On February 6, 2013, the Department of Labor issued new Family and Medical Leave Act ("FMLA") regulations, which became effective on March 8, 2013. In order to comply with the new regulations and with a DOL Administrator Interpretation issued in January 2013, employers should review their policies and consider the following:
1. Update Internal FMLA Policies And Practices
The primary revisions to the regulations implement the 2010 statutory changes concerning military family leave entitlements. Even if an employer’s policy previously was revised in order to address those statutory changes, additional policy and practice revisions likely are necessary based on the DOL’s interpretations of key terms and expansions of certain types of leave.
Regarding military caregiver leave, the regulations now indicate that such leave is available not only to care for active military members, but also to care for certain "veterans" as defined in the regulations. The regulations also include revised definitions of "serious injury or illness," which differ for current servicemembers and veterans. Regarding qualifying exigency leave, the regulations now indicate that such leave is available to employees who are family members of military members in the Regular Armed Forces (in addition to the Reserves). A new definition of "covered active duty" (situations in which the military member is deployed to a foreign country) also is provided. Moving beyond the statutory amendments, the new regulations increase the amount of time that an employee may take for qualifying exigency leave relating to a military member’s "Rest and Recuperation" from five to fifteen days. Also, qualifying exigency leave may now be taken for certain activities relating to providing care to a military member’s parent who is incapable of self-care, where those activities arise from the military member’s covered active duty.
2. Use The New DOL Notice And Certification Forms (Or Update Your Forms)
The DOL has prepared a revised (optional) "Notice of Eligibility and Rights & Responsibilities" (Form WH-381). Although the revisions to this form relate only to military family leave and airline flight crews, for consistency purposes the new form should be used whenever an eligibility notice and/or rights & responsibilities notice is required for any employee.
The DOL also has revised the (optional) certification forms relating to both qualifying exigency leave and military caregiver leave. The updated qualifying exigency certification form reflects the revisions to the definitions of military member and covered active duty/status (Form WH-384). The DOL has separated the military caregiver certification form into two forms, one relating to leave to care for a "Current" Servicemember (Form WH-385) and one relating to leave to care for a "Veteran" (Form WH-385-V). The revised forms also make clear that any health care provider may complete the military caregiver leave certification, not just a health care provider affiliated with the military. Also, second and third opinions may now be required when a non-military affiliated health care provider completes the military caregiver certification.
The remaining certification forms were unchanged, except that their expiration dates were extended to 2015. All forms are available on the DOL’s website at: http://www.dol.gov/whd/fmla/2013rule/militaryForms.htm. To the extent an employer has drafted its own eligibility/rights and responsibilities notice and/or or military family leave certification forms instead of using the DOL forms, the employer should update its documents to utilize the revised language.
3. Post The New FMLA Poster
To address the revisions relating to military family leave entitlements and eligibility requirements for airline flight crew employees, the DOL has revised the poster entitled, "Employee Rights and Responsibilities Under the Family and Medical Leave Act." The poster is available on the DOL’s website at: http://www.dol.gov/whd/regs/compliance/posters/fmla.htm.
4. Ensure That Intermittent FMLA Leave Time Is Counted Correctly
The new regulations clarify rules relating to employer policies that require intermittent FMLA leave to be taken in accordance with the minimum increment of time used to account for other forms of leave. Specifically, if an employer accounts for other forms of leave in varying increments depending on the type of leave or the time period of the day or shift in which the leave occurs, the employer must permit intermittent FMLA leave to be taken in the smallest increment of leave that is used for other forms of leave during the period in which the FMLA leave is taken. Also, the regulations emphasize that the employer may only deduct from an employee’s FMLA entitlement the leave time actually taken. Thus, for example, if by policy the minimum increment of leave at the beginning of a shift is one hour, but an employee taking FMLA leave arrives to work only thirty minutes late and is permitted to begin working immediately, then only thirty minutes may be deducted from the employee’s FMLA leave entitlement.
The DOL also clarified the "physical impossibility" rule adopted in 2008 (which allows an employee to be forced to take leave for an entire shift instead of beginning or ending leave mid-way through a shift) to emphasize that the rule is to be used only when it is truly physically impossible for the employee to leave or return to work during the shift, not simply inconvenient for the employer.
5. Ensure Compliance With GINA
The new regulations update employers’ recordkeeping requirements, specifying that, if the Genetic Information Nondiscrimination Act ("GINA") is applicable, then FMLA-related documents containing family medical history or genetic information as defined in GINA must be maintained in accordance with the confidentiality requirements of GINA.