Employment And Labor Alert: FMLA Changes Go Into Effect Next Friday, March 8

by Stinson Leonard Street

The U.S. Department of Labor (DOL) recently issued new Family and Medical Leave Act (FMLA) regulations that go into effect on March 8, 2013. These regulations include revisions to the required postings and optional use forms, and may require changes in your timekeeping system for tracking and calculating intermittent FMLA leave. There are additional substantive changes related to military exigency and caregiver leave, as well as to airline flight crews. To keep you up to date on this detailed law, we've summarized some of the important changes below:

Updated FMLA Poster

The FMLA poster has been updated to reflect the changes made by the regulations. All covered employers are required to post the new poster by March 8, 2013 (although it can be posted immediately). It is available here.

Updated Optional Use Forms

As a result of the new regulations, the DOL updated some of its optional use forms. All of the DOL's optional use forms, including the updated versions, are available here.

Tracking Intermittent Leave

The new regulations clarify that employers may not require employees to take more leave than is needed to address the circumstances requiring leave. Specifically, the regulations state that employers must track FMLA leave using the smallest increment of time used for other forms of leave with a maximum increment of one hour for tracking intermittent leave—even if the employer normally requires that vacation or sick time be taken in full-day increments—and that 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.

For example, if an employee arrived a half hour late to work due to an FMLA-qualifying condition and the employer put the employee to work immediately—waiving its normal one-hour increment policy—only the amount of leave actually taken by the employee could be counted against the FMLA entitlement.

Military Qualifying Exigency Leave

The new regulations make it clear that employee family members of Armed Forces, National Guard and Reserve members can qualify for exigency leave, but only when the employee's spouse, child or parent is deployed to a foreign country. In addition, leave in order to care for a qualifying military member's parents necessitated by the military member's active duty status is now qualifying exigency leave. Finally, the new regulations increase the amount of time an eligible employee may take with a military member on rest and recuperation leave from 5 to 15 days.

Military Caregiver Leave

The FMLA allows family members of seriously injured or ill covered servicemembers to take up to 26 weeks of leave per year to care for them. The term “serious injury or illness” has been expanded (for current servicemembers) to include pre-existing injuries that were aggravated during active duty. The new regulations also expand the definition of “covered servicemember” to include veterans undergoing treatment, recuperation or therapy for a serious injury or illness—the definition of “serious injury or illness” is similar to that used for current servicemembers.

Covered veterans have been defined as veterans discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran, excluding the period between October 28, 2009, and March 8, 2013, from the five-year calculation (essentially tolling the five-year period for veterans discharged between these dates).

Airline Flight Crews

Specific rules for airline flight crews have been added to more accurately reflect the realities of the airline industry. The new regulations specify the unique way in which the hours of service eligibility requirement is to be calculated for flight crews, delineate the number of leave days flight crews are entitled to, and create special recordkeeping requirements for flight crew employers.


The new regulations specify that an employer's FMLA recordkeeping must comply with the confidentiality requirements of the Genetic Information Non-Discrimination Act (GINA).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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