Need to Know: Several New FMLA Rules Take Effect March 8, 2013

“The U.S. Department of Labor (DOL) recently issued new Family and Medical Leave Act (FMLA) regulations that … include revisions to the required postings and optional use forms, and may require changes in your timekeeping system for tracking and calculating intermittent FMLA leave. There are additional substantive changes related to military exigency and caregiver leave, as well as to airline flight crews.” (Leonard, Street and Deinard)

Employers and HR managers take note: recently implemented Family and Medical Leave Act regulations – including new rules for military families, flight crews, and employees with intermittent schedules – go into effect on Friday, March 8, 2013.

Here’s what you need to know:

1. Military caregiver leave expanded:

“Under the FMLA, a spouse, parent, son, daughter, or next of kin of a covered servicemember with a serious illness or injury may take up to 26 workweeks of unpaid, job-protected leave during any 12-month period to care for that servicemember… The Final Rule expands this leave in a couple of ways. First, the Final Rule expands the definition of ‘serious injury or illness’ to include injuries that preexisted that servicemember’s active duty that were aggravated by service in the line of duty on active duty. Second, the Final Rule expands military caregiver leave to include family members of ‘covered veterans’, in addition to current servicemembers.” (Butler Snow)

2. Flight crew leave rules finalized:

“At long last the Department of Labor has issued final regulations implementing the Airline Flight Crew Technical Corrections Act (AFCTCA), which established new standards for airline flight crewmembers to qualify for FMLA leave…There are five (5) significant components of these regulations: (1) explanation of the new crewmember eligibility standards; (2) establishment of a uniform FMLA leave bank for crewmembers; (3) implementation of a new manner of calculating crewmember FMLA leave usage; (4) retention of the ‘physical impossibility exception,’ which permits extending FMLA leave when crewmembers cannot immediately be returned to service; and (5) establishment of unique recordkeeping obligations.” (FordHarrison)

3. Leave for employees with intermittent or reduced schedules clarified:

“The DOL did not make any substantive changes to the manner in which an employer calculates an employee’s use of intermittent or reduced schedule FMLA leave. However, the Final Rule clarifies that an employer may not require an employee to take more leave than necessary to address the circumstances that precipitated the need for leave. The Final Rule also reiterates that an employer must account for FMLA leave in an increment no greater than the smallest increment the employer uses to account for any other forms of leave, so long as it is not greater than one hour.” (Duane Morris)

4. New FMLA poster and forms required:

“The DOL is requiring a new FMLA poster and use of new FMLA forms effective March 8, 2013. A copy of the poster can be found on the DOL’s website… DOL has also created at least one new form and revised other key forms (the new form is WH-385-V, and the revised forms include WH-381, WH-384, and WH-385).” (Armstrong Teasdale)

5. GINA confidentiality confirmed:

“The new regulations also confirm employers’ confidentiality obligations under the Genetic Information Nondiscrimination Act of 2008 (GINA). The DOL indicated in its final rule that GINA allows employers to disclose genetic information or family history obtained by the employer so long as it is consistent with the FMLA. Nevertheless, the DOL did not propose adding any GINA safe harbor language in the new forms. In a prior post, we recommended GINA safe harbor language for employers to include in medical certification.” (Franczek Radelet)

The updates:

Additional reading:

Find additional Family and Medical Leave Act updates at JD Supra Law News>>