The FMLA May Be Turning 20, But It’s Still Growing

*By Helena Oroz

Now that the FMLA has been around for two decades, one would think that, statutorily speaking, it’s all grown up. Apparently, the DOL thinks there is room for growth, and it has been busy.

As we previously reported in a Z&R Employment Law Alert (“When is a Child a Child?  Department of Labor Issues New Guidance Concerning FMLA Leave for Children 18 Years and Older,” January 25, 2013), the Department of Labor (“DOL”) issued an Administrator Interpretation Letter in January that addressed when parents may take leave under the Family and Medical Leave Act (“FMLA”) to care for their adult children with serious health conditions.  The clarifying interpretation and examples seemed to indicate greatly expanded circumstances under which a parent could take protected leave to care for an adult child with a serious health condition.

This month, the DOL issued a Final Rule revising certain FMLA regulations to reflect statutory amendments related to military family leave and airline flight crew employees, as well as clarifying provisions related to calculating intermittent leave, minimum increments of leave, and compliance with USERRA (Uniformed Services Employment and Reemployment Rights Act) and GINA (Genetic Information Nondiscrimination Act of 2008). Some of the highlights include:

• Qualifying exigency leave now includes leave for eligible employees with family members serving in both the National Guard and Reserves and Regular Armed Forces.  Additionally, a new qualifying exigency leave category, parental care leave, provides for leave to care for a military member’s parent who is incapable of self-care when the care is necessitated by the member’s covered active duty.
• Military Caregiver leave now includes leave to care for covered veterans who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness, in addition to current service members. The definition of “serious injury or illness” has also been expanded to include pre-existing injuries or illnesses of current service members that were aggravated in the line of duty.
• The effect of USERRA-covered service on FMLA eligibility has been clarified: Employers must count all periods of absence from work due to USERRA-covered service, for all military members (active duty and reserve), in determining an employee’s eligibility for FMLA leave.
• Calculation of Intermittent Leave/Increments of Leave: New language clarifies that an employer cannot require an employee to take more leave than necessary to address the circumstances that precipitated the need for leave; that FMLA leave may only be counted against an employee’s FMLA entitlement for leave taken and not for time that is worked for the employer; and that employers must track FMLA leave using the smallest increment of time used for other forms of leave, subject to a one hour maximum.

The DOL has also issued a new poster and new certification forms. As of March 8, 2013, employers must:

• post the updated FMLA poster, which is available here: http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf
• use the updated FMLA certification forms, including a new form for certification of a serious injury or illness for a veteran, available here:  http://www.dol.gov/whd/fmla/2013rule/militaryForms.html

Look for a more in depth discussion of the latest FMLA amendments in Z&R’s next Employment Law Quarterly, coming soon.

*Helena Oroz regularly counsels employers on leave of absence including FMLA issues. For more information about recent changes to the FMLA or other leave questions, please contact Helena (hot@zrlaw.com) at 216.696.4441.