The Labor & Employment Law Blog Focusing on legal trends in data security, cloud computing, data privacy, and anything E

Are You Ready For Your New Compliance Obligations Under The FMLA?

Posted in FMLA and Other Leaves of Absence, Labor Law

By:  Lizbeth V. West, Esq.

Effective March 8, 2013, those employers covered under the federal Family and Medical Leave Act (FMLA) will be required to comply with the recently issued regulations from the U.S. Department of Labor (DOL). The majority of the new regulations relate to the FMLA’s military leave provisions and the Airline Flight Crew Technical Corrections Act. However, there are a few other minor changes and requirements, including the requirement that employers replace their FMLA poster with an updated poster by March 8, 2013.

Below is a summary of some of the changes/additions reflected in the new FMLA regulations:

Military Caregiver Leave:

•    A covered veteran has been specifically defined (consistent with the statutory limitations) as a veteran discharged or released from the military, except in the case of a dishonorable discharge, within five years from the date the employee’s military caregiver leave is to begin; and

•   Permits eligible employees to obtain medical certifications of a servicemember’s (current or veteran) serious health condition from any health care provider as defined by the FMLA regulations, not just from one who is affiliated with the DOD, VA, or TRICARE.

Qualifying Exigency Leave:

•    Creates an additional qualifying exigency leave category for parental care leave to provide care necessitated by the covered active duty of the military servicemember for his/her parent who is incapable of self-care;

•   Confirms that qualifying exigency leave is available to eligible employees who are family members of either military personnel in the regular Armed Forces or military members deployed to a foreign country in order to be on “covered active duty;” and

•   Increases the amount of time an eligible employee may take for qualifying exigency leave related to the military member’s Rest and Recuperation (R&R) leave from five (5) days to fifteen (15) days.

Airline Flight Crew Employees:

•   Modifies the annual work hour threshold requirement for airline flight crew members to qualify for FMLA leave. Unlike other employees who must meet the 1,250 hour requirement, airline flight crew employees will meet the hours of service requirement if they have worked or been paid for not less than 60% of their applicable total monthly guaranteed hours and have worked or been paid for not less than 504 hours during the previous 12 months;

•   Airline flight crew members are entitled to 72 days of FMLA leave during a 12 month period for all qualifying reasons other than military caregiver leave, in which case they are entitled to 156 days of leave; and

•   Clarifying that intermittent or reduced schedule leave taken by airline flight crew members cannot be accounted for in increments greater than one day.

Other Changes:

•   Clarifies that when employees take intermittent or reduced schedule leave, employers may use different increments of leave at different times of the day or shift provided the employer tracks FMLA leave using the smallest increment used for other forms of leave subject to a one hour maximum;

•   The definition sections of the regulations has been moved to the beginning of the regulations;

•   The recordkeeping requirements are updated to specify an employer’s obligation to comply with the confidentiality provisions of the Genetic Information Non-Discrimination Act (GINA); and

•   The FMLA optional-use (sample) forms and general notice poster have been removed from the appendices to the regulations. However, the forms have been updated where needed and are available on the DOL’s website.

DOL Resources:

•   The DOL’s new FMLA poster is available on the DOL’s web site at: https://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf.
•   The DOL’s optional-use FMLA forms are available on the DOL’s web site at http://www.dol.gov/whd/fmla/2013rule/militaryForms.htm.

WHAT COVERED EMPLOYERS SHOULD DO:

  1. Post the new FMLA poster by March 8, 2013; and
  2. Review their existing FMLA policies, notices, and leave administration documents to ensure they are accurate and up to date.

Beth West and the other employment attorneys at Weintraub Tobin are happy to assist employers with their compliance obligations under the FMLA, California’s Family Rights Act, and other statutory leave and accommodation laws. Feel free to contact them with your employment law needs.