On February 6, 2013, the U.S. Department of Labor (DOL) published new regulations that implement the federal Family and Medical Leave Act (FMLA) amendments made by the National Defense Authorization Act for FY 2010 (2010 NDAA). This law entitles more employees to family and medical leave under the FMLA. The regulations became effective March 8, 2013.
Among other things, eligible employees now are entitled to take leave to care for a military service member or veteran who has a serious injury or illness as a result of military service or that was aggravated as a result of military service.
Military Service Member Exigency Leave
The 2010 NDAA expanded the FMLA's military leave provisions. That law permits the family members of regular Armed Forces members, in addition to the family members of Reserve and National Guard members, to take up to 12 weeks of job-protected leave in a 12-month period for a "qualifying exigency" arising out of the active duty or call to active duty status of a spouse, son, daughter or parent. The term "qualifying exigency" covers a broad range of events and activities, including short-notice deployment, childcare and school activities, financial and legal arrangements, rest and recuperation, post-deployment activities, counseling and military events and related activities.
The new regulations clarify that for purposes of exigency leave related to childcare and school activities, the military member must be the spouse, parent or child of the employee seeking leave, but the child for whom the leave is sought need not be the child of the employee requesting leave. For example, an employee that is the mother of a military member is eligible for leave to deal with the childcare needs of the military member's child (his or her grandchild). The new regulations also expressly provide for exigency leave for parental care for a military member's parent or a person that stood in loco parentis when the parent is incapable of self-care and the need for leave arises out of the military member's active duty or call to active duty. For example, exigency leave for the spouse of a military member may be available to arrange for alternative care for a parent of a military member who is called to active duty where the military member would otherwise have provided the required care.
Before the 2010 NDAA, exigency leave was limited only to the families of Reserve and National Guard members. The 2010 NDAA extended exigency leave to eligible employees with family members serving in the regular Armed Forces, but it added the requirement that the military member (whether in the regular Armed Force, Reserve or National Guard) must be deployed to a foreign country. The new regulations incorporate these changes, and further provide that deployment in international waters is considered deployment to a foreign country.
The new regulations also expand from 5 to 15 calendar days the maximum amount of FMLA leave an eligible employee may take to spend with a covered service member during rest and recuperation periods. The allowable length of the leave is tied to the length of the military member's rest and recuperation leave.
Military Caregiver Leave
The 2010 NDAA extended FMLA military caregiver leave to permit an employee to take leave to care for certain veterans, in addition to active members of the Armed Forces. It also extended such leave to cover serious injuries or illnesses that areaggravated by or during the service member's active duty, rather than just those injuries or illnesses initially incurred during active duty. Military caregivers may take up to 26 workweeks of leave in a 12-month period to care for a covered service member or veteran with a serious service-related injury or illness. This leave may be taken for up to five years after the service member leaves the military with other than a dishonorable discharge.
The 2010 NDAA required the DOL to define what constitutes a "serious injury or illness of a veteran." Because of the delay in implementation, the regulations expressly state that the period between October 28, 2009, the date the FY 2010 NDAA was enacted, and March 8, 2013, the effective date of the regulations, may not be counted when considering the five-year eligibility period for such leave.
The DOL has adopted four alternative definitions of "serious injury or illness" for service members and veterans. These definitions are materially different that how that phrase is defined for purposes of leave for the employee’s own serious health condition or the serious health condition of a parent, spouse or child (that is not connected with military service).
The first definition states that a covered serious injury or illness includes an injury or illness that was incurred or aggravated in active duty, rendered the service member unable to perform the duties of his or her office, grade, rank or rating, and is a continuation or manifestation of such injury or illness after the service member was discharged.
The second definition applies to service members with a physical or mental condition that have received a Department of Veterans Affairs Service Related Disability Rating (VASRD) of 50 percent or higher, provided this rating is at least in part based on the condition that has created the need for leave. The DOL believes that this rating reflects a condition that substantially impairs a veteran's ability to work without requiring that the veteran be totally disabled under the U.S. Department of Veterans Affairs' (VA) regulations.
The third definition applies to service members or veterans who do not satisfy the first two definitions and who obtain medical care outside of the VA system. So the third definition covers a physical or mental condition that either: (1) substantially impairs the veteran's ability to secure or follow a gainful occupation due to the service-related disability; or (2) would do so absent treatment.
The fourth definition provides that an injury, including a psychological injury, that led to a veteran's enrollment in the VA's Program of Comprehensive Assistance for Family Caregivers will be considered to be a "serious injury or illness."
Military caregiver leave may be taken in a single 12-month period that begins on the first day the employee takes leave and ends 12 months later. In the regulations, the DOL explains that as long as the leave begins at any point within the five-year eligibility period from the end of military service, it can extend beyond the five-year period. The regulations also make it clear that a military caregiver may take leave for a service member when she or he is on active duty, as well as for the same service member when she or he subsequently becomes a veteran.
The regulations allow employers to seek second and third opinions at the employer's expense, but only if a certification in support of military caregiver leave is provided by a healthcare provider that is not affiliated with the Department of Defense, the VA or TRICARE.
Airline Flight Crew FMLA Entitlement
The Airline Flight Crew Technical Corrections Act (AFCTCA) allows more airline employees to avail themselves of leave under the FMLA. The AFCTCA was intended to close a perceived loophole in the FMLA's hours of service requirements for pilots and flight attendants whose unconventional work schedules often failed to meet the FMLA's requirement that an employee have worked at least 1,250 hours during the previous 12-month period. Some courts had concluded that the time pilots and flight attendants spent on the job between flights and on mandatory standby duty did not count as "hours worked."
The AFCTCA provided that all hours pilots or flight attendants work or for which they are paid count toward the FMLA's minimum hours calculation. Flight crew employees meet the FMLA's hours of service requirement if they have worked or been paid for not less than 60 percent of the applicable total monthly guarantee and have worked or been paid for not less than 504 hours during the 12 months prior to the start of their leave.
The regulations provide that employers may require flight crew members to use intermittent or reduced-schedule leave in increments as large as, but no greater than, one day. Because of their unique and widely varying scheduling patterns, flight crews are entitled to 72 days of leave in any 12-month period for FMLA-qualifying leave other than military caregiver leave, and 156 days of leave during any single 12-month period for military caregiver leave. The regulations also impose special recordkeeping obligations on employers of flight crew employees.
Additional Changes to the FMLA Regulations
The DOL also made several language changes to clarify certain provisions of the FMLA regulations. For example, employers still may require employees to take FMLA leave in different increments at different times of the day under certain circumstances. But such a rule also must apply to all other leaves taken during the same time of day. Other language additions remind employers that they may only calculate FMLA leave using the shortest increment of time they use to measure other leaves (provided that it is not more than one hour), and reinforce the point that employers may not require employees to use more FMLA leave than is necessary to address their condition.
The DOL chose not to narrow a provision added by the 2009 regulations that permits an employer to delay reinstatement where it is physically impossible for the employee to return to his or her job in mid-shift (for example, if the employee works in a locked clean room). It did, however, add language emphasizing that this exception is limited to the period of time when an employer is physically unable to permit the employee to return to work.
The DOL removed from the regulations appendices the model FMLA forms and notices. The forms will continue to be available on the Wage and Hour Division's website, where the DOL believes they can be updated more readily. The DOL also released a new, optional certification form for military caregiver leave for veterans, made minor changes to the other military caregiver certification form, the qualifying exigency certification form, and the Notice of Eligibility and Rights & Responsibilities form. It did not alter the other forms.
Notably, the DOL did not add to the forms the "safe harbor" language that employers should use in connection with medical inquiries to avoid liability under the Genetic Information Nondiscrimination Act (GINA). However, the new regulations make clear that FMLA recordkeeping must comply with GINA’s recordkeeping requirements to the extent that genetic information is contained in FMLA-related records. FMLA-related records already should be segregated from an employee’s general personnel records and should be limited in who has access to those records (in the same way an employee’s medical records should be treated). So this obligation should not impose additional burdens on employers.
The DOL has provided fact sheets, a set of frequently asked questions and additional guidance on these changes on its webpage.
What Employers Should Do Now
The principal obligations explained in these regulations have already been part of the FMLA itself. The only truly new requirements relate to leave to care for a service member's or veteran’s serious injury or illness arising from or aggravated by military service. But there are important nuances in the regulations, and their issuance provides a good opportunity for employers to ensure that their FMLA policies, practices and training are fully up to date. As a result, employers should take this opportunity to:
review your FMLA policies to ensure that the military exigency leave and military caregiver leave provisions are incorporated and accurately reflect current law
train human resources employees and managers on the military caregiver provisions of the FMLA, particularly the extension of military caregiver leave for certain veterans that became available as of March 8, 2013
ensure that the rest of your FMLA policies and procedures are compliant
continue to ensure that your FMLA-related medical inquiries — including medical certifications — are accompanied by appropriate GINA "safe harbor" language, customized as needed to the particular inquiry