New FMLA Regulations Effective Today - March 8, 2013

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Last month the DOL issued a Final Rule, which takes effect today, March 8, 2013.  While the new regulations may not impact the routine administration of the FMLA for many employers, all employers are required to begin using the FMLA poster today.  The updated poster can be found here.

Most of the substantial changes contained the new regulations involve military caregiver leave for a veteran, qualifying exigency leave for parental care and job-protected leave for airline personnel and flight crews.  The changes also involve, among other things, the disclosure of genetic information covered by the Genetic Information Non-Discrimination Act (“GINA”) obtained by employers for FMLA purposes.
 
Among the significant changes are revisions to the definitions applicable to qualifying exigency leave.   An eligible employee may take FMLA leave for qualifying exigencies arising out a military member’s active duty or impending call or order to active duty.   The term “military member” has been expanded to include members of the National Guard and Reserves and the Regular Armed Forces, and “covered active duty” now requires deployment to a foreign country.   In addition, the new regulations provide parental care as another basis for which eligible employees can take qualifying exigency leave.  This applies to an eligible employee who requires leave to care for a military member’s parent who is incapable of self care when the military member is on covered active duty.
 
Other changes include the expansion of military caregiver leave to include covered veterans.  The definition of a “covered servicemember,” has also been expanded to include “covered veterans who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness.”  Additionally, under the new regulations, the definition of a serious illness or injury of covered servicemember has been expanded to include an illness or injury incurred in the line of duty on active duty in the armed forces, or an illness or injury aggravated in the line of duty. 

Further, the amount of time an eligible employee may take for rest and recuperation qualifying exigency leave has been expanded from 5 calendar days to a maximum of 15 calendar days.

Other Changes

In addition to the modifications noted above, the new regulations include a number of other changes and clarifications to the FMLA.  These changes include details concerning the calculation of varying increments of leave, changes regarding leave for airline flight crew employees and a requirement that FMLA documentation covered by the GINA, such as medical certification forms for family members, comply with the confidentiality requirements of the GINA.

In light of these new regulations, employers covered by the FMLA should make sure that the new FMLA poster is posted immediately and that they review their current FMLA policies to ensure they are consistent with these new changes.