The Family and Medical Leave Act (FMLA) turned 20 this year. Many employers have finally come to terms with the major revisions to the FMLA regulations issued on November 17, 2008, which became effective on January 16, 2009. Now employers will also have to adjust their practices, policies and training to reflect additional revisions to the FMLA regulations adopted on February 6, 2013, which become effective on March 8, 2013. The most recent changes primarily address statutory changes signed into law in 2009, and include a number of significant changes, particularly with regard to military caregiver leave, exigency leave, and, although beyond the scope of this Alert, application of the FMLA to airline pilots and flight crews.
Significant changes pursuant to the newly adopted FMLA regulations include:
Expansion of the Availability of Exigency Leave to Support Members of the Regular Armed Forces: The National Defense Authorization Act (NDAA) for Fiscal Year 2008, which first provided for military caregiver and exigency leave, excluded family members of the active duty Regular Armed Forces from eligibility for exigency leave. The NDAA for Fiscal Year 2010 (signed on October 28, 2009) expanded coverage for exigency leave to include family members of the Regular Armed Forces on active duty. The new regulations implement this statutory change by clarifying that covered employees can include specified relatives of:
(1) Members of the Regular Armed Forces on duty while deployed to a foreign country (including international waters); or
(2) Members of the Reserves or National Guard while deployed to a foreign country under a federal call or order to active duty in support of a contingency operation.
This limitation of coverage to family members of reservists deployed to foreign countries in support of a “contingency operation” may be subject to legal challenges, however, since Congress removed similar language from the statute when it passed the NDAA for Fiscal Year 2010.
Expansion of Qualifying Exigencies to Include Parental Care: Under the 2008 regulations, covered employees could take leave for seven specified types of qualifying exigencies and additional unspecified exigencies if agreed to with their employers. The new regulations add a specified qualifying exigency in the form of parental care. Covered employees can take such leave to arrange for or provide care for the parent of a military service member where the parent is incapable of self-care and the covered active duty or call to covered active duty status of the military service member necessitates a change in the existing care arrangement for the parent.
Expansion of Right to Exigency Leave for Rest and Recuperation Leave: The 2008 regulations required employers to provide up to five days of leave to spend time with service members on short-term, temporary, rest and recuperation leave. The new regulations expand this requirement to up to 15 days of leave. Many states, including California, Illinois, Indiana, Maine, Minnesota, Nebraska, New York, Ohio, Oregon, Rhode Island and Washington, also provide some form of state military family leave law, and employers must coordinate this new requirement consistently with any additional obligations under state law. (For example, California’s military spousal leave law requires employers to provide an additional — non-concurrent — 10 days of unpaid leave to employees who work an average of 20 or more hours per week and whose spouse or domestic partner is on leave from active military service.)
Clarification of Right to Exigency Leaves for Childcare and School Activities Based Exigency Leave: The new regulations do not change the fact that a qualifying exigency may include leave taken to provide childcare or arrange for school activities for a child for whom a military service member is a parent or with whom the military service member has an “in loco parentis” relationship. However they do clarify that the coverage of an employee, if any, is based on the employee’s relationship to the service member rather than the child. Accordingly, the fact that the employee stands “in loco” parentis to the military service member’s child does not permit coverage unless the employee is also the spouse, son, daughter or parent of the relevant service member.
Defining Covered Veterans for Purposes of Military Caregiver Leave: The new regulations reflect statutory changes to the NDAA for Fiscal Year 2010, which expanded the scope of military caregiver leave to include care for both covered service members and covered veterans. The new regulations define covered service members to include covered veterans who are undergoing medical treatment, recuperation or therapy for a serious injury or illness. The new regulations also define covered veterans as those released from the armed forces under conditions other than dishonorable any time during the five-year period prior to the first date the employee takes military caregiver leave to care for the veteran. The Department of Labor takes the position that the statutory changes to the NDAA for Fiscal Year 2010 did not require employers to offer leave to care for covered veterans before March 8, 2013, since no implementing regulations were in place. Based on that interpretation, the new regulations exclude the period between October 28, 2009 and March 8, 2013, from counting toward the determination of the five-year period for covered veteran status. Based on the position that employees were not entitled to FMLA leave to care for covered veterans without an implementing regulation, the preamble to the new regulations also sets forth the Department of Labor’s position that employers who provided military caregiver leave to employees to care for veterans prior to the implementation of the new regulations cannot count that leave against the employees’ military caregiver leave entitlement. This interpretation may be subject to legal challenges based on the 2009 statutory changes to the FMLA.
Military Caregiver Leave —Expanded Definition of Serious Injury or Illness: The new regulations expand the definition of a “serious injury or illness” to include preexisting conditions of service members that are aggravated in the line of duty while on active duty in the Armed Forces. They also expressly define the term “serious injury or illness” as applied to covered veterans. For covered veterans, a serious injury or illness includes injuries or illnesses incurred or aggravated in the line of duty on active duty in the Armed Forces, which manifested themselves before or after the affected individuals became a veteran, and which are: (1) a continuation of a serious injury or illness incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the service member unable to perform the duties of the service member’s office, grade, rank or rating; or (2) a physical or mental condition for which the covered veteran has received a U.S. Department of Veterans Affairs Service-Related Disability Rating (VASRD) of 50 percent or greater 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 covered 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.
Certification Issues: The new regulations allow employers to request copies of a military service members’ Rest and Recuperation leave orders in support of requests for related Rest and Recuperation exigency leave. They also expand the types of healthcare providers who can certify a serious injury or illness, and permit second and third opinions where certifications are provided by health care providers who are not affiliated with the Department of Defense, the Department of Veterans Affairs, or TRICARE.
Employers should be careful to coordinate these new certification rules with any applicable state laws after consultation with competent employment counsel. For example, the California Family Rights Act, although not expressly providing for military caregiver leave, does prohibit employers from obtaining second or third opinions regarding the serious health conditions of family members and California generally has stronger privacy rights than those provided for under the FMLA.
In an effort to facilitate more flexibility, the Department of Labor has removed optional use forms from its appendices so that it can update the forms without going through the formal rulemaking process. Revised and new optional use forms include: (1) WH-381 Notice of Eligibility and Rights & Responsibilities; (2) WH-384 Certification of Qualifying Exigency for Military Family Leave; (3) WH-385 Certification for Serious Injury or Illness of Current Servicemember — for Military Family Leave; and (4) WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave. Employers subject to state family medical leave and/or military leave laws should not adopt the permissive forms without first conducting a legal review to ensure that they are adopted as necessary so as to avoid violating any state laws. (For example, California employers generally may not use FMLA forms requesting a diagnosis.) The forms are available here.
Clarification of Subtracting Time for Intermittent and Reduced Schedule Leave: The new regulations clarify that employers must track FMLA intermittent and reduced schedule leave using the minimum amount of time used to track any form of leave, which may not be more than an hour. They also re-emphasize the basic rule (with very narrow specified exceptions) that employers can only count the amount of leave actually taken against an employee’s leave entitlement. For example, an employer with minimum increments of leave in 15 minutes can charge an employee’s leave bank in 15-minute increments. However, if the employer charges an employee 30 minutes for an intermittent leave because it is closest to the amount of time needed, the employee should not work any of those 30 minutes. Within these parameters, employers can maintain systems in which the minimum increment used varies by time of day or shift, and can also use FMLA increments of leave that are smaller than minimum increments used for other types of leave.
Updated FMLA Poster: The Department of Labor has published an updated FMLA poster, which can be accessed here.
Miscellaneous Other Provisions: The new regulations contain various other provisions. These include, for example, the need to apply confidential recordkeeping requirements to documents covered by the Genetic Information Non-Discrimination Act (GINA), rules expanding the circumstances in which scheduled overtime may be counted against FMLA leave, and the clarification of the interplay between USERRA and FMLA rights.
Employers should prepare for the March 8, 2013, implementation date by updating their practices, forms, policies and training in light of these new regulatory requirements.
They are encouraged to consult with a Sedgwick LLP employment lawyer to help them in this process.
I think they should update FMLA …