FMLA Regulations Revised to Reflect Prior Amendments

In 2008, the FMLA was amended to provide employees with family members serving in the Armed Forces, National Guard, and Reserves with FMLA leave for reasons related to their family members’ military service. In 2010, the FMLA was amended again, this time by the National Defense Authorization Act for FY 2010 (NDAA), to expand the military-related leave protections to include veterans, and to provide for qualifying exigency leave for family members in the regular Armed Forces (in addition to those in the National Guard and Reserves). The FMLA was also amended to include a special eligibility provision for airline flight crew employees.

On February 6, 2013, the U.S. Department of Labor (DOL) published new regulations that implement the federal FMLA amendments made by the NDAA and the Airline Flight Crew Technical Corrections Act. The regulations become effective on March 8, 2013.

Qualifying Exigency Leave

The new regulations add language to ensure that for purposes of exigency leave related to childcare and school activities, the military member must be the spouse, parent, or child of the employee seeking leave; however, the child for whom the leave is sought does not need to be the child of the employee requesting leave. For example, an employee who is the parent of a military member is eligible for leave to deal with the childcare of the military member’s child (i.e., his/her grandchild).
The new regulations also expand the amount of FMLA leave an eligible employee is able to take to spend with a covered family member during rest and recuperation periods, from five (5) days to up to a maximum of fifteen (15) days, to match the military member’s Rest and Recuperation leave orders.

Airline Employees

The Final Rule relocates the special rules applicable only to airline flight crew employees and their employers to revised “Subpart H – Special Rules Applicable to Airline Flight Crew Employees,” to provide clarity to employees and employers and to emphasize the distinction between the eligibility requirements and calculation of FMLA leave for airline flight crew employees and all other employees. Additionally, the Final Rule adopts a uniform entitlement for airline flight crew employees of 72 days of leave for one or more of the FMLA-qualifying reasons, and 156 days of military caregiver leave. The Final Rule further provides that employers must account for an airline flight crew employee’s FMLA leave usage utilizing an increment no greater than one day.

FMLA Forms

Finally, the Final Rule updates the FMLA optional use forms (WH- 380, WH-381, WH-382, WH-384, and WH-385) to reflect the statutory changes, creates a new optional use form for the certification of a serious injury or illness for a veteran (WH-385-V), and removes the forms from the regulations to allow the DOL more flexibility to revise the forms.

Kelli P. LieuranceFollow Kelli on Twitter (@Employ_attny) for breaking employment law news!

Read the Full Newsletter: Labor & Employment Law Alert March February 27, 2013