Last week marked the twentieth birthday of the Family Medical Leave Act. In celebration of this momentous occasion, the Department of Labor issued both a new survey regarding the use and abuse of FMLA and new regulations to implement the amendments to the FMLA passed in 2010. While the survey results are interesting (and led me to question how they chose the participants), the new regulations, most of which go into effect March 8, 2013, provide important guidance on military-related leaves. Employers should review their FMLA policies to determine whether updates are necessary (they likely are) and should plan to post a new FMLA poster by March 8. The new poster is already available on the Department of Labor’s website at http://www.dol.gov/whd/regs/compliance/posters/fmla.htm
Those of you who call me with FMLA questions know that I keep my regulation book by the phone because the FMLA regulations are very fact and detail intensive. As a result, I won’t attempt to give you a blow-by-blow account of all of the new regulations here. Instead, I will provide a summary that addresses the major changes that will impact most employers and their policies.
Changes to Qualifying Exigency Leave
The regulations make clear that qualifying exigency leave may be taken as a result of members of the Regular Armed Forces, National Guard and Reserves being deployed to a foreign country. The regulations also expand the number of days a family member may take as leave for a military member’s rest and recuperation leave from 5 up to 15 days. Likewise, the reasons qualifying for exigency leave are expanded to include allowing employees to take parental care leave to provide care for the military member’s parent who is incapable of self-care, necessitated by the covered military member’s deployment. Note that some of these changes were effective as of the 2010 Amendments, so if you have a relatively new FMLA policy, it likely already includes at least some of these changes.
Changes to Military Caregiver Leave
Caring for Recent Veterans
The regulations expand military caregiver leave to include recent “covered veterans.” This basically means that employees who would quality for military caregiver leave may now take such leave to care for a veteran who has been released from the military not dishonorably within the last five years (there is an exclusion period for the time of enactment of the amendments until the rule goes into effect) and suffers a serious injury or illness defined as any one of the following:
1) a continuation of a serious injury or illness that was incurred or aggravated when the 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;
2) a physical or mental condition for which the veteran has received a U.S. Department of Veterans Affairs Service-Related Disability Rating of 50% or greater and the need for leave is related to that condition;
3) a physical or mental condition that substantially impairs the veteran’s ability to work because of a disability or disabilities related to military service, or would so absent treatment; or
4) an injury, including a psychological injury, on the basis of which the veteran is enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.
This type of leave is not available until the effective date of the regulations and likely is not in current FMLA policies.
Caring for Current Service Members
The regulations also expand the definition of serious injury or illness for current servicemembers to include preexisting conditions that were aggravated by service in the line of duty on active duty.
Medical Certification Requirements
The regulations expand the list of health care providers who are authorized to complete a certification for Military Caregiver Leave to include heath care providers that are not affiliated with the Department of Justice (DOD), Veterans Affairs (VA) or TRICARE. The employer may request second and third opinions if a certification for Military Caregiver Leave is completed by a health care provided not affiliated with the DOD, VA or TRICARE. A second or third opinion is not available if the health care provider is affiliated with the military. In either situation, employers may not request recertifications.
Calculating Leave to Everyone Who Qualifies for FMLA Leave
Pursuant to the new regulations, an employer may not require the employee to take more leave than necessary to address the circumstances that precipitated the need for the leave. The regulations make clear that employers are now required (not just permitted) to track FMLA leave using the smallest increment of time used for other forms of leave subject to a one hour maximum. The regulations also now make clear that the physical impossibility provision (where it is physically impossible for an employee to start or end work mid-way through a shift) is to be applied in only the most limited circumstances.
Some of these provisions may also require an update to employers’ FMLA policies.
USERRA and GINA
The regulations make clear that leave taken pursuant to USERRA should be counted as time worked in calculating whether an employee qualifies for FMLA leave. This is consistent with USERRA’s elevator principle for employees returning after military leave. The regulations also state that an employer’s recordkeeping requirements pursuant to the FMLA must also be compliant with GINA.
The regulations also implement changes made to the FMLA regarding FMLA calculation for airline employees. Employers who could be affected by these changes should consult with counsel and review the Department of Labor’s website.
A Word on the Survey
As a common strategist with clients to address the business issues related to FMLA, particularly intermittent FMLA, I found the headline numbers from the Department of Labor’s survey related to FMLA use to be interesting. According to the DOL:91% of employers reports that complying with the FMLA has had either a positive effect or no noticeable effect on employee absenteeism, turnover and morale 24% of leave taken for FMLA reasons is intermittent leave Less than 2% of employees who take intermittent leave are off for a day or less Less than 2% of covered worksites confirmed misuse of FMLA; and Less than 3% of covered worksites reported suspicion of FMLA misuse.
For more information on the survey, you may visit http://www.dol.gov/whd/fmla/survey/
Complying with the FMLA can be tricky business. Review and update your policies, update your poster, and have a big piece of chocolate cake – we are celebrating a birthday after all!