March 1, 2013
The Department of Labor ("DOL") has published final regulations clarifying several changes to the Family and Medical Leave Act ("FMLA"), which require a new FMLA poster to be posted, expand the law’s military family leave provisions, and implement airline flight crew employee FMLA leave entitlements, among other provisions.
Some of the highlights of the final regulations include:
New FMLA Poster and Forms
All employers covered by the FMLA are required to display and keep on display a poster prepared by the DOL summarizing the major provisions of the FMLA. Beginning March 8, 2013, covered employers must begin using the new poster, which is available on the Department of Labor website. The optional use forms previously provided in the appendices to the regulations will no longer be available in the appendices. They will now be available on the Wage and Hour Division website, as well as at local Wage and Hour District offices. This change will allow the DOL to update them more readily. The DOL also has provided fact sheets, a set of frequently asked questions, and additional guidance on these changes on its web page.
Qualifying Exigency Leave
The new regulations expand eligibility for qualifying exigency leave to family members of regular Armed Services members, not only members of the National Guard and Reserves, and also require that the service member be deployed to a foreign country in order for the qualifying exigency leave to apply. A new qualifying exigency leave category for parental care leave was also established. Eligible employees can take leave to care for a military member’s parent who is incapable of self-care when the care is necessitated by the member’s covered active duty. Such care may include arranging for alternative care, providing care on an immediate need basis, admitting or transferring the parent to a care facility, or attending meetings with staff at a care facility. The new regulations also increase the amount of time an eligible employee may take for Rest and Recuperation qualifying exigency leave from 5 to 15 days.
Military Caregiver Leave
The definition of a covered service member has been expanded to include covered veterans who are undergoing medical treatment, recuperation, or therapy due to a serious injury or illness, rather than just current service members. A covered veteran is an individual who was discharged or released under conditions other than dishonorable at any time during the five-year period prior to when the eligible employee takes FMLA leave to care for the covered veteran. However, the period between the enactment of the law giving rise to these regulations, which was October 28, 2009, and the effective date of the final rule, March 8, 2013, is excluded in determining the five-year period for covered veteran status. The definition of a serious injury or illness for a current service member has been expanded to include an injury or illness that existed before the beginning of the service member’s active duty and was aggravated by service in the line of duty on active duty in the armed forces. A serious injury or illness for a covered veteran means an injury or illness that was incurred or aggravated by the service member in the line of duty on active duty in the armed forces and manifested itself before or after the service member became a veteran, and which meets four other specific criteria set forth in the regulations.
Under the final regulations, any healthcare provider authorized to complete a medical certification for other types of FMLA leave will now also be able to provide a medical certification for military caregiver leave. Previously, only healthcare providers with the Department of Defense, Department of Veterans Affairs, or with TRICARE were authorized to provide medical certification for covered service members.
FMLA Leave For Airline Flight Crew Employees
The new regulations provide special rules for airline flight crew employees, with respect to the hours of service requirements, calculation of leave, and recordkeeping requirements.
What Employers Should Do Now
Employers should take this opportunity to review their FMLA policies to ensure that the military exigency leave and military caregiver leave provisions are incorporated and accurately reflect the current state of the law. Employers covered by the FMLA should also post the new FMLA poster on or before March 8, 2013.
Please contact any member of Taft’s Labor and Employment practice group for further assistance and any questions regarding the new final regulations.