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The Department of Labor (DOL) celebrated the Family and Medical Leave Act’s (FMLA) 20th anniversary by issuing updated regulations, optional notice and certification forms, and a new FMLA poster. (http://www.dol.gov/whd/fmla/2013rule/)

The FMLA applies to all public agencies, including state, local and federal employers, local education agencies (including schools), and private sector employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year. Most covered employers are well aware of the FMLA provisions that entitle qualifying employees to 12 weeks of unpaid, job-protected leave in a 12-month period for certain events such as: the birth of a child or the placement of a child for adoption or foster care; to care for a spouse, child, or parent with a serious health condition; or the employee’s own serious health condition.

Less familiar, however, are the FMLA provisions that provide for two kinds of leave related to military service, qualifying exigency leave and military caregiver leave. Those provisions took effect on January 16, 2009.

  • Military caregiver leave: To permit an eligible employee who is the spouse, son, daughter, parent, or next of kin of a current servicemember with a serious injury or illness to take up to 26 weeks of FMLA leave during a single 12-month period to care for the servicemember.
  • Qualifying exigency leave: To allow an eligible employee whose spouse, son, daughter, or parent is a military member to take up to 12 workweeks of leave for qualifying exigencies arising out of the military member’s active duty or call to active duty.

Along with the 2009 amendments to the FMLA, the DOL issued an updated FMLA poster and new and updated optional forms for notice, designation, and certification of FMLA leaves, including forms for the two new military-related leaves. Many employers updated their policies, posters and forms in early 2009 and have not thought about them since.

In late October 2009, the FMLA was amended again by the National Defense Authorization Act (NDAA) of 2010 (click here for our Alert on FMLA’s Military Leave Provisions Expanded). This amendment revised and expanded the new military-related FMLA leaves. However, the DOL’s poster, forms, and regulations had not caught up to the expanded law under the 2010 NDAA — until now.

The DOL recently announced a Final Rule that provides additional FMLA benefits for military personnel and their families. Highlights of the Final Rule changes include:

  • Expansion of military caregiver leave to include certain veterans. The prior regulations provided up to 26 weeks of FMLA leave for eligible employees where: 1) the employee had a military family member (including servicemembers in either the regular Armed Forces, or the National Guard or Reserves, or those on the temporary disability retired list) who had incurred a serious injury or illness in the line of duty; and 2) the employee was needed to care for that servicemember while he/she received treatment, recuperation or therapy for the serious injury/illness.
    • Inclusion of pre-existing injuries or illnesses aggravated in the line of duty on active duty. The Final Rule expands the 26-workweek military caregiver leave provision to include leave to care for covered veterans who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness incurred or aggravated in the line of duty on active duty and that manifested before or after the veteran left active duty.
    • Definition of a covered veteran. Under the new regulations, the definition of covered servicemember is expanded to include veterans who were discharged (not dishonorably) within the five-year period prior to the need for leave to care for that servicemember. Importantly, the period between the NDAA’s enactment in October 2009 and the effective date of these new regulations is not counted in the five-year period determination.
    • Definition of serious injury or illness of a covered veteran. Covered veterans may qualify as having a serious injury or illness for military caregiver leave under one of four definitions set forth in the Final Rule.
  • Expansion of qualifying exigency leave for employees with family members in the regular Armed Forces. When first enacted, eligible employees were allowed to take FMLA leave for “qualifying exigencies” arising because the employee’s family member in the National Guard or Reserves had been notified of a call or order to active duty in support of a contingency operation. These exigencies were generally to help the military family member, who was not a full-time soldier, get ready to deploy on short notice. The Final Rule expands the qualifying exigency leave entitlement to employees whose spouse, son, daughter, or parent serve in the regular Armed Forces, and incorporates the statutory requirement that the military member, whether in the regular Armed Forces or the Reserve components, must be deployed to a foreign country.
  • Certain changes to the categories of qualifying exigency leave, including:
    • Increasing the amount of time an eligible employee may take qualifying exigency leave related to the military member’s Rest and Recuperation from five days (under the old standard) to a maximum of 15 calendar days. This leave may only be used while the military member is on Rest and Recuperation leave and employees must provide a copy of the military member’s leave orders.
    • Creating a new qualifying exigency category — parental leave care — that allows an eligible employee to take FMLA leave for certain activities related to the care of the military member’s parent who is incapable of self-care when the care is necessitated by the military member’s deployment or impending deployment, such as arranging for alternate care for the parent; providing care for the parent on an urgent, immediate need basis; admitting or transferring the parent to a care facility; and attending certain meetings with staff at a care facility.

The FMLA expansion means that qualifying employees can attend a spouse’s farewell or welcome home ceremony without being penalized. Employees can also spend time with family members on leave from active duty service without concern for their jobs.

In conjunction with the Final Rule, the DOL updated its optional certification forms for these two types of military leave and issued a new, separate certification form for military caregiver leave for a veteran. Although employers can choose to use the new FMLA forms, they also may adapt the DOL’s version in creating their own forms, so long as these forms do not require the employee or health care provider to disclose more information than what is required by the FMLA regulations.

While most of the Final Rule pertained to military family leave, the DOL did provide some clarification regarding calculation of intermittent or reduced schedule FMLA leave. The new FMLA regulations clarify that employers must track FMLA leave using the smallest increment of time used for other forms of leave — and in any event, cannot track leave in increments larger than one hour. Also, the regulations provide that an employer cannot require its employees to take more leave than necessary to address their 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. For example, if an employee is on FMLA leave but is taking calls or sending emails from home, the time spent on those work tasks cannot be counted against the employee’s FMLA leave entitlement.

This Final Rule took effect March 8, 2013, so covered employers should be sure to post the new FMLA poster, replace old notice or certification forms, and update FMLA policies to include the new regulations. Employers should also ensure that human resource personnel, managers, and front-line supervisors are aware of these new provisions.

If you have any questions regarding the Family and Medical Leave Act or the new amendments, policy updates, or compliance training, please contact one of our labor and employment attorneys.

Nicole J. Gray

216.348.5418

ngray@mcdonaldhopkins.com

Labor and Employment

We have an impressive team of labor and employment attorneys who specialize in representing management in all aspects of labor and employment law at both the state and federal level. They have significant expertise in counseling clients on labor, employment and human resources issues and representing employers in state and federal courts and administrative agencies in all aspects of labor and employment-related litigation.

For more important legal and business information relating to employers, please visit our blog, the Employer Legal Advocate.

 

 

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