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New FMLA Regulations Require Employer Attention


New FMLA Regulations Require Employer Attention

The U.S. Department of Labor (DOL) celebrated the 20th Anniversary of the Family and Medical Leave Act (FMLA) on February 5, 2013 by issuing a revised Final Rule implementing FMLA expansions.  The changes were effective March 8, 2013 and expanded FMLA protection for military families, airline personnel and flight crews.  The new FMLA regulations also require covered employers to update their FMLA posters and policies. 

The Final Rule amends regulations of the FMLA in order to implement amendments to the military leave provisions of the FMLA made by the National Defense Authorization Act for Fiscal Year 2010 and regulations to implement the Airline Flight Crew Technical Corrections Act.  The Final Rule also implements clarifying changes for the calculation of intermittent and reduced schedule leave. 

A Highlight of the Major Changes

Changes Regarding Military Leave Provisions

·               Extends the availability of FMLA leave to family members of members of the National Guard, Reserves, and the Regular Armed Forces for qualifying exigencies arising out of the servicemembers’ deployment

·               Adds a qualified exigency leave category for parental care leave, allowing an employee to take leave to care for a military member’s parent who is incapable of self-care when the care is needed due to the servicemember’s covered active duty

·               Increases the amount of time an eligible family member can take for Rest and Recuperation from five days to a maximum of 15 calendar days to spend with a military member on rest and recuperation leave orders

·               Extends FMLA military caregiver leave for family members of current servicemembers to include an injury or illness that existed prior to service and was aggravated in the line of duty

·               Extends FMLA military caregiver leave to family members of certain veterans with serious injuries or illnesses

·               Provides that periods of absence from work by qualifying military members which are due to USERRA-covered service is counted in determining an employee’s eligibility for FMLA leave

New Regulations Regarding Airline Flight Crewmembrs and Flight Attendants

·               Establishes special eligibility requirements specifically for airline flight crewmembers and flight attendants for FMLA leave

·               Establishes new regulations for the calculation of leave for airline flight crewmembers and flight attendants, as well as special recordkeeping requirements

Other Clarifying Amendments To Calculation of Intermittent and Reduced Schedule Leave

·               Clarifies that an employer may not require an employee to take more leave than necessary

·               Clarifies that FMLA leave may only be counted against an employee’s FMLA entitlement for leave actually taken and not for time that is worked

·               Clarifies that an employer must track FMLA leave using smallest increment of time used for other forms of leave with a one hour maximum

·               Clarifies that the physical impossibility exception is to be applied only in the most limited circumstances, and the employer has the responsibility to restore the employee to the same or equivalent position as soon as possible  

Takeaways For Employers

1.              Post a new FMLA poster.  Effective March 8, 2013, all employers must post a new FMLA poster reflecting the revised regulations.  The updated poster can be found at http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf.

2.              Update your FMLA forms.  Also effective March 8, 2013, the DOL’s updated FMLA forms should be used.  The forms can be found at http://www.dol.gov/whd/fmla/

3.              Educate yourself on the changes to the FMLA.  A helpful side-by-side comparison is available from the DOL at http://www.dol.gov/whd/fmla/2013rule/comparison.htm

Revise FMLA Policies and Procedures.  It is important that with these new changes, policies and procedures relating to FMLA leave are reviewed and revised to comply with the updated regulations.