Slow Creep of FMLA Expansion Continues

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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The U.S. Department of Labor (DOL) used the Family and Medical Leave Act’s (FMLA) 20th   anniversary to issue federal regulations implementing statutory changes to the law, a new poster, and three new certification forms:

  • Certification of Qualifying Exigency for Military Family Leave (Form WH-384)
  • Certification for Serious Injury or Illness of a Current Servicemember for Military Family Leave (Form WH-385)
  • Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (Form WH-385-V)

The statutory changes were designed to increase coverage under the FMLA for military families and allow airline attendants to avail themselves of the Act’s protection. The regulations responded to Congress’s message and the DOL used them as an opportunity to push their agenda even further.

The FMLA is one of the most invasive and complicated statutes for employers. Those striving for perfect compliance are often driven to befuddled frustration. Ironically, a law designed to protect migraine headaches has created its fair share for employers. The DOL touts the FMLA as a raging success, however, for American families. Clearly, the law is here to stay, and it will continue to grow in coverage as we move forward.

At its core, the FMLA grants employees the right to take leave from work to deal with family and medical issues without fear of losing their job because of the leave. Over the past several years, we have seen both Congress and the DOL increase the scope of who may take leave. First, as the wars in Iraq and Afghanistan continued to slowly boil, with little hope of extracting ourselves, Congress created two new types of leave: military caregiver leave and qualifying exigency leave. Military caregiver leave was originally enacted to give leave to care for current members of the military who were injured. Qualifying exigency leave was created to make sure that the families of our National Guard and Reserve members could take leave if our stand-by forces were called to duty.

A few years ago, Congress amended the FMLA to broaden coverage for both military caregiver leave and qualifying exigency leave. As to military caregiver leave, the statute was amended to allow families to care for injured soldiers who are both actively serving or who have been discharged within the past five years. Congress also extended qualifying exigency leave to apply to any immediate family member of a soldier who is serving in a foreign country. This meant that the law now applied to regular Army as well, or any other branch of the U.S. Armed Forces, for that matter. At the same time, Congress sought to amend the law to provide added protection for airline attendants, as those individuals found themselves excluded from the FMLA on a regular basis because of the way eligibility was calculated.

The DOL has finally implemented the new statutes by issuing regulations that will be effective March 8, 2013. If you want to see a side-by-side comparison of the current and final regulations, click here. The changes are summarized as follows: 

Qualifying Exigency Leave

  • Qualifying exigency leave applies to employees who have a spouse, son, daughter, or parent in any branch of the U.S. Armed Forces if that family member is deployed in a foreign country.
  • The leave can be used for all the reasons described in the 2009 regulations, but also to care for the military member’s parent who may be incapable of self-care.
  • The regulations expanded the amount of leave an employee can take to be with their family member while on rest and recuperation leave. The amount of leave has now been expanded from five days to a maximum of 15 calendar days.

Serious Illness or Injury of a Covered Service Member

The regulations implement the increase in coverage to veterans who are less than five years removed from their service in the military. Importantly, both the statute and the regulations now make clear that the injury or illness can be preexisting and merely aggravated by military service. Also, the injury or illness does not need to manifest itself during the individual’s service in the military, as long as it is deemed to have been caused by or aggravated by military service. The injury or illness can be proven in one of several ways:

  • It is tied to an injury or illness that was incurred or aggravated in the line of duty, while on active duty, and it rendered the individual unable to perform his or her duties;
  • The individual’s U.S. Department of Veterans Affairs (VA) Service Disability Rating is at 50 percent or greater;
  • The mental or physical condition substantially impairs the individual’s ability to obtain gainful employment; or
  • The VA enrolls the individual in the Department of Veteran Affairs Program of Comprehensive Assistance for Family Caregivers.

In terms of proof, the certification can now be completed by any healthcare provider but if the physician is not a military doctor or someone treating on behalf of the military (such as TRICARE), then the employer has a right to a second opinion. Also needed for proof of eligibility, are proof of enrollment in the Veterans Affairs Program of Comprehensive Assistance for Family Caregivers, proof of family relationship, and discharge paperwork.

Flight Crews

In addition to the provisions addressing military caregivers, the final rule also modifies the work hour annual threshold for airline flight crew members to qualify for FMLA leave. Under the final rule, a flight crew employee will meet the FMLA hours-of-service eligibility requirement if he or she has worked or been paid for not less than 60 percent of the applicable total monthly guarantee and has worked or been paid for not less than 504 hours during the previous 12 months. Airline employees who are not flight crew members continue to be covered under the general hours-of-service eligibility standard that requires 1,250 hours of service in the previous 12 months.

Other Changes

Finally, the DOL did make several changes to section 825.205, which addresses the measurement of increments of leave when an employee takes intermittent or reduced schedule leave, but the agency did not include in the final rule some of the changes that it had proposed or considered. For example, while it appeared that the DOL would make certain changes to section 825.205(a)(2), the agency did not eliminate the physical impossibility rule that allows an employer to count the entire period an employee is forced to be absent as FMLA leave when an employee uses intermittent leave and it is physically impossible for the employee to start or end work mid-way through a shift. Also, in section 825.205(a)(1), the DOL kept the provision that allows employers to use varying increments of leave at different times of the work day or shift. Fortunately for employers, the DOL did not eliminate these two options.

The regulations are not the only place the DOL has been active. Recently, the DOL has issued guidance that clarifies, and arguably increases, who may be deemed a close family member (see DOL guidance on how it interprets the phrase “son or daughter” or “parent” under the FMLA). Even more recently, the DOL issued guidance on what it means to be a son or daughter over the age of 18.

Happy complying…

Michael M. Shetterly is the managing shareholder of the Greenville office of Ogletree Deakins. He regularly trains human resources professionals, managers, and supervisors on FMLA and ADA compliance. He has also developed FMLA compliance software (FMLA Edge), which launches this spring. For Mr. Shetterly’s lecture schedule on FMLA compliance (“Everything You Needed to Know about the FMLA, But Didn’t . . .”), please click here.

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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