The U.S. Department of Labor recently issued new regulations expanding coverage under the Family and Medical Leave Act for certain classes of employees. The changes expand coverage for military family leave, leave for caregivers of adult children with disabilities and airline crew personnel. These regulations go into effect on March 8, 2013.

Changes to Military Family Leave

Since 2009, the FMLA has provided that employees whose family members are deployed to military service are eligible for up to 12 weeks of leave for certain “qualifying exigencies,” such as short notice deployment; military events and related activities; childcare and school activities; financial and legal arrangements; counseling; rest and recuperation; and post-deployment activities. In addition, FMLA leave has been available for employees to care for a family member with a seriously illness or injury in connection with current military service. These leaves continue and the following are the key changes and clarifications under the new regulations:

Exigency leave is now available for an employee to care for a military family member’s parent, if that parent is incapable of self-care.

The scope of exigency leave to care for military service members has been clarified to include service members of the National Guard and Reserves and the regular Armed Forces.

Military caregiver leave has been expanded to cover family members to care for veterans with qualifying serious injuries or illnesses, in addition to previously covered current service members. The definition of “covered service member” has been broadened to include veterans who were members of the Armed Forces within the five-year period preceding the date of the service member’s medical treatment, recuperation, or therapy.

The maximum amount of exigency leave to spend time with a military family member who is on short-term rest or recuperation leave has been increased from five to 15 calendar days.

Changes to Leave for Caregivers of Adult Children with Disabilities

The U.S. Department of Labor has also clarified the definition of “son or daughter” under the FMLA and expands the circumstances in which employees may take leave to care for adult children with disabilities who are 18 years of age or older. The key changes and clarifications to the regulations include:

• The definition of “disability” that applies in determining whether an adult child has a disability that qualifies his or her parent for FMLA leave has been expanded and is now interpreted under the Americans with Disabilities Act Amendments Act of 2008.
• The age of a son or daughter at the onset of his or her disability is not relevant in determining a parent’s entitlement to FMLA leave.
• Two types of leave may be available to parents caring for an adult son or daughter whose disability commenced during military service: military caregiver leave of up to 26 weeks in a single 12-month period and leave for caregivers of adult children with disabilities of up to 12 weeks in subsequent years.

Additional Changes

The new regulations also clarify the methods for calculating an employee’s FMLA leave time:

• An employer may not require an employee to take more leave than necessary to address the circumstances that caused the need for leave.
• An employer must account for FMLA leave in an increment no greater than the smallest increment the employer uses to account for any other forms of leave, so long as it is not greater than one hour.
• Application of the existing “physical impossibility rule” has been limited. The physical impossibility rule permits an employer to delay reinstatement where it is physically impossible for the employee to return to his or her job in the middle of a shift. In the past, employers have misinterpreted the concept of physical impossibility to apply to circumstances where it is merely inconvenient to reinstate the employee mid-shift, the new regulations state that it shall apply solely to situations in which it is truly physically impossible to return the employee to work.

Actions to be Taken by Employers

To ensure that company policies comply with the changes to the FMLA, employers should review and revise their employee handbooks and written policies that cover FMLA leaves. As of March 8, 2013, employers will also be required to use new FMLA certification forms and post a new FMLA poster, copies of which are available on the Department of Labor’s website at http://www.dol.gov/WHD/fmla/2013rule/index.htm.

Bill Kirshenbaum is a Partner at Morris Polich & Purdy LLP
wkirshenbaum@mpplaw.com; 213-417-5317