New FMLA Regulations To Take Effect On March 8

February, 2013


On March 8, 2013, the U.S. Department of Labor (DOL)’s final rules on changes to the Family and Medical Leave Act (FMLA) will take effect.

New FMLA regulations have been added to the FMLA poster, required to be posted by all covered employers. The revised poster, available here, is required to be posted by March 8, 2013, the effective date of the new FMLA regulations.

Below is a summary of the significant changes to the regulations that employers may face with their employees. As a reminder, these changes are only FMLA changes. Oregon Family Leave Act (OFLA) and Oregon Military Family Leave Act (OMFLA) regulations have not changed, and generally where OFLA or OMFLA regulations provide a greater benefit to the employee, that law becomes primary and must be applied.

Military Caregiver Leave —

FMLA allows for employees to take leave to care for a spouse, son, daughter, parent, or next of kin of the employee who is a member of the Armed Forces and is recovering from a serious illness or injury incurred in the line of duty on active duty. The new regulations now include covered veterans, not just members of the Armed Forces who are currently serving. FMLA regulations define a covered vet as an individual discharged or released any time during the 5-year period prior to the first date of the employee’s FMLA leave to care for the covered veteran.

The definition of "serious illness” is also clarified in the new FMLA regulations to include any injury or illness that existed before the beginning of the service member’s active duty which was aggravated by service in the line of active duty.

Qualifying Exigency Leave —

Previously, FMLA allowed employees to take leave for a qualifying exigency arising out of the fact that the spouse, son, daughter, parent of the employee is a member of the National Guard or a reservist. The new regulations clarify that the law covers family members of employees in the National Guard, Reserves and the Regular Armed Forces. However, leave for qualifying exigencies for members of the Armed Forces only covers those service members who are deployed to a foreign country.

The new regulations also specifically allow for exigency leave for a service member’s spouse, parent, or child to care for the service member's parent, when that parent is incapable of self-care. In this situation the need for leave is only covered if the service member has been called to active duty. For example, a spouse of a service member called to active duty may take leave to arrange for the care of the service member’s father that is unable to care for himself.

An employee may take leave to spend time with a family member who is on temporary rest and Recuperation leave during deployment. Previously, the maximum number of days allowed for this leave was five. The new regulations increase the number of days an employee is eligible to take leave for this time with a service member to 15.

Increments of Intermittent FMLA Leave —

FMLA regulations require employers to provide intermittent/reduced schedule FMLA leave in increments no greater in length than what the employer would allow for any other type of leave (i.e. PTO, Vacation, Sick leave), as long it was not greater than one hour. The new regulations clarify that the employer may not require the employee to take more leave than necessary for the qualifying reason for the absence.

For example, assume an employer tracks PTO/vacation time off for all employees in 10 minute increments of time. Due to a qualifying need for protected intermittent leave the employee arrives to work 5 minutes late. in this situation the employer may only track 5 minutes of FMLA time for the employee even though the minimum increment of tracking for all other leave purposes is 10 minutes.

Airline Flight Crew Employees —

The new regulations clarify that for covered airline flight crew employees the hours of service requirement to be eligible for FMLA will be met if during the previous 12-month period the airline flight crew employee has worked or been paid for not less than 60% of the applicable monthly guarantee, and has worked or been paid for not less than 504 hrs (not including commute time, vacation, sick, or medical leave).

Additionally, an eligible airline flight crew employee is entitled to 72 days for one or more of the FMLA-qualifying reasons other than military caregiver leave. For military caregiver leave the airline flight crew employee is eligible to take up to 156 days for military caregiver leave.

If you have an employee requesting leave that falls under one of these new changes to the FMLA regulations and you have questions about administering the leave, please contact us for assistance.

 

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