DOL expands the scope of FMLA

Family members of veterans and regular armed forces deployed in a foreign country will likely be able to take Family and Medical Leave Act leave. The Department of Labor's final regulations will also likely mandate employers of airline-flight crews to count their standby hours in FMLA leave calculations.

Friday, January 25, 2013
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Human resource managers should take note of upcoming new federal rules that expand the scope of employees who can request leave under the Family and Medical Leave Act, and the qualifying reasons for which eligible employees may take such leave.

Last December, the Department of Labor announced it plans to issue, in March, final FMLA regulations covering, among other things, leave for qualifying employees to care for seriously injured or ill military personnel, and to attend to other needs related to a family member's military service.

Specifically, the rules will likely expand the types of military personnel to include both veterans and current members of the regular armed forces who are called up for active duty in a foreign country. Previously, only eligible employees whose family members were part of the National Guard or military reserves and were called to duty for a "contingency operation" were eligible to take leave under the FMLA 's military-leave provisions.

Moreover, if the family member has a significant service-related illness or injury, the new regulations will likely allow caregivers of all of these military personnel and veterans up to 26 weeks to provide care."Military families can find themselves facing great challenges -- caring for an injured service member, arranging for alternative childcare when a spouse is deployed to a foreign country, or attending arrival ceremonies when a loved one returns from a deployment may present family members with difficult decisions about time spent at work versus time spent with family," says a Department of Labor spokeswoman.

"The FMLA helps to ease the burden that can come with needing time away from work when faced with such commitments," she says. "No one should have to choose between the job that they need and caring for the family that needs them. Final rules will signal that the Department of Labor is taking great steps toward protecting those families who have given so much of themselves to protect us. We are recognizing military caregivers' sacrifices not just with words, but with action."

The new rules will also likely require employers of airline flight crews to include in FMLA eligibility calculations, the number of hours the crews have to be on standby for flights.

Teresa Jakubowski, a partner in the labor and employment practice at Barnes and Thornburg in Washington, says the Labor Department will likely adhere or come close to its March issuance date because the new rules reflect statutory changes in both the National Defense Authorization Act for Fiscal Year 2010 and the Airline Flight Crew Technical Corrections Act.

"As the Afghanistan and Iraq wars are winding down, there are going to be a lot more people coming back to the U.S., and more service members requiring care for serious injuries or illnesses," Jakubowski says.

Before, there was a smaller set of employees (whose family members were reservists or part of the National guard called up for active duty) requesting leave under the FMLA military provisions.

But now that the regulations will likely expand eligibility to family members of those serving in the regular armed forces, there will be a lot more employees asking for this leave, she says.

One likely change in the regulations that defines qualified military caregivers may prove to be a concern - or, at the very least, confusing -- for HR leaders, says Ken Matos, senior director of employment research and practice for the Families and Work Institute in New York.

The proposed regulations that might be adopted allow a mother, father, spouse or a child of a deployed military member to help with childcare responsibilities and school activities, but not siblings, Matos says.

"This may create a little bit of difficulty for people who exist in extended family networks," he says. "HR managers can say no to them, or let the person take that time and not shorten the leave time they have remaining under FMLA."

The new regulations will also likely specify the definition of serious illness and injury for military members and veterans, to account for health conditions that emerge at later dates, such as post-traumatic stress disorder or traumatic brain injuries, Matos says.

Every employer covered under FMLA will be impacted by the new way that the agency will post forms corresponding with the final regulations, says Susan Schoenfeld, a senior legal editor for Business and Legal Resources Inc. in Old Saybrook, Conn. All future proposed and final FMLA forms and notifications will be posted on the Department of Labor's website rather than as an appendix to the regulations, as they were in the past.

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Some industry observers worry that the agency may be attempting to circumvent the administrative rules for notice and comment periods, wanting to move more quickly than it should, but Schoenfeld doesn't agree with that.

"My opinion is that it's the most efficient way for the DOL to let people know of proposed changes, and to allow for quick public comment and turnaround period," she says.

According to the Department of Labor, HR managers who are registered with the agency's electronic notification system will be alerted when there are proposed form changes, with a link to comment on it, and will be notified when new FMLA forms become available.

"It's a great way for HR managers to keep abreast of the changes," Schoenfeld says.

The new regulations will also likely include:

*           An expansion of the number of days from five to 15, that an eligible employee can take to spend time with a military member on rest and recuperation leave during a period of deployment, based on the actual number of days of "R&R leave" provided by the military.

*           An expanded definition of the type of healthcare provider who may complete a medical certification for military caregiver leave for current members of the military with a serious illness or injury. Currently, only providers within the U.S. Department of Defense, Department of Veterans Affairs, or the Defense Department's TRICARE network can complete the certification, but the new rules will likely allow any healthcare provider that is currently authorized to certify a serious health condition under the FMLA, to also certify a serious injury or illness under the military caregiver provisions.

*           Clarifications to how employers can count increments of leave in cases of intermittent or reduced schedule leave.

*           Either a deletion of the "physical impossibility" provision or a clarification of the limitation of its use to very narrow circumstances, such as for flight crews or employees in closed laboratories. Employers use this provision in cases where it's physically impossible for an employee to start or stop work within the shift to take a very short leave, such as two hours for a doctor's visit. As such, employers are allowed to count the entire period that employees are forced to be absent.

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