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New FMLA Regulations: What Employers Need to Know
Practical Law Legal Update 3-525-0332 (Approx. 4 pages)
New FMLA Regulations: What Employers Need to Know
by PLC Labor & Employment
| Published on 12 Mar 2013 • USA (National/Federal) |
Resources to help employers understand changes in the Department of Labor's (DOL) new Final Rule implementing statutory amendments to the Family and Medical Leave Act (FMLA).
Now that the DOL has issued its Final Rule implementing statutory amendments to the FMLA, employers are bound to have questions about these regulatory changes for their counsel. Key changes in the Final Rule, which went into effect on March 8, 2013, include provisions addressing:
- FMLA leave for airline flight crew employees.
- Military caregiver leave.
- Qualifying exigency leave.
- The DOL's poster and prototype forms.
Here is an overview of these key changes, which are discussed in more detail in Practical Law Company's resources.
Airline Flight Crew Employees
The Airline Flight Crew Technical Corrections Act was signed into law in 2009. It amended the FMLA to establish special eligibility requirements for airline flight crew employees. The DOL's Final Rule implements these changes by:
- Detailing the hours of service eligibility requirements for airline flight crew employees, which are based on credit hours.
- Providing special rules for calculation of leave. Specifically, eligible airline flight crew employees are entitled to:
- 72 days of leave for an FMLA-qualifying reason other than military caregiver leave;
- 156 days of military caregiver leave; and
- have intermittent or reduced schedule leave counted in increments of no greater than one day.
- Including special recordkeeping requirements.
For more information, see Practical Law Company's updated Practice Note, Family and Medical Leave Act (FMLA) Basics: Special Rules for Airline Flight Crew Employees and Standard Document, Family and Medical Leave Policy.
Military Caregiver Leave
The National Defense Authorization Act for Fiscal Year 2010 (NDAA) amended the FMLA's provisions relating to military caregiver leave by extending military caregiver leave to include care for certain veterans and to cover certain serious injuries or illnesses resulting from the aggravation of a preexisting condition. The Final Rule implements these statutory amendments by:
- Amending the definition of "covered servicemember" to include covered veterans who are undergoing medical treatment, recuperation or therapy for a serious injury or illness.
- Defining the term "covered veteran."
- Amending the definition of "serious injury or illness" by:
- expanding the definition as it applies to current service members; and
- including a definition as it applies to covered veterans.
- Amending the certification requirements by:
- expanding the list of health care providers who can provide the certification for a serious injury or illness;
- updating the certification requirements to reflect the changes to military caregiver leave; and
- allowing second and third opinions in limited circumstances.
For more information, see Practical Law Company's updated Practice Note, Military Leave Law: Military Caregiver Leave.
Qualifying Exigency Leave
The Final Rule also implements changes made by the NDAA relating to leave for a qualifying exigency. Specifically, the Final Rule:
- Reflects that family members of members of the regular Armed Forces may be eligible to take qualifying exigency leave, in addition to family members of Reserve and National Guard members. For example, the Final Rule no longer uses the defined term "covered military member" and instead uses the term "military member."
- Requires deployment of the military member to a foreign country, and uses the defined term "covered active duty" instead of "active duty."
- Creates a new qualifying exigency for parental care leave if the military member's parent is incapable of self care.
- Expands qualifying exigency leave relating to a military member's Rest and Recuperation leave from five days to 15 days.
For more information, see Practical Law Company's updated Practice Note, Military Leave Law: Exigency Leave.
New FMLA Poster and Forms
The DOL removed the appendix, which contained the DOL's FMLA poster and prototype forms, from the Final Rule. Instead, the DOL posted its updated poster and prototype forms on its website. The DOL also has issued a new certification form relating to military caregiver leave to care for a veteran with a serious injury or illness. Employers should post the updated notice immediately. In addition, employers that use the DOL's prototype forms should begin using these new forms immediately, and may use these forms to comply with the FMLA's implementing regulations.
Employers should note that use of the forms is optional, and employers may customize these prototype forms or create their own forms, as long as they comply with the FMLA and its implementing regulations. For example, employers may consider adding safe harbor language to certain certification forms to minimize the risk of liability under the Genetic Information Nondiscrimination Act of 2008.
For more information, see Legal Update, Employers Must Post New FMLA Poster and Begin Using Updated FMLA Forms.