On February 6, 2013, the U.S. Department of Labor (DOL) Wage and Hour Division issued a final ruling on changes to the Family and Medical Leave Act (FMLA), which take effect on March 8, 2013. Employers having 50 or more employees should make sure the new FMLA poster is posted in their workplace by March 8, 2013 and should review existing FMLA policies to make sure references to military FMLA contained in those policies are up-to-date.
New FMLA Poster – There is one provision in the new regulations that all covered employers need to be aware of and that is the requirement of a new FMLA poster required by March 8, 2013. The DOL has stated that employers may start using the new poster immediately, or they may continue to use the old FMLA poster through March 7, 2013. However, the new poster must be posted by the deadline.
New Regulations – Most of the additional new regulations relate to rarely used FMLA provisions including military caregiver leave for a veteran, qualifying exigency leave for parental care, and job-protected leave for airline personnel and flight crews. Below is a brief summary of the most important changes for non-airline employers:
- Qualifying Exigency Leave – The new regulations revise the definitions of “military member” and “active duty.” Eligible employees may take FMLA leave for qualifying exigencies arising out of the fact that a military member is on active duty or has been notified of an impending call or order to active duty. The term “military member” (previously referred to as “covered military member”) now includes both members of the National Guard and Reserves and the Regular Armed Forces. The term “covered active duty” (previously referred to as “active duty”) requires deployment to a foreign country.
An additional reason that eligible employees may take qualifying exigency leave is “parental care.” Eligible employees may now take leave to care for a military member’s parent who is incapable of self-care when the care is necessitated by the military member’s covered active duty. The “parental care” qualifying exigency covers an employee’s request for leave in order to arrange for alternative care for a military member’s parent, to provide care on an immediate need basis, or to attend meetings with staff at a military member’s parent’s care facility.
An eligible employee may take up to a maximum of 15 calendar days (expanded from five) for a Rest and Recuperation qualifying exigency leave.
- Military Caregiver Leave – The definition of a “covered servicemember” has been expanded to include “covered veterans” who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness. A “covered veteran” is defined as an individual who was discharged or released under conditions other than dishonorable at any time during the five years prior to the first date the eligible employee takes FMLA leave to care for the covered veteran. However, the regulations state that the period between October 28, 2009 and March 13, 2013, cannot be counted when determining a covered veteran’s five-year eligibility period.
- Definition of a Serious Illness or Injury of a Covered Servicemember Expanded – The new definitions of a serious illness or injury now includes both: 1.) an illness or injury incurred in the line of duty on active duty in the Armed Forces; or 2.) an illness or injury aggravated by service in the line of duty on active duty in the Armed Forces.
- Serious Injury or Illness for a Covered Veteran – A serious injury or illness for a covered veteran means an injury or illness that was incurred or aggravated by the member in the line of duty on active duty in the Armed Forces and manifested itself before or after the member became a veteran, and is: 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.
- Required Information for Certification of a Qualifying Exigency – The list of required information for certification for qualifying exigency leave for Rest and Recuperation leave has been expanded to include a copy of the military member’s Rest and Recuperation leave orders, or other documentation issued by the military setting forth the dates of the military member’s leave.
- Certification of Military Caregiver Leave – The list of health care providers who are authorized to complete a certification for military caregiver leave for a covered servicemember is expanded to include health care providers, as defined in the regulation who are not affiliated with DOD, VA, or TRICARE. If an employer requests certification, an employee may submit documentation of enrollment in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers as sufficient certification of the covered veteran’s serious injury or illness. The documentation is sufficient even if the employee is not the named caregiver on the document. If an employee submits documentation of the servicemember’s enrollment in the VA Program of Comprehensive Assistance for Family Caregivers, an employer may require the employee to provide additional information, such as confirmation of the familial relationship to the enrolled servicemember or documentation of the veteran’s discharge date and status. The information from the employee or servicemember that must be included for the certification for military caregiver leave is expanded to account for covered veterans. Employers may require the employee to indicate whether the military member is a veteran, the date of separation, and whether the separation was other than dishonorable. The employer may also require that the employee provide documentation confirming this information. Second and third opinions may be required by an employer for military caregiver leave certifications that are completed by health care providers, as defined in the regulations, who are not affiliated with DOD, VA, or TRICARE.
- Employee Eligibility Hours of Service and USERRA – Any period of absence due to or necessitated by USERRA-covered military service must be counted in determining an employee’s eligibility for FMLA leave.
- Minimum Increments of Leave – An employer may not require the employee to take more leave than necessary to address the circumstances that precipitated the need for leave, and that FMLA leave may only be counted against an employee’s FMLA entitlement for leave taken and not for time that is worked for the employer.
- Varying Minimum Increments of Leave – Employers must track FMLA leave using the smallest increment of time used for other forms of leave subject to a one hour maximum.
- Physical Impossibility – In the previous regulations it stated, where it is physically impossible for an employee to start or end work mid-way through a shift, the entire period the employee is forced to be absent is counted against the employee’s FMLA leave entitlement. Clarifying language is added noting that the physical impossibility provision is to be applied in only the most limited circumstances, and the employer bears the responsibility to restore the employee to the same or equivalent position as soon as possible.
- Compliance with GINA Recordkeeping Requirements – FMLA documentation covered by the Genetic Information Non-Discrimination Act (GINA), e.g. medical certification forms for family members, must comply with the confidentiality requirements of GINA.
New Focus HR clients will receive updated policies that are impacted by the new FMLA regulations soon. Remember, new posters need to be posted in an employer’s workplace no later than March 8, 2013. Anyone else who would like additional information should contact us.
Note: Most of the information included in this article was obtained from the Department of Labor website at: http://www.dol.gov/whd/fmla/2013rule/comparision.htm.
Written By: Kristen Shingleton, M.B.A., CCP
President, New Focus HR LLC