Family Walking in Park

Written by Attorney Steven M. Cerny
Direct: (612) 466-0060
Email:  scerny@thompsonhall.com

The Family and Medical Leave Act of 1993 (FMLA) was recently amended by the United States Department of Labor (DOL).  The changes adopted by the DOL are effective as of March 8, 2013. The new regulations, among other things, expand protections to military families and airline flight crews.  Specifically, the updated regulations provide families of eligible veterans with FMLA leave, allow for additional leave for military families for activities related to a service member that is deployed, and clarify the method that should be used to calculate leave time for airline flight crew employees.  The regulations also implement an updated notice poster that must be displayed by all covered employers by March 8, 2013.  A few of the significant changes to the FMLA are summarized below.

Qualifying Exigency Leave

The FMLA provides that an eligible employee may take leave for qualifying exigencies arising out of the fact that a “covered military member” who is the employee’s spouse, son, daughter or parent is on active duty or has been notified of an impending call or order to active duty in support of a contingency operation.  Under the new regulations “covered military member” was changed to “military member” and now includes both members of the National Guard and Reserves and the Regular Armed Forces.  “Active duty” is now “covered active duty” and requires deployment to a foreign country.

An eligible employee may take leave for any of the following reasons:

  1. short notice deployment;
  2. military events and related activities;
  3. childcare and school activities;
  4. financial and legal arrangements;
  5. counseling;
  6. rest and recuperation;
  7. post-deployment activities; and
  8. additional activities.

The new regulations add an additional category for parental care leave.  Specifically, eligible employees may now 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 attending meetings with staff at a care facility, arranging for alternative care, providing care on an immediate need basis, or admitting or transferring the parent to a care facility.

Under the old regulations, an employee who requested qualifying exigency leave to spend time with a military member on Rest and Recuperation leave was allowed up to five days of leave.  The new regulations increase the amount of leave up to a maximum of fifteen days.

Military Caregiver Leave

Under the FMLA an eligible employee who is the family member of a covered servicemember (a current servicemember) with a “serious injury or illness” may take up to twenty-six weeks of leave per year to care for the servicemember.  The new regulations expand the definition of “covered servicemember” to include covered veterans who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness.  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 the first date the eligible employee takes FMLA leave to care for the covered veteran.

The regulations also expand the definition of a “serious injury or illness” for a current servicemember to include injuries or illnesses that existed before the beginning of the member’s active duty and were aggravated by service in the line of duty on active duty in the Armed Forces.  The new regulations also provide that a “serious injury or illness” for a covered veteran means an injury or illness that was incurred or aggravated by the member in the line of duty on active duty in the Armed Forces and manifested itself before or after the member became a veteran, and is:

  1. A continuation of a serious injury or illness that was incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the servicemember unable to perform the duties of the servicemember’s office, grade, rank, or rating; or
  2. A physical or mental condition for which the covered veteran has received a VA Service Related Disability Rating (VASRD) of 50 percent or greater and such VASRD rating is based, in whole or in part, on the condition precipitating the need for caregiver leave; or
  3. A physical or mental condition that substantially impairs the veteran’s ability to secure or follow a substantially gainful occupation by reason of a disability or disabilities related to military service or would do so absent treatment; or
  4. An injury, including a psychological injury, on the basis of which the covered veteran has been enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.

In addition, the list of health care providers who are authorized to complete a certification for military caregiver leave for a covered servicemember is expanded to include health care providers, as defined by the FMLA, who are not affiliated with the Department of Defense, Department of Veterans Affairs, or TRICARE networks.

Employee Eligibility and USERRA

The new regulations clarify the Uniformed Services Employment and Reemployment Rights Act (USERRA) protections for employees who miss work due to USERRA-covered military service.  Specifically, the protections afforded by USERRA extend to all military members, active duty and reserve, and all periods of absence from work due to or necessitated by USERRA-covered service is counted in determining an employee’s eligibility for protected leave.

Minimum Increments of Leave

The new regulations clarify that an employer may not require an employee to take more leave than is necessary to address the circumstances that precipitated the need for leave, and that FMLA leave may only be counted against an employee’s FMLA Entitlement for leave taken and not for time that is worked for the employer.

Airline Flight Crews

The new regulations address the “hours of service criteria” for airline flight crews.  The hours of service criteria will be met if during the previous twelve-month period the airline flight crew employee has worked or been paid for not less than 60% of the applicable monthly guarantee and has worked or been paid for not less than 504 hours (not including commute time, vacation, sick, or medical leave).  An eligible airline flight crew employee is entitled to 72 days for one or more of the FMLA-qualifying reasons other than military caregiver leave and 156 days for military caregiver leave.  Employers must account for FMLA leave for intermittent or reduced schedule leave for airline flight crew employees in an increment no greater than one day.  Employers of airline flight crew employees must maintain certain records, including any records or documents that specify the applicable monthly guarantee for each category of employee to whom the guarantee applies, including any relevant collective bargaining agreements or employer policy documents that establish the applicable monthly guarantee; as well as records of hours scheduled.

Recordkeeping

The recordkeeping requirements under the FMLA were updated to specify the employer’s obligation to comply with the confidentiality requirements of the Genetic Information Non-Discrimination Act (GINA).  Specifically, records created for purposes of the FMLA that contain family medical history or genetic information, as defined in GINA, must be maintained pursuant to the confidentiality requirements of Title II of GINA (such as maintaining genetic information in a separate confidential medical file) that allow for such information to be disclosed according to the FMLA.

FMLA Poster

The new regulations removed the mandatory FMLA poster and optional-use forms from the appendices and instead made them available on the DOL Wage and Hour Division website, as well as at local Wage and Hour district offices.  The updated mandatory FMLA poster must be displayed by covered employers by March 8, 2013, and can be found at the following link: http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf

In light of the updated regulations, employers are advised to review and modify their FMLA policies and employee handbooks to reflect the recent changes discussed above.  If you have any questions or concerns regarding the impact these regulations may have on your company, or if you would like your FMLA policies and employee handbook reviewed by an employment law attorney, please contact Attorney Steven Cerny at (612) 466-0060 or scerny@thompsonhall.com.

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