On February 6, 2013, the United States Department of Labor (DOL) issued new Family and Medical Leave Act (FMLA) regulations. The new rules went into effect on March 8, 2013, and make several key changes to military caregiver leave, qualifying exigency leave and leave eligibility for airline flight crew employees. The regulations also clarify how to calculate intermittent FMLA leave and provide guidance on employers’ recordkeeping requirements.

Military Caregiver Leave

The new regulations expand the availability of military caregiver leave to eligible employees whose family members are recent veterans with a “serious injury or illness.” A “serious injury or illness” is one that either occurs while in the line of duty or is an exacerbation of a preexisting condition while in the line of duty. A “serious injury or illness” includes conditions that may not arise until up to five years after the veteran has left active service, unless the veteran received a dishonorable discharge.

Prior regulations limited “healthcare providers” for certification of military caregiver leave to only providers authorized by the United States Departments of Defense and Veteran Affairs. The new rules broaden the definition of “healthcare providers” to include any provider who meets the definition under the FMLA’s regulations. Employers may also seek second or third opinions for certifications from non-Department of Defense or Veteran Affairs healthcare providers.

Qualifying Exigency Leave

Employees with family members in the Regular Armed Forces (in addition to the National Guard and Reserves) who are on or have been called to active duty may qualify for exigency leave. “Active duty” now requires deployment to a foreign country.

Employees may also take qualifying exigency leave to care for a military member’s parent who is incapable of self-care, if the need for care is due to the military member’s active duty. This type of leave may be used to arrange for alternative care, provide care on an immediate need basis, or to admit or transfer the parent to a care facility.

The new regulations also increase the number of days during which an eligible employee may bond with a military member on “rest and recuperation” from five to 15 calendar days. IN addition, this type of leave may be taken on an intermittent basis.

Airline Flight Crew Employees

The new regulations clarify the FMLA eligibility requirements for airline flight crew employees. These employees meet the FMLA service eligibility requirements if: (1) they have worked or been paid for at least 60% the monthly guaranteed hours; and (2) they have worked or been paid for at least 504 hours during the previous 12 months. Flight crew employees may also become eligible for FMLA leave by meeting the standard requirement of: (1) working for the employer for at least 12 months; (2) working at least 1,250 hours in the previous 12 months prior to the start of FMLA leave; and (3) working at location where at least 50 employees are employees at the location or within 75 miles of the location.

Calculating Intermittent Leave and Recordkeeping Requirements

The new regulations provide much needed clarification regarding how to calculate intermittent leave under the FMLA. Employers must track FMLA leave using the smallest increment used for other forms of leave, subject to a one-hour maximum. So, if the employer allows employees to take vacation time in 15-minute increments, then it must allow employees to take FMLA leave in 15-minute increments as well.

The DOL also updated recordkeeping requirements to require employers to comply with the confidentiality requirements of the Genetic Information Non-Discrimination Act (GINA). GINA requires that all FMLA forms requesting medical information contain “safe harbor” language. Interestingly, the DOL FMLA forms still do not contain this language . (Of course, California employers should not use the DOL forms anyway, because the California Family Rights Act (“CFRA”) imposes a number of requirements on employers that the FMLA does not.)

Tips for Employers

To comply with the new regulations, employers should post the new FMLA poster, which went into effect on March 8, 2013. The new poster can be found on the DOL’s website at: http://www.dol.gov/whd/regs/compliance/posters/fmla.htm.

Employers should also update their FMLA policies to conform to the new regulations. California employers must ensure their policies also comply with the CFRA as well.

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