by Martha J. Cardi, J.D. and Megan G. Holstein, J.D.

In January 2012 the U.S. Department of Labor (DOL) introduced proposed regulations to implement and interpret the 2009 amendments to the federal Family and Medical Leave Act (FMLA).  The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons.   Recently, the DOL’s revised regulatory agenda was updated to list March 2013 as the release date for these final regulations.  No exact date in March was given.

The FMLA was amended twice in 2009, first by the National Defense Authorization Act for Fiscal Year 2010 (NDAA FY 2010, effective in October 2009), and then by the Airline Flight Crew Technical Corrections Act (AFCTCA, effective in December 2009).

The DOL implements new regulations for laws within its authority by publishing a Notice of Proposed Rulemaking (NPRM). The proposed regulations are then open for public comment and are ultimately finalized by the DOL after taking the public comments into consideration.  Click here for Reed Group’s prior article summarizing the 2009 FMLA amendments and the DOL’s 2012 NPRM.

What to expect with the March 2013 Final FMLA Regulations

The Unknowns:

The DOL has not indicated whether it will enact all of the changes contained in the NPRM or if it will make changes to the NPRM in response to public comments received.  Most commentators expect that the DOL will not make significant changes to the FMLA regulations beyond those proposed in the NPRM, but this is not guaranteed.  In addition, many are expecting changes to the DOL-approved FMLA forms, especially the military care-giver form.  No such changes were part of the NPRM other than removing the forms from the regulations, thus allowing easier changes to the forms without going through the public comment process.

As a reminder, the major provisions of the NPRM proposed regulations include:

Military Caregiver Leave:

  • The extension of military caregiver leave to eligible family members of recent veterans with a serious injury or illness incurred in the line of duty;
  • providing a new, flexible, three-part definition for serious injury or illness of a veteran;
  • expanding the type of health care providers who can provide a medical certification to include providers who are not affiliated with the military; and
  • the extension of military caregiver leave to cover serious injuries or illnesses for both current servicemembers and veterans that result from the aggravation during military service of a preexisting condition.

Qualifying Exigency Leave:

  • Including a new foreign deployment requirement for qualifying exigency leave for the deployment of all servicemembers (National Guard, Reserves, Regular Armed Forces); and
  • expanding the amount of FMLA leave an eligible employee may take to spend time with a military family member during rest and recuperation from 5 days to 15 days.

Airline Flight Crew FMLA Eligibility Rules:

  • Adding specific provisions for calculating the amount of FMLA leave used by airline flight crew employees.

Intermittent and Reduced Scheduled Leave

  • Emphasizing time increments to ensure that an employee’s FMLA leave entitlement is not reduced beyond the amount of leave actually taken; and
  • revising the physical impossibility language of 29 C.F.R. § 825.205(a)(2) to emphasize that the physical impossibility provision be applied in only the most limited circumstances.

What Employers Should Do Now

  • Comply with the NDAA FY 2010 and AFCTCA amendments – most of them went into effect in 2009 even though they did not have supporting and interpretive regulations.
  • Review the proposed rules and the DOL’s website  and FAQs regarding the proposed rules and be on your toes to implement these or similar changes come March. The DOL is likely to issue new recommended medical certification and qualifying exigency forms.
  • Contact Reed Group if you have questions about this or any other leave issue.