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U.S. Department of Labor Issues Final Rule Implementing Amendments to the Family and Medical Leave Act

March 7, 2013

Wolff & Samson Employment Law Alert

In February 2013, the United States Department of Labor issued a Final Rule, releasing revised regulations (the “Revised Regulations”) to the Family and Medical Leave Act (“FMLA”). In addition to other changes to the current FMLA regulations, the Revised Regulations implement recent amendments to the FMLA made by the National Defense Authorization Act (“NDAA”) and the Airline Flight Crew Technical Corrections Act (“AFCTCA”), both enacted in 2010.

The NDAA amended and expanded the provisions regarding military caregiver leave and qualifying exigency leave, both made available pursuant to the 2008 amendments to the FMLA. The AFCTCA amended the FMLA to provide new provisions applicable to airline flight crewmembers and attendants. Accordingly, the Revised Regulations incorporate these recent changes to the FMLA , and clarify other provisions of the FMLA*, as discussed in further detail below.

Military Caregiver Leave

The NDAA amended the FMLA to permit eligible employees to take military caregiver leave to care for (a) covered veterans, and (b) current service members with a serious injury or illness that existed prior to service and that was aggravated in the line of duty during active duty. Previously, military caregiver leave was available only to care for injured servicemembers who were still in the military. Moreover, the prior regulations denied coverage for preexisting serious injuries or illnesses aggravated by active duty military service.

The Revised Regulations clarify the changes made to the military caregiver leave by the NDAA, and amend the prior regulations to include leave to care for a covered veteran. Under the Revised Regulations, a “covered veteran” is one who was discharged or released under conditions other than a dishonorable discharge in the five-year period prior to the date the employee’s military caregiver leave commences. A “serious injury or illness” includes a pre-existing injury or illness that was aggravated by service in the line of duty in the Armed Forces and manifested itself before or after the individual became a veteran.

The Revised Regulations also provide that military caregiver leave may be supported by a certification from any health care provider, not just a health care provider who is a part of the Department of Defense or TRICARE. Moreover, if the servicemember is a veteran enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers, the employee can present documentation of the enrollment as the "certification," which will be sufficient as a certification even if the employee is not the caregiver designated on enrollment documents. An employer may, however, request documentation confirming the employee's familial relationship with the covered veteran.

Qualifying Exigency Leave

The NDAA also expanded the FMLA to allow an eligible employee to take qualifying exigency leave when a family member who is in the Armed Forces is deployed to a foreign country. Previously, such leave was only available to eligible employees whose family member was a National Guard member or military reservist.

The Revised Regulations also now include “Parental Care” as a new category of qualifying exigency leave. An eligible employee (who is the spouse, child or parent of a military member) is entitled to take qualifying exigency leave to care for such military member’s parent who is incapable of self-care when such replacement care is necessitated by the military member’s absence due to active military duty.

Furthermore, the Revised Regulations modify “Rest and Recuperation” leave provided for under prior regulations. Previously, an eligible employee was able to take up to five days of leave to spend time with a military member while on a brief leave during deployment. The Revised Regulations extend the maximum duration for “Rest and Recuperation” leave to 15 days.

USERRA Protections

The Revised Regulations also clarify certain provisions of the Uniformed Services Employment and Reemployment Rights Act of 1994 (the “USERRA”), which provides job and employment benefits protection for members of the military upon return to their civilian jobs.

The Revised Regulations provide that the protections afforded by USERRA extend to all military members (active duty and reserve). They also clarify that all periods of absence from work due to or necessitated by USERRA-covered service are counted for purposes of determining eligibility if the employee needs FMLA leave. This is a significant expansion since simply considering the period of military service (as provided by the current regulations) may be significantly shorter than the entire period the employee is absent from work.

Intermittent Leave

In what may prove to be an administrative nightmare for employers and HR professionals, the Revised Regulations also address how intermittent FMLA leave or reduced schedules are to be charged against an employee’s annual 12-week entitlement. The Revised Regulations now require an employer to account for FMLA leave time using the smallest increment used to account for any other form of leave offered by the employer, not to exceed one hour. For example, if an employer accounts for the use of vacation or personal time off in increments of one hour and the use of sick leave in increments of a half hour, then FMLA leave use must be calculated using the smaller half hour increment. Moreover, even if an employer accounts for all other forms of leave in increments of greater than one hour (such as a half day), FMLA time must still be accounted for in increments of only one hour.

Genetic Information Non-Discrimination Act of 2008

In 2008, the Genetic Information Non-Discrimination Act (“GINA”) was enacted to prohibit discrimination on the basis of genetic information with respect to health insurance and employment. The Revised Regulations update the recordkeeping requirements of the FMLA to specifically require that any FMLA records and documents related to medical certifications or medical histories of employees or their family members that contain family medical history or genetic information (as defined in GINA) be maintained in accordance with GINA’s strict confidentiality requirements.

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The Revised Regulations go into effect on March 8, 2013. The DOL has released updated FMLA forms to comply with the Revised Regulations, which are available through the DOL’s website. Employers retain the right to use their own forms so long as such independent FMLA forms do not request more information than the DOL’s forms.

The DOL has also issued a new FMLA poster, which summarizes the critical provisions of the FMLA that employees should be aware of, including the procedures for filing a complaint. The new poster, effective as of March 8, 2013, must be posted in a conspicuous place where all employees and applicants may see it. The poster must be displayed at all locations of a covered employer even if there are no eligible employees at the location. As with other posters required under federal law, electronic posting is permitted so long as it meets the other requirements. The new FMLA poster may be found here: http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf.

Prior to March 8th, 2013, employers should review their current FMLA policies to ensure that these new regulations are incorporated into their workplace operations. Moreover, employers should review current recordkeeping policies to make sure that the GINA confidentiality requirements have been implemented to protect medical documentation and records provided to the employer.

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* The changes made to the FMLA and the Revised Regulations by AFCTCA are not addressed in this Alert. Should you have any questions regarding such changes, please contact one of the attorneys below.

For more information, please contact:

Catherine P. Wells | Member of the Firm | (973) 530-2051 | cwells@wolffsamson.com

Margaret O’Rourke Wood | Member of the Firm | (973) 530-2063 | mwood@wolffsamson.com

Denise J. Pipersburgh | Associate | (973) 530-2090 | dpipersburgh@wolffsamson.com

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