On February 6, 2013, the U.S. Department of Labor (DOL) published final regulations regarding the military leave protections of the Family and Medical Leave Act (FMLA) and which also clarify certain other provisions of the FMLA. As a result of these changes, employers subject to the FMLA will need to modify their FMLA policies (and potentially employee handbooks), make certain amendments to FMLA forms, and post a newly issued FMLA poster.

The regulations become effective: March 8, 2013

Summary of the Major Changes

Non-Military Leave Changes

Employers should note the following "operational" FMLA changes:

• The regulations clarify the minimum increment of leave rules (i.e., that period of time which can be charged against the employee’s FMLA entitlement). In particular, the regulations state:

• • An employer may not require an employee to take more leave than is necessary to address the circumstances that precipitated the need for leave.

• • When tracking leave, an employer must use the smallest of the increments in which it tracks other absences to account for the FMLA leave (and such increments may not exceed 1 hour).
  • The employer may only count an employee’s use of FMLA leave in the amount of leave actually taken, excluding any time after the employee has returned to work. Thus, where an employer expects employees to use the least time possible for FMLA purposes, e.g., where the employee comes to work ½ hour late due to an FMLA-qualifying condition, the employer must waive its normal one-hour increment of leave and put the employee to work immediately – counting only the amount of leave actually taken by the employee against the FMLA entitlement.

The regulations address the varying increments rule. For example, if an employer usually accounts for all types of leave in increments of 15 minutes, but accounts for all non-FMLA leave during the first hour of the workday in 30 minute increments, the employer may also account for FMLA in an increment no greater than 30 minutes only during the first hour of the workday.

• The regulations address the varying increments rule. For example, if an employer usually accounts for all types of leave in increments of 15 minutes, but accounts for all non-FMLA leave during the first hour of the workday in 30 minute increments, the employer may also account for FMLA in an increment no greater than 30 minutes only during the first hour of the workday.
• The DOL has retained the physical impossibility rule, which provides that where it is physically impossible for the employee to commence or end work midway through a shift (sealed lab or the train has left the station), the entire period the employee is forced to be absent can be counted against his/her FMLA entitlement. The DOL clarifies that the charged FMLA leave may only be for the period of actual physical impossibility and cannot be charged past the time the employer could return the employee to an equivalent position. Further, the DOL takes the position that FMLA trumps a collective bargaining agreement that allows seniority to take precedence over an employee’s right to reinstatement to an equivalent position.
• The regulations address an employer’s obligation to comply with the Genetic Information Nondisclosure Act of 2008 (GINA) confidentiality standards. For this purpose, employers should understand that a family member’s condition (and certification thereof) may constitute genetic information of the employee. This provision may require an employer to amend its policies and forms, if it has not previously done so.
• The regulations clarify that an absence protected by the Uniformed Services Employment and Reemployment Rights Act (USERRA) must be credited towards an employee’s eligibility for FMLA leave.

Military Leave Changes

In our experience, the military leave provisions of the FMLA have not been a problem for employers. However, the changes do impact employer policies and forms. Of significant note:

• The regulations address FMLA leave taken by an employee to care for the serious illness or injury of a veteran of the Armed Forces. The regulations: (i) define who constitutes a "covered veteran"; and (ii) incorporate four different alternative standards by which the veteran’s serious illness or injury may be determined. The regulations also announce the DOL’s stance that leave granted to veterans pursuant to the 2009 statutory changes to the FMLA, but prior to the effective date of the final regulations would not "count" as leave for a covered service member’s illness or injury (even though employers may have fully complied with the statutory requirements at the time). Thus, the DOL has created in the new regulations an eligibility "amnesty" period for an employee seeking leave to care for a seriously ill or injured veteran who achieved such status after, or had such status on, the date of the 2009 adoption of the change in the law.
• The regulations permit eligible employees to obtain certification of a service member’s serious injury or illness from any health care provider, not only those affiliated with the Department of Defense, Veterans Administration, or TRICARE Networks (as was previously the requirement).
• The regulations extend qualifying exigency leave to eligible employees who are family members of members of the regular Armed Forces and adding the requirement for all military members to be deployed to a foreign country in order to be on "active duty" under the FMLA.
• The regulations increase the amount of time an employee may take for qualifying exigency leave related to the military member’s Rest and Recuperation leave from five days to up to fifteen days.

• The regulations create an additional qualifying exigency leave category permitting employees to take FMLA to care for the military member’s parent who is incapable of self-care while the military member is on covered active duty.

In addition, concurrent with the new regulations, the DOL has issued a model certification form to address leave to care for the serious illness or injury of a veteran.

Are there any resources available to me?

A copy of the new final regulations may be found here. The DOL has also released an updated poster which employers are required to display and forms which employers may use. This poster replaces the previous version and may be found here. The revised forms are available here.

What employers should do now?

• Because the regulations have modified the circumstances under which qualifying exigency leave must be offered to employees with family members in the military and modified veteran eligibility determinations, it is necessary for employers subject to the federal FMLA to amend their policies and forms to comply with the changes.
• Employers will need to post the new FMLA poster in place of the prior version.
• Employers who reference FMLA in their employee handbooks may need to revise their employee handbooks to incorporate the new terms of the FMLA.