United States: The Ever-Expanding FMLA: DOL Issues New Regulations And Guidance

Last Updated: June 30 2013
Article by Maralee Downey

The Family and Medical Leave Act (FMLA) is celebrating its 20th anniversary this year and the Department of Labor (DOL) appears determined to make it a memorable one.

On January 14, 2013, the DOL issued an official administrative interpretation regarding FMLA leave to care for an adult son or daughter with a serious health condition who is incapable of self-care because of a physical or mental disability. The DOL clarified that the child's age at the onset of the disability is irrelevant and, in fact, onset may occur after the age of 18. It further clarified that whether a child has a physical or mental disability is defined by the expansive definition of "disability" set forth in the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). The DOL stated that it will follow the ADAAA's regulations and construe the definition of disability "in favor of broad coverage." The DOL noted that many impairments will satisfy both the ADAAA's definition of disability and the FMLA's definition of serious health condition. The interpretation emphasized that whether an adult child is "incapable of self-care" is a fact specific inquiry, as is the question of whether a parent is "needed to care" for the adult child. The DOL specifically stated that the phrase "needed to care" includes providing psychological comfort and reassurance that would be beneficial to the child. As a practical matter, this new DOL guidance means that many more employees will be entitled to take FMLA leave to care for their adult children. Employers should expect an uptick in these requests and train their personnel accordingly.

On February 5, 2013, less than a month after issuing its interpretive guidance, the DOL published new FMLA regulations which will take effect March 8, 2013. These regulations implement a series of recent changes to the FMLA regarding military leave and airline flight crews. The regulations also clarify the DOL's position concerning the calculation of intermittent leave and remind employers of their obligation to comply with the confidentiality requirements of the Genetic Information Nondiscrimination Act of 2008 (GINA). The most significant changes in the regulations are summarized below.

Military Exigency Leave: The regulations add a new category of exigency leave for "parental care" (similar to the existing child care provision, this new category of leave will allow employees to take time off to arrange for care for parents who are incapable of self-care when the need arises as a result of active duty or a call to active duty). The regulations also increase the maximum number of days for "rest and recuperation" leave from 5 days to 15 days.

Military Caregiver Leave: The regulations clarify that caregiver leave has been expanded to include leave for "covered veterans" who are undergoing medical treatment, recuperation or therapy for a serious injury or illness ("covered veterans" include individuals who left military service--under conditions other than dishonorable--in the five-year period preceding the first day of military caregiver leave). The regulations also clarify that the definition of "serious injury of illness" has been expanded to include pre-existing injuries that were aggravated during military service. Finally, the regulations state that any health care provider may provide a certification to support military caregiver leave (not just those affiliated with the Department of Defense).

Calculating Intermittent Leave: The regulations provide helpful guidance on one of the most troubling aspects of FMLA administration - calculation of intermittent leave. For example, the FMLA provides that when calculating intermittent FMLA leave, employers must use the shortest increment of time that the employer uses to track other forms of leave, provided it is not greater than an hour. The regulations clarify that this does not mean FMLA can always be tracked in one-hour increments. Rather, if an employer allows employees to take vacation or sick leave in 15-minute increments, it must allow employees to take FMLA leave in 15-minute increments

as well. In a similar vein, the regulations clarify that employers may only charge employees for leave that is actually taken, and not for time worked. For example, if an employee arrives at work half an hour late because he/she is returning from an FMLA qualifying leave (e.g. a doctor's appointment), and the employer decides to allow the employee to start work immediately, despite its general rule that all leave be taken in one-hour increments, the regulations state that only the amount of leave actually taken (half an hour) may be counted against the employee's allotment. The employer cannot charge the employee for one-hour of leave, even though its policy says that leave must be taken in one-hour increments.

Airline Flight Crew Eligibility: The regulations provide that an airline flight crew employee will meet the hours-of-service eligibility requirement if he/she has worked or been paid for not less than 60% of the applicable total monthly guarantee or the equivalent and has worked for been paid for not less than 504 hours during the previous 12 months (exclusive of commute time, vacation, medical or sick leave).

Recordkeeping Requirements and FMLA Forms: The new regulations also remind employers of their confidentiality obligations under GINA, to the extent that documents created for FMLA purposes contain family medical history or genetic information. In addition to the regulations, the DOL has published a series of updated forms, including a new FMLA poster. Employers should be sure to replace their current FMLA posters with the revised version, available on the DOL's website. Fortunately, unless you are in the airline business, the new regulations will not require sweeping revisions to existing policies that are already compliant with the recent FMLA statutory amendments. That being said, employers should review current policies, forms, and posters, and update them, as necessary, to conform to the new regulations. It is also a good time to train your HR and managerial staff on these new developments(particularly the expanded definition of "son or daughter" in the context of requests to care for adult children with disabilities and the expanded definition of military leave) so that FMLA requests will be recognized and handled appropriately.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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