On February 6, 2013, commemorating the 20th anniversary of the Family and Medical Leave Act (“FMLA”), the U.S. Department of Labor issued its Final Rule (the “2013 Regulations”) on the FMLA. The 2013 Regulations become effective March 8, 2013.

The 2013 Regulations incorporate — and in some cases, expand — the military leave amendments of 2008. Families of eligible veterans now have the same protections as families of active military service members. The definition of “serious injury or illness” now covers pre-existing conditions aggravated by military service. A new leave category, parental leave, has been added to the qualifying exigency leave. The period of leave to be granted for a service member’s rest and recuperation has been extended from five to 15 days. In addition, private health care providers, not affiliated with the military healthcare system, are now authorized to issue FMLA certifications for military-related leave.

Listed below is a breakdown of changes in the 2013 Regulations and a list of next steps for employers.

Qualifying Exigency Leave

The Qualifying Exigency Leave grants eligible employees with a spouse, son, daughter or parent in any branch of the Armed Forces leave to handle contingencies prompted by a relative’s military service. The 2013 Regulations retain the maximum of 12 workweeks allowed for qualifying exigency leave. Changes include:

• The leave has been expanded to cover employees with relatives in the regular Armed Forces. The 2008 Regulations applied only to members of the National Guard and Reserves.
• “Active duty” is defined to require deployment to a foreign country.
• The 2013 Regulations create a new qualifying exigency category: Parental leave. An eligible employee may take leave to care for a military member’s parent who is incapable of self-care.
• The time allowed for qualifying exigency leave for rest and recuperation is now 15 days (an increase from five days under the 2008 Regulations).

Military Caregiver Leave

• The 2013 Regulations retain the 26 workweeks of leave for eligible workers to care for a current service-member with a serious injury or illness.
• The 2013 Regulations expand the definition of covered service-member to include “covered veterans” who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness.
• A “covered veteran” is an individual discharged or released under conditions other than dishonorable at any time during the five-year period preceding the eligible employee’s FMLA leave.
• To protect the military caregiver leave entitlement, the 2013 Regulations exclude from the five-year eligibility period the time between the enactment of 2008 Regulations and the final rule’s effective date.
• “Serious injury or illness” includes injuries or illnesses that existed before the service-member’s active duty, which were aggravated by the military service.
• Eligible employees must still present documentation to their employers supporting the need for qualifying exigency leave.
• The 2013 Regulations now allow the certification for military caregiver leave to be completed by health care providers who are not affiliated with the Department of Defense or the Department of Veterans Affairs or the Department of Defense TRICARE Network. If the certification is provided by a non-affiliated health care provider, the employer is authorized to request a second and third opinion.
• To calculate FMLA eligibility for an employee who has missed work due to USERRA-covered military service (which includes active duty and reserve), employers must credit the employee with all periods of absence for USERRA-covered service in calculating eligibility criteria.

Changes to FMLA Eligibility Rules for Airline Flight Crew Employees

The 2013 Regulations provide that airline flight crew employees are eligible for FMLA leave if they have worked (or been paid) for at least 60% of the applicable total monthly guarantee and have worked (or been paid) for at least 504 hours during the prior 12 months. Airline employees who are not flight crew employees must meet the standard eligibility standard: 1,250 hours of service in the prior 12 months.

Intermittent FMLA Leave under the 2013 Regulations

The 2013 Regulations clarify that the minimum increment of FMLA leave is the shortest increment for timekeeping allowed by the employer for other types of leave; in no event may the increment be greater than one (1) hour. The employer cannot charge the employee for more leave than is actually needed.

New Forms

The U.S. Department of Labor removed the FMLA forms from the 2013 Regulations so that it could amend the forms as needed without having to go through the formal notice requirements. The forms are available on the DOL website.

Next Steps for Employers:

• Update your FMLA policies.
• Replace your FMLA posters.
• Review and use the updated FMLA forms.
• Make sure leave administrators are familiar with the new changes.

For a summary of changes, see the U.S. Department of Labor side-by-side comparison chart. Posters incorporating the new regulations are also available through the DOL website, in both English and Spanish.

We invite you to contact any member of our Employment Law group for additional information regarding the new FMLA regulations or questions regarding an employment law matter.

This Alert was prepared for the clients and friends of Sugarman, Rogers, Barshak & Cohen, P.C. It is provided for educational and informational purposes only and is not a substitute for professional advice on your specific legal situation.

Related People

Andrea Studley Knowles

Partner

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Christine M. Netski

Managing Partner

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