February 5, 2013 marked the 20th anniversary of the signing of the Family and Medical Leave Act (FMLA), which provides up to 12 weeks of unpaid, job-protected leave to eligible employees for certain reasons. Like any 20 year old, the FMLA is changing – with those changes taking effect on Friday, March 8, 2013.
New FMLA Forms
The U.S. Department of Labor (DOL) recently issued new FMLA regulations. Employers subject to the FMLA need to know that beginning March 8, 2013, employers are required to use an updated FMLA notice, and certification, eligibility, and designation forms, and to post the new FMLA poster. This includes significant revisions to the required documentation and information for certification of a qualifying exigency and certification of military caregiver leave.
Employers should also note that the DOL’s FMLA forms and poster are removed from the regulations and are no longer available in the appendices. Rather, employers can find the FMLA forms directly on the DOL Wage and Hour Division website.
Final Rule on Military Leave/Military Caregiver Leave
Congress likewise amended the text of the FMLA to expand the scope of FMLA rights for leave associated with military leave and military caregiver leave. Under the final rule, eligible employees with a spouse, son, daughter, or parent in any branch of the Armed Forces can take FMLA leave to deal with exigencies related to their loved one’s deployment to a foreign country. Previously, this type of leave was available only to eligible employees with family members in the National Guard and Reserves.
The new regulations extended the amount of leave. Previously, an eligible employee could take five (5) days to spend time with his or her covered family members during rest and recuperation leave. That has now been extended to a maximum of fifteen (15) calendar days.
The final rule expends the definition of a covered service member to include “covered veterans” – defined as an individual who was discharged or released under conditions other than dishonorable at any time during the past five years – undergoing medical treatment, recuperation, or therapy for a serious injury or illness. Previously, only eligible employees who were the spouse, parent, son, daughter, or next of kin of a current service member with a serious injury or illness were entitled to the special 26-week FMLA leave to provide care to members of their family. Additionally, the definition of a serious illness or injury for a current service member is expanded to include injuries or illnesses that existed before the beginning of the service member’s active duty and were aggravated by service in the line of duty on active duty in the Armed Forces.
The DOL added clarifying language to §825.205, which addresses the minimum increments of leave when an employee takes intermittent leave. These clarifications reinforce that employers must track FMLA leave using the smallest increments of time used for other forms of leave (subject to a one hour maximum) and that an employer may not require the employee to take more leave than necessary to address the circumstances that precipitated the need for leave.
Finally, the new regulations weaken the physical impossibility provision that previously applied where the employer determined that it was physically impossible for an employee to start or end work mid-way through a shift. The DOL clarified that the physical impossibility is applied only in the most limited circumstances, and that the employer bears the responsibility to restore the employee to the same or equivalent position as soon as possible.
Should you have any questions related to the FMLA or any other employment matters, please contact one of our Employment Practices Liability Group Members.