In early February, the Department of Labor issued new final regulations regarding the amendments to military family leave, flight crew eligibility and a handful of other relatively minor issues.
Because of the changes in the regulations, there is an obligation to begin using updated FMLA notice and certification forms and to post the new FMLA poster, effective March 8, 2013.
The following is an explanation of the changes:
Q. Why is the Department of Labor revising the Family and Medical Leave Act regulations?
A. The Department is revising the regulations to implement and interpret two statutory amendments to the Family and Medical Leave Act (FMLA): the National Defense Authorization Act for Fiscal Year 2010 (FY 2010 NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA).
Q. How did the FY 2010 NDAA change the military leave entitlements?
A. The FY 2010 NDAA amended the FMLA’s military family leave provisions to expand the availability of military caregiver leave and qualifying exigency leave. The FY 2010 NDAA extended military caregiver leave to eligible employees whose family members are recent veterans with serious injuries or illnesses, including conditions that do not arise until after the veteran has left the military. The FY 2010 NDAA also expanded the definition of a serious injury or illness for both current servicemembers and veterans to include serious injuries or illnesses that result from a condition that existed before the servicemember’s active duty service and was aggravated by service in the line of duty on active duty.
In addition, the FY 2010 NDAA expanded qualifying exigency leave to eligible employees with family members serving in the Regular Armed Forces, in addition to the National Guard and Reserves. The FY 2010 NDAA also added the requirement that for all qualifying exigency leave the military member (National Guard, Reserves, Regular Armed Forces) must be deployed to a foreign country.
Q. How does the Final Rule change the military caregiver leave provisions?
A. Military caregiver leave entitles an eligible employee who is the spouse, parent, son, daughter, or next of kin of a covered servicemember with a serious illness or injury to take up to a total of 26 workweeks of unpaid, job-protected leave during any single 12-month period to care for the servicemember. Before the FY 2010 NDAA was enacted, military caregiver leave was limited to eligible employees who were the family members of current servicemembers with a serious injury or illness incurred in the line of duty on active duty. The Final Rule expands military caregiver leave to eligible employees who are the family members of certain veterans with a serious injury or illness incurred or aggravated in the line of duty on active duty and that manifested before or after the veteran left active duty. The Final Rule expands the definition of serious injury or illness for a current servicemember to include injuries or illnesses that existed prior to the servicemember’s active duty but were aggravated in the line of duty on active duty.
Q. Does the Final Rule allow eligible family members to take FMLA military caregiver leave for all veterans with a serious injury or illness?
A. No. The Final Rule limits FMLA military caregiver leave to family members of certain covered veterans. A veteran who is undergoing medical treatment, recuperation or therapy for a serious injury or illness is a covered veteran if he or she: (1) was a member of the Armed Forces (including a member of the National Guard or Reserves); (2) was discharged or released under conditions other than dishonorable; and (3) was discharged within the five-year period before the eligible employee first takes FMLA military caregiver leave to care for the veteran.
Q. How is the five-year period for a covered veteran determined?
A. The Final Rule permits eligible employees to begin taking military caregiver leave up to five years after their family member was discharged or released from the military. The employee’s first date of leave must be within the five-year period; however, the employee may continue to take such leave throughout the “single 12-month period” that is applicable to military caregiver leave, even if the leave extends beyond the five-year period.
For a veteran who was discharged before the effective date of this Final Rule, the Final Rule excludes the period of time between October 28, 2009 (the FY 2010 NDAA’s enactment date) and the effective date of this Final Rule in calculating the veteran’s five-year period. By excluding this period of time, the Final Rule protects the military caregiver leave entitlement for the family members of veterans whose five-year period either expired or was diminished between October 28, 2009 and the effective date of this Final Rule. For example, if a servicemember retired on October 28, 2007, on October 28, 2009 he or she would have had three years remaining of the five-year period. The family member will have three years, starting on March 8, 2013, within which he or she can begin to take military caregiver leave to care for that veteran. Likewise, if a servicemember was discharged on December 1, 2010, the five-year period will begin on March 8, 2013 and extend until March 8, 2018. If the servicemember is discharged on or after March 8, 2013, the five-year period begins on the date of discharge.
Q. What is a serious injury or illness for a covered veteran?
A. The Final Rule defines a serious injury or illness for a covered veteran as an injury or illness that was incurred by the veteran in the line of duty on active duty in the Armed Forces or that existed before the veteran’s active duty and was aggravated by service in the line of duty on active duty, and that manifested before or after becoming a veteran, and that is either:
- a continuation of a serious injury or illness that was incurred or aggravated when the veteran was a member of the Armed Forces and rendered the servicemember unable to perform the duties of the servicemember’s office, grade, rank, or rating; or
- a physical or mental condition for which the veteran has received a U.S. Department of Veterans Affairs Service-Related Disability Rating (VASRD) of 50 percent or greater, and the need for military caregiver leave is related to that condition; or
- a physical or mental condition that substantially impairs the veteran’s ability to work because of a disability or disabilities related to military service, or would do so absent treatment; or
- an injury, including a psychological injury, on the basis of which the veteran is enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.
The family member of a veteran only needs to show that the veteran meets one of these definitions to establish that the veteran has a serious injury or illness.
Q. Has the definition of a serious injury or illness for a current servicemember changed?
A. Yes. The Final Rule expands the definition of serious injury or illness for current servicemembers to include preexisting conditions that were aggravated by service in the line of duty on active duty.
Q. Have the medical certification requirements for military caregiver leave changed?
A. Yes. The Final Rule expands the list of health care providers who can provide a medical certification to support FMLA military caregiver leave to include health care providers who are not affiliated with the military. If a medical certification is obtained from a health care provider who is not affiliated with the military, the employer may request a second (or third) opinion from the employee. The Final Rule retains the provisions that healthcare certifications obtained from healthcare providers associated with the military may not be subject to second and third opinions. In either situation, employers are not permitted to request recertifications.
The Final Rule also allows eligible employees to submit a copy of a VASRD rating determination or documentation of enrollment in the Program of Comprehensive Assistance for Family Caregivers from the Department of Veterans’ Affairs to certify that the veteran has a serious injury or illness. However, if an employee submits such documents, the employee may still be required to provide additional information.
Q. How does the Final Rule change the qualifying exigency leave provisions?
A. Qualifying exigency leave entitles an eligible employee whose spouse, son, daughter, or parent is a military member on covered active duty to take unpaid, job-protected leave to address any of the qualifying exigencies listed in the regulations. Before the FY 2010 NDAA was enacted, qualifying exigency leave was limited to eligible employees whose family member was a military member of the National Guard and Reserves. The Final Rule implements the FY 2010 NDAA amendments expanding qualifying exigency leave to eligible employees with a spouse, son, daughter, or parent in the Regular Armed Forces on covered active duty . The Final Rule also includes a foreign country deployment requirement in the definition of covered active duty for both members of the Regular Armed Forces and members of the National Guard and Reserves.
In addition, the Final Rule adds a new category of qualifying exigency that allows employees to take qualifying exigency leave for certain activities related to the care of the military member’s parent who is incapable of self-care where those activities arise from the military member’s covered active duty. The Final Rule also increases the amount of time from five days to up to 15 calendar days that an eligible employee may take to spend with his or her military family member during the military member’s Rest and Recuperation leave.
Q. What is covered active duty?
A. For a member of the Regular Armed Forces, covered active duty or call to covered active duty status means duty during the deployment of the member with the Armed Forces to a foreign country.
For a member of the Reserve components of the Armed Forces (members of the National Guard and Reserves), covered active duty or call to covered active duty status means duty during the deployment of the member with the Armed Forces to a foreign country under a Federal call or order to active duty in support of a contingency operation.
Q. What is the definition of deployment of a member with the Armed Forces to a foreign country?
A. Deployment to a foreign country means the military member is deployed to an area outside of the United States, the District of Columbia, or any Territory or possession of the United States. Deployment to a foreign country includes deployment to international waters.
Q. Under what circumstances can qualifying exigency leave be taken for the care of the military member’s parent?
A. The Final Rule creates a new qualifying exigency leave category that allows an eligible employee to take qualifying exigency leave for certain activities related to the care of the military member’s parent who is incapable of self-care where those activities arise from the military member’s covered active duty, such as arranging for alternative care; providing care on a non-routine, urgent, immediate need basis; admitting or transferring the military member’s parent to a new care facility; and attending certain meetings with staff at a care facility, such as meetings with hospice or social service providers.
Q. What are the Airline Flight Crew Technical Corrections Act (AFCTCA) amendments?
A. The AFCTCA established a special hours of service eligibility requirement for airline flight crewmembers and flight attendants (as those terms are defined by the Federal Aviation Administration) that reflects the unique scheduling requirements of the airline industry. The Final Rule provides that an airline flight crewmember or flight attendant (collectively referred to in the Final Rule as an airline flight crew employee) will meet the FMLA hours of service 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 (not including personal commute time or time spent on vacation, medical, or sick leave) during the previous 12 months. Airline employees who are not flight crew employees continue to be covered under the general hour of service eligibility requirement which requires 1,250 hours of service in the previous 12 months.
Q. Where in the FMLA regulations are the regulations related to airline flight crew employees?
A. The Final Rule incorporates the provisions relating to airline flight crews into Subpart H of the regulations, Special Rules Applicable to Airline Flight Crew Employees. This subpart previously contained the definitions of significant terms under the FMLA, which have been moved to § 825.102. Using a single subpart for the special rules for airline flight crew employees should enhance the clarity and utility of the regulations applicable to this specific group of employees, and prevent confusion about the applicability of the special rules for airline flight crew employees to any other types of employees.
Q. How will usage of FMLA leave for airline flight crew employees be calculated?
A. Eligible airline flight crew employees are entitled to 72 days of leave during any 12-month period for FMLA-qualifying reasons other than military caregiver leave, and 156 days of leave during any single 12-month period for military caregiver leave. If an airline flight crew employee takes leave intermittently or on a reduced schedule, the employer must account for the leave using an increment no greater than one day. This method of leave calculation applies only to airline flight crew employees.
Q. Are there special recordkeeping requirements for employers in the airline industry?
A. Yes. In addition to the existing FMLA recordkeeping requirements, covered employers of airline flight crew employees must maintain records or documents containing information specifying the applicable monthly guarantee for each category of employee to whom the guarantee applies, including copies of any relevant collective bargaining agreements or employer policy documents. Covered employers of airline flight crew employees must also maintain records of the airline flight crew employees’ hours worked and hours paid.
Q. Are all of the provisions of the Final Rule in effect now?
A. No. The regulatory changes contained in the Final Rule will not take effect until 30 days from the date the Final Rule is published, including an eligible employee’s entitlement to take military caregiver leave to care for certain veterans. However, the AFCTCA amendment and certain statutory provisions of the FY 2010 NDAA amendments to the FMLA are already in effect. Eligible airline flight crew employees were entitled to take FMLA leave beginning on December 21, 2009. As of October 28, 2009, eligible employees were entitled to take FMLA leave for qualifying exigencies related to their spouse, parent, or child’s deployment to a foreign country with the Regular Armed Forces. The foreign deployment requirement is also in effect as of that date for eligible employees taking qualifying exigency leave due to the call-up of a covered family member in the National Guard or Reserves. Additionally, as of October 28, 2009, eligible employees were entitled to take military caregiver leave to care for a current servicemember whose serious injury or illness is caused by the aggravation in the line of duty of a preexisting condition.
Q. Are the FMLA optional use forms removed from the regulations as was proposed?
A. Yes, the optional use forms are removed from the regulations’ appendices. Removal of the forms from the regulations will allow the Department to make non-substantive changes to the forms in a more effective manner while still offering the public an opportunity to comment on proposed changes. The Department’s authority for the collection of information in the FMLA forms stems from the statute and/or the implementing regulations and changes to the information included in the forms will continue to require rulemaking. Additionally, the forms are subject to the requirements of the Paperwork Reduction Act of 1995 (PRA) which provides the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information every three years. The removal of the forms will give the Department the ability to maintain one version of the FMLA forms, thereby lessening the confusion among employees and employers currently resulting from the existence of multiple versions of the forms. The forms will continue to be available on the WHD website (www.dol.gov/whd).
Q. Does the Final Rule contain changes to the manner in which employers calculate intermittent or reduced schedule leave?
A. The Final Rule does not make any substantive changes in the way that employers calculate intermittent or reduced scheduled leave. But the Final Rule does add language clarifying the calculation of leave provision. The Final Rule also establishes new rules for calculation of leave applicable only for airline flight crew employees.
Q. Are there any other changes to the regulations in the Final Rule?
A. Yes. Additional changes include moving the definitions section from § 825.800 to § 825.102 to enhance the utility of the regulations by defining terms before they are used in the substantive provisions and be more consistent with other regulations implementing statutes administered by the WHD. The Department also added language in the Final Rule to the Recordkeeping provision setting forth an employer’s obligation to comply with confidentiality requirements of the Genetic Information Nondiscrimination Act of 2008 (GINA), and amended references to the Uniformed Services Employment and Reemployment Rights Act (USERRA) to more closely mirror the USERRA regulations.
For a copy of the final regulations, please click on the link below: