New FMLA Regulations Effective March 8, 2013

On February 6, 2013, the Wage and Hour Division of the U.S. Department of Labor issued final FMLA regulations, most of which extend protection for military families and airline flight crew members. The new regulations also clarify certain existing provisions of the Family and Medical Leave Act (FMLA). As a result of the finalized regulations, employers should modify their FMLA forms and policies, and post a new FMLA poster by March 8, 2013.

Employers should be particularly aware of the following changes:

• An employer may not require the employee to take more leave than necessary to address the circumstances that precipitated the need for leave.
• FMLA leave may only be counted against an employee’s FMLA entitlement for leave taken. An employer may not count any time the employee worked for the employer against an employee's entitlement. For example, if an employee takes 30 minutes of qualifying FMLA leave and returns to work immediately, the employer must only count 30 minutes against the employee's leave entitlement, not any other part of that work day.
• Employers must track FMLA leave using the smallest increment of time used for other forms of leave provided by the employer, subject to a one hour maximum. For example, if an employer calculates all other forms leave in half-hour increments, it must calculate FMLA leave in half-hour increments. Employers may not calculate FMLA leave using increments of time greater than one hour.
• For purposes of the Genetic Information Nondisclosure Act of 2008 (GINA), employers should understand that a family member’s condition may constitute genetic information of the employee.
• All periods of absence from work due to military service covered by the Uniformed Services Employment and Reemployment Rights Act (USERRA) are counted towards an employee’s eligibility for FMLA leave.

In addition, the new regulations impact the military leave provisions of the FMLA.

• With regard to FMLA leave taken by an employee to care for the serious illness or injury of an Armed Forces veteran, the regulations define who is a “covered veteran” as a veteran discharged or released under conditions other than dishonorable five years prior to the date the employee’s military caregiver leave begins.
• The regulations also create a flexible definition of serious injury or illness of a covered veteran, and provide four standards by which the serious illness or injury may be determined.
• Leave granted under the 2009 changes to the FMLA, but before the effective date of the final regulations, would not count as leave for a covered veteran’s illness or injury.
• Previously, employees could only obtain a certificate of a service member’s serious injury or illness from health care providers affiliated with the Department of Defense, Veterans Administration, of TRICARE Networks. Under the newly issued regulations, employees may obtain such a certificate from any health care provider.
• Qualifying exigency leave is extended to family members of members of the Regular Armed Forces as well as the National Guard and Reserves. Military members must be deployed to a foreign country in order to be considered to be on “covered active duty” for qualifying exigency leave under the FMLA.
• The amount of time that may be taken under qualifying exigency leave related to a military member’s Rest and Recuperation leave is increased from five days to up to fifteen days.
• An additional category of qualifying exigency leave is created for employees to take FMLA leave to care for a military member’s parent who is incapable of self-care while the military member is on covered active duty.

Consistent with the new regulations, the Department of Labor has issued a revised FMLA poster and updated FMLA forms, which may be downloaded at the following website:

http://www.dol.gov/WHD/fmla/2013rule/

Employers should post the new FMLA poster and begin using the updated FMLA forms by March 8, 2013. Additionally, employers should update their employee handbooks to incorporate the new terms of the FMLA and amend their policies to ensure compliance with the new regulations. For questions regarding the new regulations, to update your current handbook, or to get started on a new employee handbook, please contact the author,Attorney Tara Craft Adams or any other attorney at Peters, Revnew, Kappenman & Anderson, P.A. You can also contact us at 952-896-1700 or firm@seatonlaw.com.