February 19, 2013

In recent years, the Family and Medical Leave Act (FMLA), enacted in 1993, has undergone several fairly narrow modifications, most recently relating to military leave and rules specific to airline personnel. Final regulations interpreting these rules were issued on February 6, 2013 by the Department of Labor’s Wage and Hour Division. While these regulations primarily address the narrow focus as described above, there are a couple notes important to all employers subject to FMLA.

As a reminder, FMLA applies to employers employing 50 or more employees on each working day in at least 20 or more calendar weeks in the current or preceding calendar year. Public agencies, as well as private and public primary and secondary schools, are considered to be covered employers without regard to the number of employees.

To be eligible for FMLA benefits, an employee must have at least 12 months of service with the covered employer at a worksite subject to the law, and must have accrued at least 1,250 hours of service during the 12 months immediately preceding the leave. Under FMLA, eligible employees are entitled to take job-protected, unpaid (or substituted paid leave) for up to 12 weeks in a 12-month period for the:

• Birth or adoption of a child, including the placement of a child for foster care.
• Care for a parent, child, or spouse with a serious health condition.
• Employee’s own serious health condition.

NEW FMLA GENERAL POSTER
One of the requirements of the FMLA is that the employer must post a general notice explaining the FMLA. A new General Poster has been prepared by the DOL that employers must begin using no later than March 8, 2013.

As a reminder, the General Poster must be posted in a conspicuous place in all of an employer’s locations where it can be readily seen by employees and applicants. The employer must also provide this General Poster to any eligible employee by including it in an employee handbook, or other written document that sets forth employee benefits or leave rights, as well as provide it to each new employee upon hiring. The General Poster can be posted and provided electronically, as long as the employee has access to employer’s electronic system.

Employers can duplicate the text of the General Poster, or use a different format than the DOL’s model notice, as long as all of the information contained in the alternate form is replicated, and the text is large enough to be easily read. If English is not the primary language of an employer’s workforce, the DOL makes the General Poster available in several languages to be provided to the appropriate employee population.

COORDINATION OF FMLA AND GINA
Another clarification of the final FMLA regulations relates to coordinating the FMLA with the Genetic Information Nondiscrimination Act of 2008 (“GINA”). For purposes of GINA, genetic information and family medical history cannot be used for enrollment, or in connection with enrollment, nor can it be used for underwriting purposes. Genetic information means:

• The genetic tests of an individual or his/her family member;
• The manifestation of a disease or disorder of the individual’s family member; or
• Any genetic services relating to participation in clinical research by the individual or his/her family member.

In addition, GINA requires that genetic information be kept confidential. The final FMLA regulations coordinate with GINA to protect the confidentiality of genetic information. This means that any genetic information or family medical history must be maintained in accordance with the requisite confidentiality rules and kept in a separate file.

DESIGNATING INCREMENTS OF LEAVE
These regulations attempt to clarify the issue of “increments of leave” used in the event of an intermittent or reduced scheduled leave. Generally, the regulations require that an individual can only be charged with FMLA for time that the individual is, in fact, not working; and, the increments must be the shortest increment used for other types of leave, not to exceed one hour.

CHANGES TO FMLA MILITARY LEAVE PROVISIONS
The National Defense Authorization Act for FY 2008 broadened the benefits available under FMLA specifically for employees who have family members called to active military service. The law allows up to 12 weeks of FMLA leave per 12-month measuring period for a qualifying exigency; and, up to 26 weeks of FMLA leave to caregivers of service members in a single 12-month period.

EXIGENCY LEAVE
Eligible employees may take up to 12 weeks of FMLA leave while the employee’s spouse, child or parent, is on active duty for one or more qualifying exigencies, defined as a short notice deployment, military events and related activities, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation (R&R) or post-deployment activities.

The final regulations clarify that:

• Active duty requires deployment to a foreign country.
• Members of the National Guard and Reserves and the Regular Armed Forces are now eligible for exigency leave.
• The amount of time for R&R qualifying exigency leave is expanded to a maximum of 15 calendar days.

In addition, the final regulations add a new category of qualifying exigencies for parental care leave when a military member’s parent is incapable of self-care, for such events as providing immediate care, arranging for alternative care, or transferring the parent to a care facility.

CAREGIVER LEAVE FOR SERVICE MEMBERS EXPANDED FOR VETERANS
Up to 26 weeks of caregiver leave is available to otherwise FMLA-qualified individuals who have a family member (service member) experiencing a serious health condition or injury while on active duty, or one existing prior to active duty that is subsequently aggregated by service duty. The final FMLA regulations expand the definition of service member to include veterans who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness. This provision only applies to veterans who have been discharged or released under honorable circumstances at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran.

In addition, the serious health condition or injury of the veteran must meet one of the following criteria:

• 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 him/her unable to perform the duties of his/her office, grade, rank, or rating;
• A physical or mental condition for which the veteran has received a VA Service Related Disability Rating (VASRD) of 50% or greater, and such VASRD rating is based on the condition precipitating the need for caregiver leave;
• A physical or mental condition that substantially impairs the veteran’s ability for substantially gainful occupation by reason of a disability related to military service; or
• A physical or psychological injury, as determined by the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.

Certification of Military Caregiver Leave for Veterans
An employer may require an employee to obtain certification from an authorized health care provider to support the need for FMLA leave to care for the service member veteran. An employee can use the model Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (Form WH-385-V) for this purpose. In the alternative, an employee may submit documentation of enrollment in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers as sufficient certification of the veteran’s serious injury or illness, even if the employee is not the named caregiver on the document. In this event, an employer may require the employee to provide additional information, such as confirmation of the familial relationship to the enrolled service member or documentation of the veteran’s discharge date and status.

COORDINATING FMLA LEAVE FOR AIRLINE PERSONNEL
Because the provisions of the FMLA are complicated when applying the law to the airline industry, the law was amended several years ago. The final FMLA regulations provide that an airline flight crew employee will meet the FMLA hours of service eligibility requirement (1,250 hours of service in prior 12 months) if he/she has worked or been paid at least 60% of the applicable total monthly guarantee for minimum of 504 hours (not including personal commute time, vacation, medical or sick leave) during the prior 12 months.

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 on an intermittent or reduced schedule, the employer would account for the leave using an increment no greater than one day.

EFFECTIVE DATE
The FMLA regulations relating to military caregiver leave for a veteran, qualifying exigency leave for parental care, and the special leave calculation method for flight crew employees become effective March 8, 2013.

Certain other provisions relating to the expansion of qualifying exigency leave to families of members of the Regular Armed Forces, and the special eligibility hours of service requirement for flight crew employees, were effective when those laws were enacted on February 15, 2012.

CONCLUSION
While these regulations, by and large, have implications for very unique situations, it is especially important that all employers post the new General Poster no later than March 8, 2013.

Employers should also be aware that three existing FMLA model forms have been revised to reflect the changes made by the final regulations, and a new form added for veteran’s leave:

• Revised Notice of Eligibility and Rights & Responsibilities (Form WH-381)
• Revised Certification of Qualifying Exigency For Military Family Leave (Form WH-384)
• Revised Certification for Serious Injury or Illness of Current Servicemember — for Military Family Leave (Form WH-385)
• New: Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (WH-385V)

Additional FMLA information, forms, publications, fact sheets, employee guides for both military and non-military leave, FAQs, etc., can be found on the DOL’s designated FMLA website:

http://www.dol.gov/whd/fmla

About the Author: Karen R. McLeese is Vice President of Employee Benefit Regulatory Affairs for CBIZ Benefits & Insurance Services, Inc., a division of CBIZ, Inc. She serves as in-house counsel, with particular emphasis on monitoring and interpreting state and federal employee benefits law. Ms. McLeese is based in the CBIZ Leawood, Kansas office.

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