The Department of Labor (“DOL”) published revisions to certain regulations for the Family and Medical Leave Act (FMLA), a new poster and a new certification form.  The following highlight key issues for employers with regard to the revisions.

New FMLA Poster.  The DOL revised its FMLA poster, also referred to as the “General Notice”, effective February 2013.  Employers should post the new FMLA poster in the workplace so it is visible to employees and applicants and on the employer’s on-line application site so it is visible to applicants.  The poster also should be included in an employee handbook, either as standalone document or as an attachment to the employer’s FMLA policy. Click here for the new poster.

Military Family Leave Regulations. The revised FMLA regulations implement the amendments to the FMLA’s military family leave provisions signed into law in October 2009.  The regulations become effective on March 8, 2013.

Qualifying Exigency Leave.

  • An eligible employee may take qualifying exigency leave for a spouse, son, daughter or parent who is a member of the Regular Armed Forces if that member is deployed to a foreign country.  Previously an employee could only take qualifying exigency leave for a family member in the Reserve Armed Forces.
  • An eligible employee may take qualifying exigency leave for a spouse, son, daughter or parent who is a member of the Reserve Armed Forces during the period of time that Reserve member is both (i) deployed to a foreign country and (ii) the deployment is under a Federal call or order to active duty in support of a contingency operation (as defined by federal law).  The 2009 regulations did not require the Reserve member to be deployed to a foreign country.
  • The length of time that an eligible employee may take qualifying exigency leave for “Rest and Recuperation” has been increased to fifteen (15) days.  Leave for this reason was previously limited to five (5) days.
  • There is a new category of qualifying exigency leave: Parental Care, which is leave to care for the parent of a military member where the parent is incapable of self-care (e.g., the parent requires active assistance with activities of daily living).
    • The permissible parental care activities are: arranging for alternative care of the parent, providing care for the parent on an urgent, immediate need basis, to admit or transfer the parent to a care facility, and to attend meetings at a care facility if necessary due to the military member’s active duty or call to active duty.
  • Note: The military member must be the spouse, son, daughter or parent of the eligible employee and the eligible employee must be seeking leave to care for that military member’s parent.
  • Click here for the regulation text (28 C.F.R. §825.126) concerning qualifying exigency leave.

Military Caregiver Leave

  • As of March 8, 2013, an eligible employee may take military caregiver leave to care for a “covered veteran” who is undergoing medical treatment, recuperation or therapy for a serious injury or illness. Military caregiver leave was previously only available to care for a current member of the Armed Forces.
  • A “covered veteran” is defined as an individual who was a member of the Armed Forces and was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran.
  • Note: The calculation of this five-year period does not include the interval of October 28, 2009 through March 8, 2013.  The DOL excluded this interval because of length of time it took to issue the revised regulations.
  • For a covered veteran, there are four methods to establish that he or she has a serious injury or illness.  The DOL adopted a new certification form, Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave, to assist with obtaining the relevant information.  Click here for the certification form.

For a current member of the Armed Forces, the revised regulations expand the definition of “serious illness or injury” to include pre-existing illness or injuries aggravated in the line of duty.  Click here for the regulation text (28 C.F.R. §825.127) concerning the applicable definitions of “serious injury or illness.”

  • The revised regulations permit a health care provider not affiliated with the Department of Defense, Department of Veterans Affairs (VA) or the Tricare Network to certify a military member’s serious injury or illness.  Click here for the applicable regulation text (28 C.F.R. §825.310).

Special Rules of Airline Flights Crew Employees.

The revised regulations implement the Airline Flight Crew Technical Corrections Act, which was signed into law on December 21, 2009.  The regulations establish special rules for airline flight crew employees concerning the hours of service requirement for determining FMLA eligibility, calculation of leave, and recordkeeping requirements. Click here for the regulation text (28 C.F.R. §§825.801-803).