Recertification Respondents: 6,719,336
Total Medical Certification and Recertification Responses: 8,280,630
The Department estimates that employees spend an average of 15 minutes in obtaining and completing each certification and recertification.
8,280,630 responses × 15 minutes ÷ 60 minutes per hour = 2,070,158 burden hours
Total Medical Certification and Recertification Response Burden Hours: 1,940,773
Based on a 2018 survey, the Department estimates that there are 1.6 traditional FMLA leave requests annually per respondent. The Department estimates that 51 percent of traditional FMLA leave is taken for an employee’s own serious health condition. See Employee and Worksite Perspectives of the Family and Medical Leave Act: Results from the 2018 Surveys at pp. 26-27, https://www.dol.gov/sites/dolgov/files/OASP/evaluation/pdf/WHD_FMLA2018SurveyResults_FinalReport_Aug2020.pdf. The Department further estimates that 10 percent of employees taking non-intermittent FMLA leave for their own serious health condition must submit 1 fitness-for-duty medical certification, 5 percent of intermittent leave users will be asked to present an average of 3 such certifications because of reasonable safety concerns.
Non-intermittent Leave Fitness-for-Duty Responses:
6,719,336 traditional FMLA leave respondents × 1.6 average responses per respondent = 10,750,938 responses
10,750,938 responses × 0.51 take leave for oneself = 5,482,978 responses
5,482,978 responses × 0.10 non-intermittent fitness-for-duty certification response request rate = 548,298 respondents and responses
548,298 responses × 1 per year = 548,298 responses
Intermittent Leave Fitness-for-Duty Responses:
6,719,336 traditional FMLA leave respondents × 1.6 average responses per respondent = 10,750,938 responses
10,750,938 responses × 0.51 take leave for oneself = 5,482,978 responses
5,482,978 responses × 0.05 percent intermittent fitness-for-duty certification response request rate = 274,149 respondents and responses
274,149 responses × 3 per year = 822,447 responses
Combined Non-intermittent Leave and Intermittent Leave Fitness-for-Duty Respondents and Responses:
548,298 non-intermittent leave respondents + 274,149 intermittent leave respondents = 822,447
548,298 non-intermittent leave responses + 822,447 intermittent leave responses = 1,370,745
Total Fitness-for-Duty Certification Respondents: 822,447
Total Fitness-for-Duty Certification Responses: 1,370,745
The Department estimates that employees spend an average of 10 minutes completing the fitness-for-duty certification. The Department does not associate an employer 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.
1,370,745 responses × 10 minutes = ÷ 60 minutes per hour = 228,458 burden hours
Total Fitness-for-Duty Certification Response Burden Hours: 228,458
The Department estimates there are 135,020 respondents for a qualifying exigency, and 1.6 responses per year per respondent. Of those respondents it is estimated that 92 percent will be asked for a certification.
135,020 respondents × 1.6 average response per respondent = 216,032 responses
216,032 responses × 92 percent of employees requested to provide a certification = 198,749 responses
Total Qualifying Exigency Certification Respondents: 135,020
Total Qualifying Exigency Certification Responses: 198,749
The Department further estimates it will take approximately 15 minutes for a Human Resources Assistant to request, review, and verify the employee’s certification papers.
198,749 responses × 15 minutes ÷ 60 minutes per hour = 49,687 burden hours
Total Qualifying Exigency Certification Burden Hours: 49,687
The Department estimates there are 28,244 respondents to care for a current servicemember and 6,889 respondents to care for a veteran. The Department estimates 1.6 leave requests (responses) per respondent per year for current servicemember and 1.6 leave requests (responses) per respondent per year for veterans. Of those respondents it is estimated that 92 percent will be requested to provide a certification.
28,244 respondents (current servicemember) + 6,889 respondents (veteran) = 35,133 respondents
35,133 respondents × 1.6 = 56,213 responses
56,213 responses × 0.92 of employees requested to provide a certification = 51,716 responses.
Total Care for a Current Servicemember and Veteran Certification Respondents: 35,133
Total Care for a Current Servicemember and Veteran Certification Responses: 51,716
The Department estimates that it will take a Human Resources Assistant 15 minutes to request, review, and verify the employee’s certification papers.
51,716 responses × 15 minutes ÷ 60 minutes per hour = 12,929 burden hours
Total Care for a Current Servicemember and Veteran Certification Burden Hours: 12,929
The Department estimates that all covered employers with eligible employees—392,127 employers—are respondents. The Department estimates there are 16,300,273 total responses for notices to employees of FMLA leave designation (as explained above).
Responses by sector:
Private: 12,067,609 responses (0.7403317215 × 16,300,273 = 12,067,609)
State, Local, Tribal Government: 4,228,835 responses (0.259433380 × 16,300,273 = 4,228,835)
Federal Government: 3,829 responses (0.0002348951 × 16,300,273 responses = 3,829)
Total Employee FMLA Designation Notice Respondents: 392,127
Total Employee FMLA Designation Notice Responses: 16,300,273
The Department estimates that each FMLA designation notice takes employers approximately 10 minutes to complete.
16,300,273 responses × 10 minutes ÷ 60 minutes per hour = 2,716,712 burden hours
Burden hours by sector:
Private: 2,011,268 hours (0.7403317215 × 2,716,712 = 2,011,268)
State, Local, Tribal Government: 704,806 hours (0.259433380 × 2,716,712 = 704,806)
Federal Government: 638 hours (0.0002348951 × 2,716,712 = 638)
Total Employee FMLA Designation Notice Burden Hours: 2,716,712
The Department estimates that annually 10 percent of FMLA-covered employers choose to change their 12-month period for determining FMLA eligibility and must notify their employees of the change. The total number of covered employers is estimated to be 392,127, of which, 290,304 are private; 101,731 are state, local, and tribal government; and 92 are federal government employers, as outlined above. Also, the Department assumes that 10 percent of FMLA covered employers with eligible employees change their 12-month period for determining FMLA eligibility. These notifications can be accomplished via one e-mail sent to all employees or by posting hard copies.
392,127 × 0.10 = 39,213 respondents
39,213 × 1 notice per respondent = 39,213 responses
Responses by sector:
Private: 29,030 responses (0.7403317215 × 39,213 = 29,030)
State, Local, Tribal Government: 10,173 responses (0.259433380 × 39,213 = 10,173)
Federal Government: 9 responses (0.0002348951 × 39,213 = 9)
Total Notice to Employees of Change of 12-month Period for Determining FMLA Eligibility Respondents: 39,213
Total Notice to Employees of Change of 12-month Period for Determining FMLA Eligibility Responses: 39,213
The Department estimates that the notice requires approximately 10 minutes for the employer to notify their entire workforce.
39,213 responses × 10 minutes = 392,130 minutes
392,130 minutes ÷ 60 minutes = 6,537 burden hours
Burden hours by sector:
Private: 4,839 hours (0.7403317215 × 6,536 = 4,839)
State, Local, Tribal Government: 1,696 hours (0.259433380 × 6,536 = 1,696)
Federal Government: 2 hours (0.0002348951 × 6,536 = 2)
Total Notice to Employees of Change of 12-month Period for Determining FMLA Eligibility Burden Hours: 6,537
The Department estimates that annually 10 percent of FMLA-covered employers notify one key employee of the intent not to restore the employee at the conclusion of FMLA leave. Total number of covered employers is estimated to be 392,127, of which, 290,304 are private; 101,731 are state, local, and tribal; and 92 are federal employers, as outlined above. In addition, the Department estimates that half of these cases will require the employer to issue a second notice to address a key employee’s subsequent request for reinstatement.
392,127 employers × 0.10 = 39,213 respondents
Respondents by sector:
Private: 29,030 employers or respondents (290,304 × 0.10 = 29,030)
State, Local, Tribal Government: 10,173 employers or respondents (101,731 × 0.10 = 10,173)
Federal Government: 9 employers or respondents (92 × 0.10 = 9)
Total Key Employee Notification Respondents: 39,213
Responses by sector:
Private: 43,545 responses (29,030 employers × 1.5 notices = 43,545)
State, Local, Tribal Government: 15,260 responses (10,173 employers × 1.5 notices = 15,260)
Federal Government: 14 responses (9 employers × 1.5 notices = 14)
Total Key Employee Notification Responses: 58,819
The Department estimates each key employee notification takes the employer approximately 5 minutes to complete and issue.
58,819 responses × 5 minutes per response ÷ 60 minutes = 4,902 burden hours
Burden hours by sector:
Private: 3,629 hours (0.7403317215 × 4,902 = 3,629.11)
State, Local, Tribal Government: 1,272 hours (0.259433380 × 4,902 = 1,271.74)
Federal Government: 1 hour (0.0002348951 × 4,902 = 1.15)
Total Key Employee Notification Burden Hours: 4,902
The Department estimates that employers require periodic reports from 25.5 percent of FMLA leave takers, which is based on the percentage of FMLA leave takers with absences lasting more than 30 days. 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 additional burden the regulations might impose, the Department estimates a 10 percent response rate and a burden of 2 minutes of employee time per response. The Department further estimates that each such respondent annually provides two periodic status reports. While the Department believes most employers would only seek these reports in accordance with customary business practices, the agency has accounted for any potential additional employer burden in the “Eligibility Notice.”
6,889,489 leave takers × 0.255 request rate × 0.10 response rate = 175,682 respondents
175,682 respondents × 2 responses per year = 351,364 responses
351,364 × 2 minutes ÷ 60 minutes per hour = 11,712 burden hours
Total Periodic Employee Status Report: Respondents: 175,682
Total Periodic Employee Status Report Responses: 351,364
Total Periodic Employee Status Report Burden Hours: 11,712
The Department estimates that approximately 50 percent of the 6,889,489 employees who take FMLA leave do so for reasons related to family, such as caring for a newborn, a recently adopted child, or a qualifying family member with a serious health condition. As it did in the 2013 final rule, the Department estimates that employers may require additional documentation to support a family relationship in 5 percent of these cases, which would require an additional 5 minutes of employee time per case.
6,889,489 leave takers × 0.50 = 3,444,745 respondents
3,444,745 respondents × 0.05 request rate = 172,237 responses
172,237 responses × 5 minutes ÷ 60 minutes per hour = 14,353 hours
Total Documenting Family Relationships Respondents: 3,444,745
Total Documenting Family Relationships Responses: 172,237
Total Documenting Family Relationships Burden Hours: 14,353
Based on the number of employees indicating they have lost benefits, the Department estimates that half of FMLA-covered employers send one FMLA leave taker per year a notification of not having received health insurance premiums. The total number of covered employers is estimated to be 392,127, of which 290,304 are private; 101,731 are state, local, and tribal; and 92 are federal employers. For purposes of estimating the paperwork burden associated with this information collection, the Department estimates that unique respondents would send all responses, and each notification would take 5 minutes to prepare and issue.
Respondents by sector:
Private: 145,152 respondents (290,304 × 0.50 = 145,152)
State, Local, Tribal Government: 50,866 respondents (101,731 × 0.50 = 50,866)
Federal Government: 46 respondents (92 × 0.50 = 46)
Total Notice to Employee of Pending Cancellation of Health Benefits Respondents: 196,064
Responses by sector:
Private: 145,152 responses (145,152 respondents × 1 notice = 145,152)
State, Local, Tribal Government: 50,866 responses (50,866 respondents × 1 notice = 50,866)
Federal Government: 46 responses (46 respondents × 1 notice = 46)
Total Notice to Employee of Pending Cancellation of Health Benefits Responses: 196,064
Burden hours by sector:
Private: 12,096 hours (145,152 × 5 minutes ÷ 60 minutes per hour = 12,096)
State, Local, Tribal Government: 4,239 hours (50,866 × 5 minutes ÷ 60 minutes per hour = 4,239)
Federal Government: 4 hours (46 × 5 minutes ÷ 60 minutes per hour = 4)
Total Notice to Employee of Pending Cancellation of Health Benefits Burden Hours: 16,339
Employers are responsible for all general recordkeeping required by the FMLA.
The Department estimates that 97.54 percent of FMLA leave is for traditional FMLA leave; 1.96 percent is for qualifying exigency leave; 0.41 percent is for military caregiver (current servicemember) leave; and 0.10 percent is for military caregiver (veteran) leave. Based on a 2018 survey, the Department estimates that there are 1.6 traditional FMLA instances of leave annually per respondent. In addition, the Department estimates the following instances of leave annually per respondent by leave type: 13 qualifying exigency, 44 military caregiver (current servicemember), and 51 military caregiver (veteran). The Department estimates that the FMLA imposes an additional general recordkeeping burden on each FMLA-covered employer that equals 1.25 minutes for each FMLA instance of leave. The number of responses equals the number of FMLA instances of leave.
The total number of respondents is equal to the total number of employers, as explained in the opening paragraph to this response 12, and is 392,127 respondents.
Total General Recordkeeping Respondents: 392,127
Respondents by leave type:
Traditional FMLA leave respondents: 382,480.68 (392,127 × 0.9754 = 382,480.68)
Qualifying Exigency leave respondents: 7,685.69 (392,127 × 0.0196 = 7,685.69)
Military Caregiver leave respondents: 1,609.17 (392,127 × 0.0041 = 1,609.17) (current servicemember); and 392.13 (392,127 × 0.0010 = 392.13) (veteran)
The number of responses equals the number of FMLA instances of leave. The calculation for the number of responses is explained in the response at 12A (10,079,004 + 1,755,260 + 1,242,736 + 351,339 = 13,428,339)
Total General Recordkeeping Responses: 14,100,273
Responses by leave type:
Traditional FMLA: 10,750,938 responses (6,719,336 × 1.6 instances = 10,750,938)
Qualifying Exigency FMLA: 1,755,260 responses (135,020 × 13 instances = 1,755,260)
Military Caregiver FMLA: 1,594,075 responses ((28,244 × 44 current servicemember instances = 1,242,736) + (6,889 × 51 veteran instances = 351,339))
Responses by sector:
Private: 10,438,879 responses (14,100,273 × 0.7403317215 = 10,438,879)
State, Local, Tribal Government: 3,658,082 responses (14,100,273 × 0.259433380 = 3,658,082)
Federal Government: 3,312 responses (14,100,273 × 0.0002348951 = 3,312)
The Department estimates that the FMLA imposes an additional general recordkeeping burden on each FMLA-covered employer that equals 1.25 minutes for each FMLA instance of leave.
Burden hours:
14,100,273 total responses × 1.25 minutes ÷ 60 minutes per hour = 293,756 burden hours
Total General Recordkeeping Burden Hours: 293,756
Burden hours by leave type:
Traditional FMLA: 223,978 burden hours (10,750,938 responses × 1.25 minutes ÷ 60 minutes per hour = 223,978)
Qualifying Exigency FMLA: 36,568 burden hours (1,755,260 responses × 1.25 minutes ÷ 60 minutes per hour = 36,568)
Military Caregiver FMLA: 33,210 burden hours (1,594,075 responses × 1.25 minutes ÷ 60 minutes per hour = 33,210)
Burden hours by sector:
Private: 217,477 hours (293,756 × 0.7403317215 = 217,477)
State, Local, Tribal Government: 76,210 hours (293,756 × 0.259433380 = 76,210)
Federal Government: 69 hours (293,756 × 0.0002348951 = 69)
FMLA Item |
Respondents |
Responses |
Burden Hours |
|
6,889,489 |
16,300,273 |
543,342 |
|
392,127 |
16,300,273 |
2,716,712 |
(Certifications C.1.–C.4.) |
6,719,336 |
9,901,840 |
2,361,231 |
|
392,127 |
16,300,273 |
2,716,712 |
|
39,213 |
39,213 |
6,537 |
|
39,213 |
58,819 |
4,902 |
|
175,682 |
351,364 |
11,712 |
|
3,444,745 |
172,237 |
14,353 |
|
196,064 |
196,064 |
16,339 |
|
392,127 |
14,100,273 |
293,756 |
Totals: |
6,889,489 |
73,720,629 |
8,685,596 |
Persons responding to the various FMLA information collections may be employees of any of a wide variety of businesses. Therefore, absent specific wage data regarding respondent employers, to estimate employer burden costs, the Department uses data for a non-supervisory Human Resources Specialist. To calculate this cost, the median hourly wage for a Human Resources Specialist is used (BLS Occupational Employment and Wages Statistics (OEWS) May 2021, https://www.bls.gov/oes/current/oes131071.htm). The median hourly wage is $29.95, with an additional 45 percent benefits cost (BLS Employer Costs for Employee Compensation (ECEC) quarterly total benefit civilian average from December 2021 through September 2022, https://www.bls.gov/ncs/data.htm) ($29.95 × 0.45 = $13.48), and 17 percent overhead cost ($29.95 × 0.17 = $5.09).
8,685,594 hours × $29.95 = $260,133,154
8,685,594 hours × $13.48 = $117,128,137
8,685,594 hours × $5.09 = $44,222,704
Total Monetized Value of the Time Burden for All Requirements: $421,484,395
The cost estimate should be split into two components: (a) a total capital and start-up cost component (annualized over its expected useful life) and (b) a total operation and maintenance and purchase of services component. The estimates should take into account costs associated with generating, maintaining, and disclosing or providing the information. Include descriptions of methods used to estimate major cost factors including system and technology acquisition, expected useful life of capital equipment, the discount rate(s), and the time period over which costs will be incurred. Capital and start-up costs include, among other items, preparations for collecting information such as purchasing computers and software; monitoring, sampling, drilling and testing equipment; and record storage facilities.
If cost estimates are expected to vary widely, agencies should present ranges of cost burdens and explain the reasons for the variance. The cost of purchasing or contracting out information collections services should be a part of this cost burden estimate. In developing cost burden estimates, agencies may consult with a sample of respondents (fewer than 10), utilize the 60-day pre-OMB submission public comment process and use existing economic or regulatory impact analysis associated with the rulemaking containing the information collection, as appropriate.
Generally, estimates should not include purchases of equipment or services, or portions thereof, made: (1) prior to October 1, 1995, (2) to achieve regulatory compliance with requirements not associated with the information collection, (3) for reasons other than to provide information or keep records for the government, or (4) as part of customary and usual business or private practices.
Employees seeking FMLA leave for a serious health condition must obtain, upon their employer’s request, a certification of the serious health condition from a health care provider. 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. While most health care providers do not charge for completing these certifications, some do. The Department estimates completion of serious health condition certification and leave to care for a covered servicemember certification to take about 15 minutes each and a fitness-for-duty certification to require 10 minutes.
To determine operations and maintenance costs the Department calculated health care provider burden cost to capture the cost of time spent completing medical certifications. The Department used the median hourly wage for a Physician’s Assistant of $58.43 plus 45 percent in fringe benefits, which results in a total hourly rate of $84.72 (($58.43 × 0.45) + $58.43 = $84.72). See BLS OEWS, May 2021, https://www.bls.gov/oes/current/oes291071.htm; see also BLS ECEC, quarterly total benefit civilian average from December 2021 through September 2022, https://www.bls.gov/ncs/data.htm.
C-1. Medical Certification and Recertification:
8,280,630 responses × 15 health care provider minutes ÷ 60 minutes per hour = 2,070,158 hours
C- 2. Fitness-for-Duty Medical Certification:
1,370,745 responses × 10 health care provider minutes ÷ 60 minutes per hour = 228,457 hours
C-4. Certification for Leave Taken to Care for a Covered Servicemember (current servicemember and veterans):
51,716 responses × 15 health care provider minutes ÷ 60 minutes per hour = 12,929 hours
Total health care provider burden hours: 2,311,544 (2,070,158 + 228,457 + 12,929 =2,311,544)
Total operations and maintenance burden costs: $195,834,007 (2,311,544 hours × $84.72 = $195,834,007)
The federal costs that the Department associates with this information collection relate to printing or duplicating and mailing the subject forms. The Department believes that most respondents retrieve the forms online, and therefore estimates it will annually provide an average of one copy of each form covered by this information collection to 10 percent of the 392,127 FMLA-covered employers, and that the agency will mail all forms simultaneously to any given requestor. The Department further estimates information technology costs will offset some of the printing and duplicating costs in an equal amount; therefore, the agency is presenting only the costs of the latter:
392,127 Forms WH-380-E × 4 pages (or × 2 two-sided pages) = 1,568,508 pages
392,127 Forms WH-380-F × 4 pages (or × 2 two-sided pages) = 1,568,508 pages
392,127 Forms WH-381 × 2 pages (or × 1 two-sided pages) = 784,254pages
392,127 Forms WH-382 × 1 page (or × 1 two-sided pages) = 392,127 pages
392,127 Forms WH-384 × 3 pages (or × 2 two-sided pages) = 1,176,381 pages
392,127 Forms WH 385 × 4 pages (or × 2 two-sided pages) = 1,568,508 pages
392,127 Forms WH-385-V × 4 pages (or × 2 two-sided pages) = 1,568,508 pages
Total forms = 2,744,899 (392,127 FMLA-covered employers × 7 forms)
Total printed (front and back) pieces of paper for one copy of each form = 12 (2 + 2 + 1 + 1 + 2 + 2 + 2 = 12)
Total pages = 8,626,794 (1,568,508 pages + 1,568,508 pages + 784,254 pages + 392,127 pages + 1,176,381 pages + 1,568,508 pages + 1,568,508 pages = 8,626,794)
8,626,794 pages ÷ 2 for front and back printing × $0.03 printing costs per page = $129,402
392,127 mailings × $1.53 ($0.03 envelopes + $1.50 postage to mail 1 flat envelope and 12 pages with an approximate weight of 2 ounces. USPS rate for first ounce is $1.26 plus $0.24 for each additional ounce) = $599,954.31
Total Estimated Annual Federal Costs = $72,356 ($129,402 + $599,954.31 = $729,356 × 0.10 = $72,356)
Changes reported on the burden worksheet do not result from changes to the regulations; they result because updated data has been used, resulting in adjustments to the burden worksheet.
First, there is a decrease in respondents, responses, and burden hours due to correcting the calculation regarding Documenting Family Relationships. WHD estimates that half of FMLA leave takers take leave for a family member. However, the supporting statement in 2020 did not include this calculation. WHD corrects the error in this supporting statement, which reduces the number of respondents, responses, and burden hours by half. (See response #12H for detailed calculation.)
Second, there was a change to the number of respondents in regard to General Recordkeeping. The 2020 supporting statement incorrectly used the number of employees as respondents instead of the number of employers. This supporting statement correctly uses the number of employers as respondents, reducing the number of respondents by 94 percent.
Third, there is a decrease in responses and burden hours regarding Fitness for Duty Medical Certifications due to a decrease in the estimated rate of employees taking leave for their own serious health condition from 54.6 percent to 51 percent. This change is due to the use of data from a new FMLA survey. Specifically, the 2020 supporting statement used WHD’s 2012 FMLA survey, which reported 54.6 percent of employees taking leave for their own serious health condition, whereas this supporting statement used WHD’s 2018 FMLA survey, which reported 51 percent.
Fourth, there is a decrease in responses regarding the Change of 12-month Period Notice. The 2020 supporting statement stated that every respondent had to individually send notices to their employees. However, this supporting statement recognized that respondents can provide these notifications by sending one email to all employees or by posting hard copies. These notifications are not individually sent to every employee. This change resulted in a 99.6 percent decrease in responses for this particular notice.
Fifth, there is an increase in responses and burden hours regarding Employee Notice of Need for Leave, Notices to Employee FMLA Eligibility and Rights and Responsibilities, Certification of Health Care Provider for Serious Health Condition, Fitness-for-Duty Medical Certification, Certification of Military Family Leave for Qualifying Exigency, Certification for Serious Injury or Illness of a Current Servicemember and Veteran for Military Caregiver for Leave, Notice to Employee of FMLA Leave Designation, and General Recordkeeping. This change is due to the use of data from a more recent FMLA survey. Specifically, the 2020 supporting statement used WHD’s 2012 FMLA survey, which reported an average of 1.5 FMLA leave requests annually per respondent, whereas this supporting statement used WHD’s 2018 FMLA survey, which reported an average of 1.6 FMLA leave requests annually per respondent. This change resulted in an increase in responses and burden hours.
Finally, there is a decrease in total operations and maintenance cost which is attributed to a $0.39 decrease in the health care provider hourly wage rate applied to a slight reduction in health care provider burden hours. In addition, federal cost significantly decreased overall. Despite a slight USPS postage rate increase of $0.10, WHD estimates that it mails FMLA forms to only 10 percent of employers annually resulting in a reduction of approximately 90 percent.
The Department does not plan to publish results of this information collection.
The Department is not requesting an exception to the requirement to display the expiration date on this information collection.
The Department is not requesting an exception to the certification requirements for these information collections.
1 Within each information collection, the respondents, responses, and burden estimates are rounded to the nearest whole number.
2 This number is derived by multiplying 87.2 million FMLA eligible workers by the ratio of 7,182,916 respondents in the 2015 ICR to 91.1 million FMLA eligible workers in the 2015 ICR. That is 87,200,000 × (7,182,916 ÷ 91,100,000) = 87,200,000 × 0.079 = 6,888,800 respondents. This number was disaggregated by employer type (see footnote 3). Due to rounding, when the disaggregated totals were summed, the result was 6,889,489 (6,719,336 + 135,020 + 28,244 + 6,889 = 6,889,489).
3 The disaggregated number of respondents was determined as follows: total respondents × 2015 percent of respondent type. Accordingly, traditional FMLA: 6,888,800 × 0.9754 = 6,719,336; qualifying exigency: 6,888,800 × 0.0196 = 135,020; military caregiver current servicemember: 6,888,800 × 0.0041 = 28,244; military caregiver veteran: 6,888,800 × 0.0010 = 6,889. The 2015 percent of respondent type of total respondents was calculated as follows: traditional FMLA 7,005,950 ÷ 7,182,916 = 97.54 percent; qualifying exigency: 140,900 ÷ 7,182,916 = 1.96 percent; military caregiver (current servicemember): 29,100 ÷ 7,182,916 = 0.41 percent; and military caregiver (veteran) 6,966 ÷ 7,182,916 = 0.1 percent.
4 The Department used 1.6 traditional FMLA leave requests annually per respondent from a 2018 DOL survey. The Department estimates that there are 13 qualifying exigency leave requests per year per respondent, 44 military caregiver (current servicemember) leaves per year per respondent, and 51 military caregiver (veteran) leaves per year per respondent.
| File Type | application/vnd.openxmlformats-officedocument.wordprocessingml.document |
| Author | Waterman, Robert - WHD |
| File Modified | 0000-00-00 |
| File Created | 2023-07-29 |