On March 8, 2013, various amendments to the Family Medical Leave Act regulations became effective. The principal changes fall within two areas: (1) expanding both the coverage and qualifying injuries for military leaves; and (2) specifying different eligibility standards for airline flight crews. The Department of Labor also released several new and revised FMLA forms; these forms are discussed at the end of this alert and are also available on the DOL’s website. This post provides an overview of the most significant changes. For the complete 2013 changes, see 29 C.F.R. 825.100 et. seq.
The new amendments include changes to FMLA military leave provisions that were originally added in 2009. For Qualifying Exigency Leave, these new rules:
- broaden the availability of leave for employees due to a qualifying exigency by including members who are in the Regular Armed Forces (previously applied only to Reserve and National Guard family members) and deployed to a foreign country;
- expand Qualifying Exigency Leave to include parental care for parents of service members who are incapable of self-care; and
- lengthen the Rest and Recuperation (R& R) Qualifying Exigency Leave from 5 days to 15 days based on the number of days in the R&R leave order.
For Military Caregiver Leave, the new rules:
- broaden the types of injuries that qualify for Military Caregiver Leave by including injuries that preexisted the family member’s military service but were aggravated during active duty; and
- enlarge the categories of service members to include veterans, provided the veteran was discharged (not dishonorably) within the five years before the beginning date of the caregiver leave. Note: due to a delay between the changes to the FMLA statute to include veterans and the implementation of these changes by DOL, if the veteran’s discharge occurred before the effective date of these amended regulations (3/8/13), the period from October 28, 2009 to March 8, 2013 is excluded from any five-year period when determining whether the veteran family member qualifies the employee for military caregiver leave.
AIRLINE FLIGHT CREW EMPLOYEES
The new amendments incorporate the following provisions applicable only to flight crew employees (including both crew members and flight attendants) to address the unique work schedules of these employees:
- 72 days of FMLA leave for birth/care of newborns, adoption/foster care placements, serious health conditions of spouses/children/parents, and military qualifying exigency leave;
- 156 days of FMLA leave for military caregiver leave;
- special rules for hours of service requirements – 60% of applicable monthly guarantee but not less than 504 hours during the last 12 months (as opposed to 1250 hours required for other, nonairline employees); and
- employers of flight crew employees are required to maintain records of both the employees’ applicable monthly guarantees and hours scheduled.
UPDATE OF FMLA FORMS
The use of DOL forms for FMLA administration remains optional but is a good way for employers to assure compliance without developing their own forms. If these DOL forms are not used, the employer may not seek more information than is requested in the DOL form.
- Form WH-385/Certification for Serious Injury or Illness has been changed to two forms: (1) the new certification form for certification of serious illness/injury of a veteran for purposes of Military Caregiver Leave (Form WH-385-V) and (2) the certification form for serious illness/injury of current service members;
- Form WH-385 was revised to apply only to “current service member[s]” as reflected in the revised form’s title (replacing the term “covered service member” throughout). Section II recognizes the new category of healthcare providers permitted to provide certification of the current service member’s serious injury/illness. The healthcare provider is directed to include pre-existing serious injuries or illnesses aggravated in the line of active duty to conform with the expansion of qualifying injuries and illnesses under these amendments;
- Notice of Eligibility and Rights and Responsibilities form (Form WH-381) has been revised to refer to “covered active-duty” with respect to Qualifying Exigency Leave (to be consistent with the new definition of covered active-duty described above) and the reference to “1250” hours is eliminated in relation to required hours of service (recognizing that airline flight crew employees now have a different number of required service hours); and
- Certification of Qualifying Exigency for Military Leave form (Form WH-384) has also been revised to refer to “covered active-duty” under Section II, to add “documentation confirming the military members rest and recuperation leave”(to ascertain the number of days leave permitted under the new amendments) and to expand the list of “third-party” appointments to include “staff at day care facilit[ies]” under Part A. References to “parental care” are added in Part C to include this newly recognized exigency.
STEPS FOR EMPLOYERS
In light of the above-described amendments, employers should consider the following steps:
- use the DOL’s new form (Form WH-385-V) and revised forms (Forms WH-381, WH-384 and WH-385) beginning March 8, 2013 or revise the employer’s own forms;
- review and revise FMLA policies to incorporate the new provisions for military caregiver leave and military qualified exigency leave;
- use the new requirements for eligibility of air flight crew employees and conform with new record-keeping mandates for those employees;
- train human resources personnel and those supervisors administering FMLA on the new FMLA regulations; and
- update FMLA workplace posters to incorporate new amendments.