February 21, 2013

U.S. Department of Labor Issues New Family and Medical Leave Act Regulations

Family and Medical Leave Act (FMLA) regulations recently issued by the U.S. Department of Labor (DOL) will become effective on March 8, 2013.

Important changes, summarized below, include revisions to the FMLA poster employers must display in the workplace, clarification about how employers must track intermittent leave, expanded military family leave provisions that implement changes made in the National Defense Authorization Act for Fiscal Year 2010, and special rules for airline flight crews.

The new regulations also explicitly refer to the Genetic Information Non-Discrimination Act (GINA), and make clear employers' FMLA recordkeeping must comply with GINA's confidentiality requirements.

Employers subject to the FMLA should review their policies and procedures to make sure they comply with the new regulations before the March 8, 2013, effective date.

Revised FMLA Poster and Optional Use Forms

In connection with the new regulations, the DOL updated the poster that FMLA-covered employers are required to display. The new poster must be used on and after March 8, 2013. A copy of the poster can be obtained from the DOL website.

The DOL also revised several of its optional use forms, such as Form WH-381—Notice of Eligibility and Rights & Responsibilities, and Form WH-384—Certification of Qualifying Exigency for Military Family Leave. Copies of the optional use forms can be obtained from the DOL website.

Intermittent Leave Tracking

The new regulations clarify that employers must track intermittent FMLA leave using the smallest increment of time utilized with regard to other types of leave afforded employees. For example, if an employer calculates sick leave in quarter-hour increments, it must similarly calculate intermittent FMLA leave in quarter-hour increments. Employers may not record intermittent FMLA leave using increments of time greater than one hour.

Additionally, an employer may only count time actually taken as FMLA leave against an employee's FMLA entitlement, and may not count any time the employee worked for the employer against an employee's entitlement. For example, if an employer usually accounts for FMLA leave in one-hour increments, and an employee returns to work from a qualifying absence after 30 minutes and immediately returns to work, the employer must only count 30 minutes against the employee's leave entitlement, not a full hour.

Military Family Leave

The new regulations expand coverage for the family members of certain military personnel and veterans.

  • Qualifying Exigency Leave: Exigency leave allows family members to address issues that arise in relation to military deployment such as childcare, counseling, financial or legal arrangements, and short-notice deployment.

    The new regulations clarify that family members of Armed Forces, National Guard and Reserves personnel can qualify; however, the employee's military-member spouse, child or parent must be deployed to a foreign country in support of a contingency operation in order for the employee to be eligible.

    The regulations also add a new category of qualifying exigency leave for an employee's care of a qualifying military member's parents, when the leave is necessitated by the member's covered active duty.

    In addition, the regulations enlarge the amount of leave an eligible employee may take for rest and recuperation with the military member from five days to a maximum of 15 days.
  • Military Caregiver Leave: Military caregiver leave is leave afforded to the family members of certain "covered servicemembers" who have serious illnesses or injuries.

    The new regulations expand the definition of a "covered servicemember" to include veterans who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness. Covered veterans are individuals who were released or discharged under conditions other than dishonorable at any time during the five-year period prior to the first date an eligible employee takes FMLA leave to care for the covered veteran.

    The definition of a "serious injury or illness" has also been expanded to include a pre-existing injury or illness that was aggravated by active duty service. Additionally, certification requirements have been relaxed so that any health care provider may provide certification to support military caregiver leave.

Airline Flight Crews

The new regulations provide special rules for airline flight crews that address how to determine whether flight crew members have met the hours of service requirement, calculate the amount of leave available to them and keep specified records.

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