Member Article

The Department of Labor’s Wage and Hour Division is proposing changes to the regulations that govern the Family and Medical Leave Act (the “FMLA” or the “Act”). The proposed changes include provisions relating to an employer’s ability to opt to use different increments of FMLA under certain circumstances and clarify an employer’s responsibility to reinstate an employee after FMLA leave in situations where it may be impossible, as opposed to inconvenient, to reinstate an employee mid-shift. The changes would also remove optional-use forms and notices from the FMLA. Finally, the proposed changes reflect new statutory amendments to the FMLA contained in the National Defense Authorization Act (the “NDAA”) and in the Airline Flight Crew Technical Corrections Act (the “AFCTCA”). The Division is accepting public comments until April 16, 2012.

“Shortest increment” rule

In its proposed regulations, the Department of Labor rescinds some provisions that previously gave employers more flexibility in their implementation of FMLA leave. The biggest proposed change: Employers would be required to track FMLA leave in the smallest increments their payroll systems use to track work time. The Department seeks to delete a provision added to the FMLA in 2009 that permitted employers to use different increments of FMLA leave under certain circumstances in favor of the more general principle of using the employer’s own shortest increment of recorded time for all FMLA leaves. In short, the new regulation means that if an employer calculates time worked in 6-minute increments for payroll purposes, it must calculate FMLA leave in the same 6-minute increments.

Mid-shift reinstatement and forms     

Another proposed deletion from the 2009 regulations would severely limit the circumstances under which an employer can delay reinstatement of an employee returning to work mid-shift following an FMLA leave, to exclude application of this provision to situations where such mid-shift reinstatement is merely inconvenient as opposed to genuinely impossible. And finally, the new regulations remove various optional-use forms and notices from the FMLA in an effort to accelerate the clearance process when forms must be amended to reflect statutory changes and suggestions from the public 

Changes to the Military Family Leave entitlements under the FMLA

The current FMLA military leave provisions provide two types of leave to eligible employees with covered family members serving in the military: military caregiver leave and qualifying exigency leave. The proposed changes to both types of military leave expand the availability of such leave, and therefore may have significant ramifications for employers.

1. Military Caregiver Leave: Veterans; “Serious illness or injury” defined; Certification
Under the current framework of military caregiver leave, eligible employees are entitled to up to 26 workweeks of FMLA leave in any 12 month period to care for a covered family member who is a current active service member with a serious illness or injury incurred in the line of duty. The proposed changes to the FMLA will implement provisions of the NDAA expanding eligibility for FMLA military caregiver leave to include veterans who were active members of the military (including active members of the National Guard and Reserves) within the past 5 years. Eligible employees may take regular FMLA leave if the veteran is a spouse, parent, or child (under 18 or disabled) with a serious health condition, regardless of when the veteran separated from military service. The proposed changes also clarify the interplay between the VA’s Program of Comprehensive Assistance for Family Caregivers and the FMLA.

The NDAA also expanded the definition of a serious injury or illness to include preexisting conditions aggravated by service in the line of duty. Finally, the proposed regulations also expand the types of health care providers who can provide the medical certification necessary to support a request to take military caregiver leave, to include providers unaffiliated with the military.
    
2. Qualifying Exigency Leave expanded
Currently, an eligible employee is entitled to take qualifying exigency leave if he or she has a spouse, parent or child called up for active duty in the National Guards or Reserves and certain exigencies arise related to the call-up of their family member. The proposed changes to the FMLA will expand qualifying exigency leave to eligible employees with family members in the Regular Armed Forces, but restricts eligibility for this type of leave to situations where the military member is deployed to a foreign country. Such leave may be used by eligible employees to deal with financial, legal or child care issues related to a qualified family member’s call-up or deployment overseas, as well as to attend certain military events, to spend time with the family member during rest and recuperation leave, and for other exigencies. The proposed regulations also expand the amount of FMLA leave that an eligible employee may take to spend time with a covered family member during rest and recuperation time from the current limit of five days to fifteen days. 

Changes to the FMLA for airline flight crews

The AFCTCA addresses scheduling requirements unique to the airline industry and airline flight crew employees. Under the proposed regulations, an airline flight crew employee will meet the FMLA eligibility requirement if he or she has worked or been paid for not less than 60 percent of the applicable total monthly guarantee (or its equivalent) and has worked or been paid for not less than 504 hours during the previous 12 months, excluding personal commute time or time spent on vacation, medical or sick leave.
   
Implications for employers

Many of these provisions are already enforceable by virtue of the amendments to the NDAA and AFCTCA that took effect on October 29, 2009 and December 21, 2009, respectively. Because these proposed changes expand some existing regulations to areas previously not contemplated by the FMLA while restricting or deleting others, employers must educate themselves in order to appropriately evaluate and respond to requests for FMLA leave.    

Persons interested in submitting comments on the proposed FMLA changes are encouraged to do so at www.regulations.gov.