Update on the Family and Medical Leave Act

03/08/2013 / Andrew D. Moran

In February of 2013, the Department of Labor (DOL) issued updated Family and Medical Leave Act (FMLA) regulations and forms. The FMLA and its regulations were amended in January of 2009, and many employers updated their policies and forms at that time. In October of 2009, the FMLA was amended once again, but updated regulations and forms were not issued until last month. These new regulations took effect on March 8, 2013, and some of the more significant changes are summarized below: 

  • Military Qualifying Exigency Leave: Under the new regulations, eligible employees are entitled to leave for a “qualifying exigency” arising because the employee’s family member in the Regular Armed Forces, National Guard or Reserves is being deployed to a foreign country. In addition, eligible employees may now take leave to care for a military member’s parent who is incapable of self-care when the care is necessitated by the member’s deployment. The new regulations also increase, to 15 days, the amount of rest and recuperation leave an eligible employee may take to spend with a military member.
  • Military Caregiver Leave: Eligible employees who are family members of covered servicemembers with a “serious injury or illness” may take up to 26 weeks of leave per year to care for them. The new regulations expand the definition of “serious injury or illness” to include injuries or illnesses that existed before the beginning of the servicemember’s active duty and were aggravated during such duty. The definition of “covered servicemember” is expanded to include certain veterans who are undergoing medical treatment, recuperation, or therapy for certain serious injuries or illnesses. 
  • Calculating Intermittent Leave: The new regulations clarify that employers may not require employees to take more leave than necessary to address the circumstances creating the need for leave, and that employers must track FMLA leave using the smallest increment of time used for other forms of leave. In addition, 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. 
  • Airline Flight Crew Employees: The new regulations include specific rules for airline flight crew employees including a special method of calculating leave based upon amounts paid to and hours worked by flight crew employees in the previous 12-month period. In addition, the new regulations specify the number of days of leave to which flight crew employees are entitled.   
  • Recordkeeping: The new regulations update existing FMLA recordkeeping requirements to specify that employers’ recordkeeping must comply with the confidentiality requirements of the Genetic Information Non-Discrimination Act (GINA).
  • FMLA Poster and Optional-Use Forms: The new regulations state that the DOL’s mandatory FMLA poster and optional-use forms are no longer available in the regulations, and instead are available on the Wage and Hour Division website, www.dol.gol/whd, as well as at local Wage and Hour district offices. The FMLA poster, which has been updated in accordance with the new regulations, must be posted by employers on or before March 8, 2013.
Takeaways: Employers are advised to review and revise written FMLA policies to ensure compliance with the new regulations. Once policies have been updated, employers should re-distribute to current employees. Employers should be sure that Human Resources employees involved in leave determinations are familiar with the updated regulations. In addition, employers must update their FMLA poster and certification forms by March 8, 2013.

For more information, contact one of our Employment and Labor Law Attorneys.