The U.S. Department of Labor (DOL) issued revisions to certain Family Medical Leave Act (FMLA) regulations that are effective March 8, 2013. In addition, the DOL released new model forms and a notice poster.
MOST NOTABLE CHANGES IN REGULATIONS
The regulation that is anticipated to have the most widespread effect on employers is the clarification of the increments in which employers can require employees to use intermittent FMLA leave. The 2008 regulations had been interpreted to allow employers to require that intermittent FMLA leave be taken in one-hour increments, even if smaller increments were used for other types of leave such as sick leave or vacation. The revised regulation requires that employers use the smallest increment that they use for any other type of leave to calculate intermittent FMLA leave. For example, if an employer accounts for sick leave in 15-minute increments and vacation leave in one-day increments, the employer must allow FMLA leave to be used intermittently in 15-minute increments.
Military Family Leave
The most extensive changes to the FMLA regulations concern the various forms of military family leave.
Qualifying Exigency Leave
FMLA qualifying exigency leave is leave to allow eligible family members of certain military personnel to address issues that arise in connection with certain military deployments. The revised regulations clarify that qualifying exigency leave is available to family members of persons serving in the regular Armed Forces, National Guard or Reserves who are on active duty or called to active duty in a foreign country. The revised regulations increase the maximum number of leave days from 5 to 15that an eligible family member may take to bond with a military member on short-term, temporary rest and recuperation during deployment. Parental care, a new category of qualifying exigency leave, has been added to the existing categories of leave. Parental care exigency leave may be utilized to make arrangements for care of parents of military members.
Military Caregiver Leave
The regulations expand the military caregiver leave to include leave to care for covered veterans who are undergoing medical treatment, recuperation or therapy for a serious injury or illness. A covered veteran is an individual who was discharged or released under conditions other than dishonorable in the five-year period prior to the date the employee’s military caregiver leave begins. The definition of what constitutes a serious injury or illness of a covered veteran is broad and flexible. Military caregiver leave has also been expanded to include care for pre-existing injuries or illnesses of covered servicemembers that were aggravated in the line of duty. The regulations provide that military caregiver leave may be supported by a certification from any health care provider.
2008 vs. 2013 Regulations – Please click here to view the DOL’s side-by-side comparison of the 2008 and 2013 regulations.
NEW MODEL FORMS
Below are links to the revised model forms that should be used immediately. These forms expire on February 28, 2015.
§ WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition
§ WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition
§ WH-381 Notice of Eligibility and Rights & Responsibilities
§ WH-384 Certification of Qualifying Exigency For Military Family Leave
§ WH-385 Certification for Serious Injury or Illness of Covered Servicemember — for Military Family Leave
§ WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave
INSIGHTS FOR EMPLOYERS
§ Federal law requires that all covered employers post theFMLA notice in a conspicuous place, even if no employees are eligible for FMLA leave. The poster can be found on the Department of Labor’s website.
§ Ensure that personnel who are involved in leave determinations are familiar with the updated regulations.
§ Ensure that your company is accounting for intermittent leave in increments of one hour, or shorter increments if other forms of leave are permitted in shorter increments.