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New FMLA regs require employers to reexamine policies and practices

by Amanda Shelby

The U.S. Department of Labor’s (DOL) recently issued Family and Medical Leave Act (FMLA) regulations became effective on March 8. Although the new regulations don’t radically change the landscape of the FMLA, they do contain some significant modifications. What do you need to know to ensure that your policies and practices are still in compliance? 

Major changes
The new FMLA regulations revise several aspects of the law, ranging from required posters and recommended forms to the calculation of hours of service and available leave for airline flight crews. The regulatory changes that will affect most employers include modifications to the calculation of intermittent FMLA leave, the expansion of coverage for family members of certain military personnel and veterans, and revisions to the DOL’s FMLA poster and notification and certification forms.

Intermittent FMLA leave. The new regulations provide clarification on the calculation of intermittent FMLA leave. First, the regs clarify that employers must track intermittent FMLA leave using the smallest increment of time used for tracking other forms of leave (e.g., sick leave). However, no employer can track intermittent FMLA leave using increments of time larger than one hour. So, for example, if you calculate sick leave in quarter-hour increments, you must calculate intermittent FMLA leave in quarter-hour increments as well.

Second, employers may count only time actually taken as FMLA leave against employees’ leave entitlement under the Act. In other words, you cannot count time an employee worked against his FMLA leave entitlement. Although that principle may sound straightforward, it can be complicated in practice. For example, if a company accounts for FMLA leave in one-hour increments but an employee returns to work after an intermittent leave absence of only 30 minutes, the employer cannot count the full hour against her FMLA leave entitlement. Instead, the company can count only the 30 minutes of leave against the employee’s leave entitlement.

Military family exigency leave. Military family exigency leave allows an eligible employee to take time off for a variety of qualifying exigencies arising from the fact that a family member is on or has been called to active duty. Qualifying exigencies previously have included:

  • Assisting the military member with alternative childcare arrangements when active duty or the call to active duty necessitates a change in existing arrangements;
  • Attending counseling arising from the military member’s covered active duty or call to covered active duty;
  • Making financial or legal arrangements related to active duty or the call to active duty;
  • Attending certain military events and related activities; and
  • Spending time with the military member while he is on short-term temporary rest and recuperation leave.

The new regulations contain several changes that expand the scope of military family exigency leave.

First, the regulations add “parental care leave” to the list of qualifying exigencies, permitting eligible employees to take military family exigency leave to care for a military member’s parent when such leave is necessitated by the servicemember’s active duty.

Second, the regulations clarify that family members of armed forces, National Guard, and military reserves personnel can qualify for military family exigency leave if the military member is deployed to a foreign country in support of a contingency operation.

Third, the regulations increase the amount of leave an eligible employee can take for rest and recuperation with the military member. Previously, eligible employees were limited to five days of leave; now they are permitted a maximum of 15 days. Fourth, the regulations expand the list of acceptable certifications for leave to include a copy of the military member’s rest and recuperation leave orders and other military documentation establishing the dates of the servicemember’s leave.

Covered servicemember leave. The new regulations expand the scope of covered servicemember leave, which allows an eligible employee to take time off to care for a family member who is a “covered servicemember” with a “serious illness or injury.”

First, the regulations expand the definition of “covered servicemember” to include veterans undergoing medical treatment, recuperation, or therapy for an illness if the veteran was released or discharged (other than dishonorably) at any time during the five-year period before the first date the eligible employee takes military caregiver leave. Second, the regulations expand the definition of “serious injury or illness” to include a preexisting injury or illness aggravated by active duty. Third, the certification requirements are relaxed to allow any healthcare provider to certify covered servicemember leave for a veteran’s serious injury or illness.

Posters and forms. One change that’s sure to affect all employers covered by the FMLA is the DOL’s new “Employee Rights and Responsibilities” poster. The new poster incorporates the recent revisions in the requirements for leave to care for military servicemembers.

The DOL also revised several of its recommended FMLA forms, including Form WH-381 (“Notice of Eligibility and Rights and Responsibilities” ) and Form WH-384 (“Certification of Qualifying Exigency for Military Family Leave” ).

Bottom line
If you are covered by the FMLA, you must review your policies and procedures to ensure they are consistent with the new regulations. If your FMLA leave policy purports to list all the qualifying exigencies for military family exigency leave, make sure it includes the new qualifying exigency for parental care. If it includes a list of defined terms, ensure they reflect the recent revisions to the definitions of “covered servicemember,” “veteran,” and “serious injury or illness.” And if it includes a copy of the DOL’s old “Employee Rights and Responsibilities” poster, replace it with the new one.

You also must display the new “Employee Rights and Responsibilities” poster in a place where all employees and applicants can see it. You can print the poster free of charge from the DOL’s website at www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf. And you should consider whether to update any of your forms in light of the DOL’s revisions to its notification and certification forms. You can find the forms and print them free of charge on the DOL’s website at www.dol.gov/compliance/laws/comp-fmla.htm#recordkeeping.

Finally, to better familiarize yourself with the new regulations, consider taking an educational seminar on the topic. And if you still have questions about how the FMLA regulations apply to you, consult with legal counsel.

Amanda Shelby is an associate with Faegre Baker Daniels’ labor, employment and benefits group, practicing in Indianapolis, Indiana. She concentrates on a variety of employment-related matters, including representing employers in litigation and counseling clients on best practices in compliance. She may be contacted at amanda.shelby@FaegreBD.com