The U.S. Department of Labor (“DOL”) recently issued a final rule to amend certain regulations of the Family and Medical Leave Act of 1993 (“FMLA”) and implement changes made by the 2010 National Defense Authorization Act (“NDAA”) and the Airline Flight Crew Technical Corrections Act (“AFCTCA”). These latest changes concern calculating employee eligibility for FMLA leave, military caregiver leave for veterans, qualifying exigency leave for parental care, tracking intermittent or reduced schedule FMLA leave, and special leave provisions for flight crew employees.

While some of these provisions, such as the expansion of qualifying exigency leave to families of members of the Regular Armed Forces and the special eligibility requirements for flight crew employees, have been effective since the enactment of the NDAA and AFCTCA, the remaining changes to the FMLA regulations will become effective Friday, March 8, 2013.

Calculating Employee Eligibility for FMLA and USERRA

Under the current FMLA regulations, in order to be eligible to take FMLA leave, employees must have been employed by the same employer for at least 12 months and have been employed for at least 1250 hours of service during the 12-month period immediately preceding the leave. The 2013 changes provide that in determining whether an employee meets these requirements, employers must count all periods of absence from work due to or necessitated by covered service under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”).

Military Caregiver Leave for Veterans

Under the FMLA, eligible employees are allowed to take military caregiver leave to serve as the caregiver of a spouse, son, daughter, parent or next-of-kin (“covered service member”) for a serious illness or injury that was sustained in or aggravated by service in the line of duty while on active duty in the Armed Forces (including in the National Guard or the Reserves), and who either currently is in the Armed Forces and unable to perform regular duties or was in the Armed Forces and was discharged under other than dishonorable conditions within five years of receiving the medical treatment, recuperation or therapy prompting the employee’s leave request.

While this entitlement previously applied only to servicemembers who, despite being seriously injured, remained in the military, the NDAA expanded this entitlement to cover not only members who are still in the military, but also members who are veterans receiving treatment, recuperation or therapy for a serious injury or illness. The veterans must have been other than dishonorably discharged and served in the military at some point within the five preceding years.

The NDAA also expanded the definition of a qualifying “serious injury or illness” to not only include those illnesses and injuries incurred while in the line of duty and on active duty, but also pre-existing illnesses and injuries aggravated by such service.

The 2013 changes now define a “serious injury or illness” for a covered veteran to mean 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.

To account for covered veterans, the new 2013 changes also expand the list of health care providers who are authorized to complete a certification for military caregiver leave, the information required on the certification forms, and the acceptable documentation employees may provide to substantiate the leave.

Qualifying Exigency Leave for Parental Care and More Time for Rest and Recuperation

Under the FMLA, eligible employees are allowed to take military exigency leave for a qualifying exigency arising in relation to an employee’s spouse, son, daughter or parent who is on active duty or who has been notified of an impending call to active duty status in the Armed Forces (including the in National Guard or the Reserves) in a foreign country.

While this entitlement previously only applied to qualifying family members on active duty in support of a contingency operation while in the National Guard or the Reserves, the NDAA expanded this entitlement to apply to qualifying family members in the Armed Forces on active duty in a foreign country.

Further, under the old regulations, eligible employees could take qualifying exigency leave for any of the following reasons: (1) short notice deployment; (2) military events and related activities; (3) childcare and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; (7) post-deployment activities; and (8) additional activities.

The 2013 changes now add a new qualifying exigency leave category to care for a military member’s parent who is incapable of self-care when the care is necessitated by the member’s covered active duty. Such care may include arranging for alternative care, providing care on an immediate need basis, admitting or transferring the parent to a care facility, or attending meetings with staff at a care facility.

The new 2013 changes also expand the amount of time an eligible employee may take for exigency leave used for rest and recuperation from 5 days to a maximum of 15 calendar days.

Finally, in addition to requiring certification for rest and recuperation exigency leave that includes a statement explaining why the leave is needed, the leave dates, and the frequency and duration of the leave, employers may now also require 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.

Tracking Intermittent or Reduced Schedule Leave

The FMLA provides that eligible employees may take FMLA leave on an intermittent or reduced schedule basis. When tracking intermittent or reduced schedule leave under the FMLA, employers must use the shortest period of time used to account for other forms of leave, provided that it is not greater than one hour.

The new 2013 changes clarify that an employer may not require employees to take more intermittent or reduced scheduled 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.

Further, for employers who account for leave in varying increments at different times of the day or shift, the 2013 changes clarify that while employers may account for FMLA leave in varying increments, they must also track the FMLA leave using the smallest increment of time used for other forms of leave, subject to a one hour maximum.

Leave Calculation Method for Airline Flight Crew Employees

Per the AFCTCA, the 2013 changes add special rules for airline flight crew employees under the FMLA. Specifically, the 2013 changes provide that flight crew employees are eligible to take FMLA leave if during the previous 12-month period the employee worked or was paid for not less than 60 percent of the applicable monthly guarantee and worked or was paid for not less than 504 hours (not including commute time, vacation, sick, or medical leave). If flight crew employees meet this eligibility criteria, they may take 72 days of leave for one or more of the FMLA-qualifying reasons other than military caregiver leave and 156 days for military caregiver leave.

New Poster

The DOL has also recently issued a revised poster for use by employers covered by the FMLA. The new poster reflects the 2013 changes to the FMLA.

The DOL requires covered employers to display the revised poster by no later than Friday, March 8, 2013. The required poster is available for free here.