The Family and Medical Leave Act Turns Twenty

On February 5, the Family and Medical Leave Act (FMLA) turned 20 years old.  Pomp and circumstance aside, the FMLA has certainly been a significant development in employment law over the past two decades. Although the U.S. Department of Labor reports that recent survey results indicate that “85% of employers report that complying with the FMLA is very easy, somewhat easy, or had no noticeable effect,”  and that “misuse of the FMLA is rare,” administering the FMLA’s regulatory framework at the employee level can consume substantial amounts of an employer’s time and resources.

Coinciding with this milestone, the Labor Department has issued a new final rule, which codifies further additions and revi- sions to the FMLA.  A number of these changes implement the substance of Section 565 of the National Defense Authorization Act (NDAA), which expanded FMLA benefits for qualifying exigency and military caregiver leave.  This newsletter highlights some of these changes.

Military Caregiver Leave

To implement the NDAA, the Labor Department’s revised FMLA regulations extend the definition of “covered servicemember” to include “covered veterans.” This expands the application of military caregiver leave for a period of five years after a service- member is discharged or otherwise released from service under conditions other than dishonorable. It is important to note that the time period from October 28, 2009 (when the NDAA was enacted), and March 8, 2013 (the effective date of the new rule), is not considered for the purposes of determining the foregoing five-year window. Given the exclusion of those dates, the present window may extend well beyond five years.

With respect to the above “covered veteran” status, employers may now require that an individual provide details of the separation from service, including: 1) the date of the separation; 2) whether the discharge was dishonorable; and 3) the individual’s branch, rank, and unit at the time of discharge.

The new regulations also expand the definition of a “serious injury or illness” for a covered servicemember to include illnesses and injuries that may have existed prior to active duty, but were aggravated in the line of duty while on active duty.

Moreover, a rule defining a “serious injury or illness” of a “covered veteran” was also promulgated.  The lengthy definition includes a number of technical elements.  While such an injury must have been incurred or aggravated in the line of duty while on active duty, it need not have manifested itself prior to the time that the individual attained “covered veteran” status.

Qualifying Exigency Leave

Qualifying exigency rules have also been expanded to provide additional opportunities for leave under the FMLA.  At the outset, the prior term “covered military member” has been revised to “military  member,” and now includes National Guard and Reserve members in addition to active members of the armed forces.  The term “active duty” was revised to require deployment to a foreign country, and is now called “covered active duty.”

Also, a new category of exigency leave was created.  In addition to the prior eight standards for exigency leave, otherwise eligible individuals are permitted to take qualifying exigency leave under the FMLA to care for a military member’s parent. But the parent must be otherwise incapable of self-care, and the care must also be needed due to the “covered active duty” of a servicemember.

The rules surrounding qualifying exigency leave for “rest and recuperation” were modified as well.  Previously, only five days of leave were permitted for an individual to spend time with a military member on rest and recuperation leave. That period has now been extended to 15 days. Additionally, individuals requesting qualifying exigency leave on this basis can now be required to provide a copy of rest and recuperation leave orders or other documentation of leave.

Minimum Increments of Leave

In 2008, the Department of Labor provided that intermittent FMLA leave could be tracked as an increment no greater than the shortest period that an employer used to account for leave. The maximum leave increment could not be greater than one hour.  The new regulations state that an employee cannot be required to take more leave than necessary, and an employee’s leave entitlement cannot be reduced by more than the amount of leave that was actually taken.

For example, if FMLA leave is tracked in increments of one hour, and an employee is absent for 2½ hours but returns to work immediately thereafter, then only 2½ hours (not three) can be deducted from his or her available leave.

Also, the 2008 FMLA rules provided that if it was physically impossible for an employee to begin or end work in mid-shift (e.g., a flight attendant or “clean room” worker), the entire time an employee was required to be absent could be counted against available leave.  While this principle remains, the comments to the 2013  rules note that this provision should be applied “in only the most limited circumstances.”

New FMLA Poster and Forms

Commensurate with the above revisions to the rules implementing the FMLA, the Labor Department has issued a new FMLA poster and forms, all of which must be used beginning March 8, 2013.  From a procedural standpoint, these documents were moved from the regulations to facilitate ease of future changes. They are now available directly from the Wage and Hour Division’s website (www.dol.gov/whd), and include the following:

• WH-1420: Employee Rights and Responsibilities Under the Family and Medical Leave Act

• WH-380-E: Certification of Health Care Provider for Employee’s Serious Health Condition

• WH-380-F: Certification of Health Care Provider for Family Member’s Serious Health Condition

• WH-381: Notice of Eligibility and Rights & Responsibilities

• WH-382: Designation Notice

• WH-384: Certification of Qualifying Exigency For Military Family Leave

• WH-385: Certification for Serious Injury or Illness of Current Servicemember -- for Military Family Leave

• WH-385-V: Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

What Should Employers Do Now?

Moving forward, employers should immediately begin using the new poster and forms.  Additionally, they should consider evaluating their current policies to assess compliance with the new rules.