New FMLA Regulations Effective March 8 – Happy Anniversary to the FMLA

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

Today, on the 20th anniversary of the signing of the Family Medical Leave Act (FMLA), the U.S. Department of Labor (DOL) issued the Final Rule implementing the long-anticipated revised FMLA regulations, based on the proposed regulations issued by the DOL in 2012. These updated regulations will become effective March 8, 2013.

The DOL identifies several major provisions of the Final Rule on its website, including:

Care of Seriously Ill or Injured Servicemember

  • Defining covered veterans as those discharged or released (under conditions other than dishonorable) up to five years prior to the date the employee’s military caregiver leave begins.
  • Creating a flexible definition for serious injury or illness of a covered veteran that includes four alternatives, only one of which must be met.
  • Permitting eligible employees to obtain certification of a servicemember’s serious injury or illness (both current servicemembers and veterans) from any health care provider as defined in the FMLA regulations, not just those affiliated with the DOD, VA, or TRICARE networks (as was required under the 2009 regulations).
  • Requesting a second or third opinion of a current servicemember’s serious injury or illness is now available to employers, but only when the certification is provided by a non-military-affiliated health care provider.

Qualifying Exigency

  • Extending qualifying exigency leave to eligible employees who are family members of members of the Regular Armed Forces.
  • Adding the requirement that all military members to be deployed to a foreign country in order to be on “covered active duty” under the FMLA.
  • Increasing the amount of time an employee may take for qualifying exigency leave related to the military member’s Rest and Recuperation (R&R) leave from five days to up to 15 days.
  • Creating an additional qualifying exigency leave category for parental care leave to provide care necessitated by the covered active duty of the military member for the military member’s parent who is incapable of self-care.

Flight Crews

  • Incorporating the statutory hours of service eligibility requirements for airline flight crew employees for FMLA leave.
  • Creating a unique method of calculation of leave for airline flight crew employees.
  • Establishing that FMLA leave for intermittent or reduced schedule leave usage, taken by airline flight crew employees, must be accounted for using an increment no greater than one day.

Other

  • Adding clarifying language to the FMLA provision concerning calculating minimum increments of leave. No substantive changes were made to this provision in the current regulations, but the 240 pages of Supplementary Information preceding a full republication of the regulations provide substantial guidance.
  •  Adding clarifying language to the FMLA provision concerning physical impossibility of ending or starting work mid-shift.  No substantive changes were made to this provision in the current regulations, but again the Supplementary Information is very helpful.

The DOL’s website also contains helpful information about the new regulations, including a side-by-side comparison of the current FMLA regulations and the new regulations, FAQs, and the Final Rule itself.

Reed Group is analyzing the new regulations and will issue detailed information in the coming days, discussing more specifically how the new FMLA regulations will impact employers, Reed Group’s customers, Reed Group’s signature software, LeavePro™, and Reed Group’s online leave of absence reference tool, Leave of Absence Advisor™.  All of Reed Group’s services and software will be compliant with the new FMLA regulations by the March 8, 2013 effective date.

What Employers Should Do Now

  • Comply with the National Defense Authorization Act (NDAA) FY 2010 and Airline Flight Crew Technical Corrections Act (AFCTCA) statutory amendments to the FMLA – most of them went into effect in 2009 even though they did not have supporting and interpretive regulations.
  • Review the DOL’s website  and FAQs regarding the Final Rule and prepare to implement relevant changes by March 8.
  • Contact Reed Group if you have questions about this or any other leave issue.
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