New FMLA Regulations Issued in Final Form

by Miller & Martin PLLC

Aside from the new poster requirement, the other change in the new regulations which is anticipated to have the most widespread effect on employers is the “clarification” of the increments in which employers can require employees to use intermittent FMLA leave.  The 2008 regulations had been interpreted to allow employers to require that intermittent FMLA leave be taken in one-hour increments, even if smaller increments were used for other types of leave such as sick leave or vacation.  The new regulations take great pains to explain that this one-hour idea was intended to be the maximum increment employers could require employees to use, such that they must use the smallest increment they use for ANY other type of leave to calculate intermittent FMLA leave. 
Employers also must be careful not to allow employees to work during any period they are counting toward an employee’s FMLA leave using this “smallest increment of any other type of leave” concept.  So, for example, if an employer uses half-hour increments to measure sick leave use and full hours to measure vacation use, the employer would only be permitted to use half-hour increments to count intermittent FMLA leave.  If an employee is only 15 minutes late for work due to an FMLA-qualifying situation, this same employer would have to make sure the employee sits in the break room, etc. and does not perform any actual work for the half-hour it is going to count against him/her as FMLA leave based on this 15-minute late appearance.  (The employer also may choose to let the employee begin work and only count 15 minutes against his/her FMLA leave without having to do so for every employee or otherwise waiving its ability to use the half-hour increments to measure intermittent FMLA leave generally.  Such “variations” should not be used in a discriminatory or retaliatory manner however.)
The new regulations also make it clear that the “physical impossibility” rule, which was part of the 2008 regulations, may only be applied “in the most limited circumstances,” such as when it is “physically impossible” for a flight attendant to get on the plane to perform his/her job if he/she must miss the first few hours of the shift due to an FMLA-covered situation.  In this example, the “physical impossibility” rule would allow the employer to count the full day of work (and possibly multiple days) against the flight attendant’s FMLA leave entitlement (if the flight the attendant was scheduled for was international or otherwise would involve more than one day of travel).
The substance of the other new regulations can be summarized as follows:
  • The definition of a “covered veteran” for purposes of FMLA military caregiver leave has been limited to those who were discharged or released under conditions other than dishonorable five or less years prior to the date the employee’s military caregiver leave is requested to begin.
  • The definition of a “serious injury or illness of a covered veteran” is now any of the following:
    (1)  A continuation of a serious injury or illness that was incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the servicemember unable to perform the duties of the servicemember’s office, grade, rank, or rating; OR
    (2) A physical or mental condition for which the covered veteran has received a VA Service Related Disability Rating (VASRD) of 50 percent or greater and such VASRD rating is based, in whole or in part, on the condition precipitating the need for caregiver leave; OR
    (3) A physical or mental condition that substantially impairs the veteran’s ability to secure or follow a substantially gainful occupation by reason of a disability or disabilities related to military service or would do so absent treatment; OR
    (4) An injury, including a psychological injury, on the basis of which the covered veteran has been enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.
    There is a new medical certification form – WH-385-V – which has been created specifically for veteran care leave.  It is also available for free on the DOL website, on the FMLA Overview page under “Forms.”
  • The list of acceptable health care providers who can complete a medical certification form relating to a request for military caregiver leave has been expanded to include all those who can complete such certifications for “regular” FMLA leave, as well as others who are affiliated with the Department of Defense, the Veterans’ Administration or TRICARE.
  • The amount of time allowed for FMLA “qualifying exigency leave” specifically relating to a servicemember’s “Rest and Recuperation” leave (R&R) has been extended to 15 rather than 5 days.
  • Another category of “qualifying exigency leave” has also been added for parental leave to care for the parent of a military member who is incapable of self-care when such care is necessitated by the military member’s covered active duty (i.e., the military member usually provides this care for his/her parent, but cannot due to his/her call to active duty).
Note that similar to the “child care” provisions concerning “qualifying exigency leave,” this new type of “parental care leave” cannot be used to provide actual day-to-day care for the military member’s parent while the military member is on active duty.  It can only be used to “make arrangements for such care” – such as helping to move the parent into a nursing home or assisted living facility, making arrangements for this or other forms of regular care, attending follow-up meetings relating to the same, and providing temporary care on an immediate need basis during a transition period while such care regular care arrangements are being finalized.
The new regulations also incorporate the 2009 changes to the FMLA, specifically,
1.  that “qualifying exigency leave” is available to family members of members of the Regular Armed Forces (not just the Reserves, retired military members and members of the National Guard who are called into active service);
2.  that qualifying exigency leave is only available if the military member is deployed to a foreign country; and
3.  that a “serious illness or injury” for purposes of military caregiver leave may be either incurred or aggravated in the line of active duty.
They also include reference to a position held by the DOL since 2002, that all periods an employee who is also a military member takes off work for military service covered by USERRA shall count toward that employee’s period of employment and service for purposes of determining his/her eligibility for FMLA leave.
This alert does not include a summary of the detailed provisions concerning airline flight crew employees in this alert, as their applicability to our readers is anticipated to be limited.  However, anyone who would like additional information concerning these sections of the new regulations may contact Stacie Caraway for a summary of them.
As always, those having any questions concerning this alert, or any other FMLA or general labor and employment law topic should feel free to contact Stacie Caraway or any other member of our Labor & Employment Law Practice Group.

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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