The Department of Labor (DOL) recently issued final regulations addressing an amendment to the Family and Medical Leave Act (FMLA) that requires employers covered by the FMLA to provide certain types of military-related leave. The regulations, which will take effect on March 8, 2013, determine how the provisions  are to be interpreted and implemented. The DOL’s new regulations will require employers to update their FMLA policies, posters and forms and, among other things, change the way they administer family leave for servicemembers caregivers and employees with family members in the military. The text of the Final Rule can be found here: www.dol.gov/WHD/FMLA/2013rule/.

A brief overview of some of the changes in this Final Rule is set forth below. Please take specific note of the new FMLA poster requirement and new forms near the end of this Alert.

Qualifying Exigency Leave

The Final Rule revises regulations dealing with qualifying exigency leave to (a) include eligible employees with family members serving in the regular armed forces in a foreign country; (b) more clearly define what constitutes a qualifying exigency and adds a new qualifying exigency for parental care; and (c) increase the length of time an eligible family member may take for qualifying exigency leave for rest and recuperation from five days up to a maximum of 15 days.

Military Caregiver Leave

With respect to military caregiver leave, the new Rule: (a) specifically defines what conditions constitute a serious injury of illness for a current member of the Armed Forces or a covered veteran, and expands that definition; (b) defines who is a covered veteran; and (c) allows private physicians, outside the military healthcare system, to certify a serious injury or illness, but allows employers to request a second or third opinion if the employer questions the certification of one of these private physicians.

Calculation of Intermittent or Reduced Schedule Leave

The Final Rule also clarifies the calculation of intermittent leave for FMLA purposes to make clear that an employer cannot require that intermittent FMLA leave be taken in increments longer than the shortest period of time that the employer uses to account for use of other forms of leave provided that it is not greater than one hour and provided further that FMLA leave entitlement may not be reduced by more than the amount of leave actually taken.

New FMLA Poster and New 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 and downloaded atwww.dol.gov/whd/regs/compliance/posters/fmla.htm. 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). The following FMLA forms can now be found on the internet atwww.dol.gov/whd/fmla/2013rule/militaryForms.htm: 

• WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition (PDF)
• WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition (PDF)
• WH-381 Notice of Eligibility and Rights & Responsibilities (PDF)
• WH-382 Designation Notice (PDF)
• WH-384 Certification of Qualifying Exigency For Military Family Leave (PDF)
• WH-385 Certification for Serious Injury or Illness of Current Servicemember – for Military Family Leave (PDF)
• WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (PDF)

 Conclusion

The FMLA generally applies to employers who have at least 50 employees within a 75-mile radius of a single site of employment. If the FMLA applies to your company, in light of these new regulations, you will want to review and likely revise your written FMLA policies and ensure your compliance going forward.