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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.