The Family and Medical Leave Act of 1993 (the "FMLA") recently turned twenty. To commemorate this event, the United States Department of Labor (the "DoL") has updated the existing regulations under the FMLA. While the DoL's new guidance does not contain any unexpected changes, it does update the regulations to account for changes enacted by the National Defense Authorization Act for Fiscal Year 2010 and the Airline Flight Crew Technical Corrections Act. The new guidance also clarifies how intermittent leave is to be used and calculated under the FMLA. The new guidance is effective as of March 8, 2013. Employers who are subject to the FMLA should take steps to ensure compliance with the new guidance as soon as possible.

Brief Summary of the Changes Implemented by the New Guidance

  1. Exigency leave, which was previously available to family members of those in the National Guard and the Reserves, is now available to family members of those in the Regular Armed Forces.
  2. Exigency leave for family members is generally triggered by a call to active duty. Active duty has been limited to mean deployment in a foreign country, which includes international waters.
  3. The length of time that a family member may take off for the exigency leave known as Rest and Recuperation has been increased from five days to a maximum of fifteen days.
  4. The rules surrounding eligibility for the exigency leave known as Childcare and School Activities have been clarified.
  5. A new category of exigency leave known as Parental Care has been added.
  6. Military caregiver leave is available to family members of those in the Armed Forces who suffer a serious injury or illness. The definition of "serious injury or illness" has been expanded to include the aggravation of a pre-existing injury or illness.
  7. Military caregiver leave has been expanded to family members of certain veterans if the veteran was a member of the Armed Forces at any time during the five-year period prior to his or her medical treatment, recuperation, or therapy. A new definition of "serious injury and illness" that applies to veterans has been included.
  • For reasons beyond the scope of this client alert, the period of time from October 28, 2009, the date of enactment of the National Defense Authorization Act for Fiscal Year 2010 (which law expanded military caregiver leave to include care for certain veterans), to March 8, 2013, the effective date of the new guidance, is excluded from this fiveyear measurement period. Equally as important, any military caregiver leave used to care for a veteran during that time period does not count as FMLA leave (unless it  meets one of the other definitions of qualifying FMLA leave, such as caring for a family member with a serious health condition).
  1. The categories of health care providers from whom an employee may obtain a certification of a servicemember's serious injury or illness has been expanded, and employers will be permitted to get a second and third opinion when that certification is not from a health care provider affiliated with the Department of Defense, the Department of Veteran Affairs, or the TRICARE network.
  2. Special hours-of-service rules were enacted to determine FMLA eligibility for airline flight crew employees. Special rules were also enacted for calculating the amount of FMLA leave taken by airline flight crew employees.
  3. Intermittent leave under the FMLA must be available in increments no greater than the lesser of (i) the shortest increment of time that the employer uses to track other types of leave (such as vacation or sick leave) or (ii) one hour (but note that there is an exception to this rule for airline flight crew employees). Also, any time during which the employee works for the employer may not be counted against the employee's FMLA leave (for example, if the employer waives this "shortest incremental leave" rule for a particular circumstance).
  4. The "impossibility" rule, which allows an employer to delay reinstatement of an employee from FMLA leave when it is impossible for the employer to do so in mid-shift, has been clarified to provide that this rule only applies to the period of time when the employer is unable to reinstate the employee due to physical impossibility.
  5. The FMLA poster and forms issued by the DoL have been updated.

Important Takeaways for Employers

  1. Review and revise your FMLA policy to ensure compliance with the new guidance. Once the policy has been updated, it should be re-issued to your employees.
  2. Train your HR managers and other employees who are responsible for knowing how the FMLA works and implementing its rules.
  3. Replace your existing FMLA poster and forms (such as the leave request form) with the new poster and forms issued by the DoL in connection with this new guidance.
  • While not included on the DoL's model forms, the safe harbor language proposed in connection with the Genetic Information and Nondiscrimination Act ("GINA") should be added to those forms to protect employers from disclosures of family medical history and genetic information (defined broadly under GINA) that are likely to occur as a part of the FMLA leave request and medical certification process.