The Department of Labor (DOL) recently announced its revised regulatory agenda, which includes a plan to finalize Family and Medical Leave Act (FMLA) regulations regarding military family and caregiver leave. The expected release of the final regulations is March 2013 - only two months away. Therefore, employers should educate themselves on the proposed changes and take steps to ensure compliance.
The Proposed Rule
In 2009, the FMLA was amended to expand the military family and caregiver leave provisions and to incorporate a special eligibility provision for airline flight crew employees. In February 2012, the DOL issued a Notice of Proposed Rulemaking primarily to implement and interpret the 2009 amendments. The comment period for the proposed rules closed in April 2012.
A DOL fact sheet details the following proposed key changes:
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The extension of military caregiver leave to eligible employees who are family members of recent veterans with a serious injury or illness incurred in the line of duty;
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The creation of a three-part definition for serious injury or illness of a veteran in order to qualify caregivers for the expanded FMLA coverage;
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The extension of military caregiver leave to cover serious injuries or illnesses for both current service members and veterans that result from the aggravation of a pre-existing condition during military service;
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An expansion of the military family leave provisions by extending qualifying exigency leave to include eligible employees with family members serving in the Regular Armed Forces (in addition to the National Guard and Reserves);
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A requirement that for all qualifying exigency leave, the service members (National Guard, Reserves and Regular Armed Forces) must be deployed to a foreign country;
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Details of the special hours of service eligibility requirement for airline flight crew employees, and specific provisions for calculating the amount of FMLA leave used by airline flight crew employees; and
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A clarification of the provision that allows an employer to delay an employee's reinstatement at the end of FMLA leave when it is physically impossible for the employee to return to his or her position mid-shift.
The proposal also seeks to delete a provision that was added to the regulations in 2009 that allows employers to use different increments of FMLA leave at different times of day under certain circumstances. Because the DOL has seen a lot of confusion over this provision, the DOL proposes to replace this provision with the more general principle of calculating FMLA leave usage using the employer's shortest increment of leave at any time.
The DOL seeks to remove the optional use FMLA forms and notices from the regulations, posting them instead to the DOL website, to allow the DOL to change the forms more rapidly - which should accelerate the clearance process when the forms need to be amended.
Lastly, the DOL proposes minor changes to the FMLA forms and notices materials and notes an intention to develop a new certification form for a covered veteran's serious injury or illness.
Proactive Steps Employers Should Take
Because it is anticipated that the final rule will be substantially similar to the proposed rule, employers should:
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Review all policies, forms, notices and practices that will be impacted by the proposed rule. This will ensure that such documents can be updated and reissued to employees in a timely manner once the final rule is released.
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Let supervisors and front-line managers know about the upcoming changes and start preparing training materials.
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Check back with XpertHR to monitor news regarding the final regulations. It is possible that the DOL may release the final regulations prior to March 2013.
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Contact seasoned employment counsel who can assist in editing, creating or reviewing any policies, documents, training materials, etc.
Additional Resources
Employee Leaves > FMLA
DOL's Wage and Hour Division
DOL's FMLA Page and Resources
