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New FMLA Reg

February 10, 2013

Final FMLA regulations issued on law’s 20th Anniversary

By Susan Schoenfeld, JD, BLR, Senior Legal Editor

 

It was a surprise birthday party for the Family and Medical Leave Act (FMLA). On February 5, 2013, exactly 20 years after the FMLA was signed, the U.S. Department of Labor (DOL) issued a Final Rule ahead of the planned regulatory schedule.

The Final Rule, which addresses family military leave and airline flight crew rules, will change the way in which covered employers administer family leave for servicemember caregivers and employees with family members in the military.

The provisions not already in effect will become effective on March 8, 2013.

Summary of changes

The Final Rule amends certain FMLA regulations implementing amendments to the military leave provisions of the law made by the National Defense Authorization Act (NDAA) for Fiscal Year 2010.

To implement the NDAA’s amendments made to the FMLA’s qualifying exigency provision, the Final Rule:

  1. Revises the FMLA regulations to reflect the expansion of qualifying exigency leave to include eligible employees with family members serving in the Regular Armed Forces;
  2. Adds a foreign country deployment requirement;
  3. Increases the length of time an eligible family member may take for the qualifying exigency leave reason of Rest and Recuperation from 5 days to up to a maximum of 15 days; and
  4. Creates a new qualifying exigency leave category for parental care.

With regard to miltary caregiver leave under the FMLA, the Final Rule:

  1. Specifically defines what conditions constitute a serious injury or illness for a current member of the Armed Forces or a covered veteran;
  2. Expands the definition of “serious injury or illness” to include preexisting injuries or illnesses that were aggravated in the line of duty;
  3. Adds enrollment in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers as evidence of a covered veteran’s qualifying injury or illness; and
  4. Allows private physicians, outside of the military healthcare system, to certify a serious injury or illness.

The Final Rule also includes clarifying changes concerning the calculation of intermittent or reduced schedule FMLA leave; the removal of the forms from the regulations; and technical corrections to the current regulations.

In addition, the Final Rule amends the regulations to implement the Airline Flight Crew Technical Corrections Act (AFCTCA), which established eligibility requirements specifically for airline flight crewmembers and flight attendants for FMLA leave and authorized the DOL to issue regulations regarding the calculation of leave for such employees, as well as special recordkeeping requirements for their employers.

To see a chart comparing the former and current (final) regulatory changes, see the DOL’s chart at www.dol.gov/whd/fmla/2013rule/comparison.htm.

For more information on the Final Rule, see DOL’s website atwww.dol.gov/whd/fmla/2013rule.

Leave for a qualifying exigency

Under the Final Rule, eligible employees may take leave for a qualifying exigency while the employee’s spouse, son, daughter, or parent (the military member or family member) is on covered active duty or call to covered active duty status (or has been notified of an impending call or order to covered active duty).

For Regular Armed Forces members, the Final Rule defines “covered active duty or call to covered active duty status” as 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.

The “Armed Forces” is defined as the Army, Navy, Air Force, Marine Corps, or Coast Guard.

Foreign duty requirement. Under the Final Rule, a “foreign country” is 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. The active duty orders of a member of the Regular components of the Armed Forces will generally specify if the member is deployed to a foreign country.

Contingency operation. The term “contingency operation” is specifically defined in the Final Rule as a military operation issued under various statutory orders during times of war, national emergency, or peace. If an employer is unsure whether the call or order applies to a contingency operation, the employer should consult the Rule at Sec. 825.126(2).

The Reserves. For purposes of covered active duty or call to covered active duty status, the Reserve components of the Armed Forces include the Army National Guard of the United States, Army Reserve, Navy Reserve, Marine Corps Reserve, Air National Guard of the United States, Air Force Reserve, and Coast Guard Reserve, as well as retired members of the Regular Armed Forces or Reserves who are called up in support of a contingency operation.

Qualifying exigency can occur before, during, or after deployment. In response to the comment concerning whether the phrase “covered active duty or call to covered active duty” limits qualifying exigency leave to the period during the military member’s deployment, the DOL stated that eligible employees who are family members of military members of the Armed Forces are entitled to qualifying exigency leave after notification of an impending deployment, during the deployment, and in the post-deployment period.

Conditions for exigency leave. Under the FMLA, an eligible employee may take FMLA leave for one or more of the following qualifying exigencies listed in the regulations:

(1) Short-notice deployment
(2) Military events and related activities
(3) Childcare and school activities
(4) Financial and legal arrangements
(5) Counseling
(6) Rest and recuperation
(7) Post-deployment activities (arrival ceremonies, arranging or attending funerals, reintegration briefings, and any other official ceremony or program sponsored by the military for a period of 90 days following the termination of the military member’s covered active duty status)
(8) Parental care (new under the Final Rule)
(9) Additional activities to address other events arising from active duty or call to active duty

The Final rule makes four changes (or clarifications) to the listed qualifying exigencies:

  1. Clarifies that, for the purposes of leave for childcare and school activities, the child must be the military member’s child or a child for whom the military member stands in loco parentis;
  2. Increases the number of days taken for Rest and Recuperation leave from 5 to 15 days;
  3. Adds “attending funeral services” to the list of covered post-deployment activities; and
  4. Adds parental care as a new category to the list of covered qualifying exigencies.

Childcare and school activities. The Final Rule clarifies that the child for whom leave is taken must be “the military member’s biological, adopted, or foster child, stepchild, legal ward, or child for whom the military member stands in loco parentis, who is either under 18 years of age or 18 years of age or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence.”

For qualifying exigency leave, the military member on covered active duty or call to covered active duty status must be the spouse, parent, son, or daughter of the eligible employee in order for the FMLA protections to apply.

Therefore, the preamble to the Final Rule points out, an employee standing in loco parentis to a child of a military member is not sufficient to satisfy the statutorily-required relationship with the military member for qualifying exigency leave. The statute requires that the employee, whether or not he or she stands in loco parentis to the military member’s child, have the requisite relationship with the military member.

For example, the mother of a military member may be entitled to childcare and school activities qualifying exigency leave for the military member’s child, but the military member’s mother-in-law would not be, regardless of her relationship to the military member’s child.

Rest and Recuperation. The Final Rule expands the maximum duration of Rest and Recuperation qualifying exigency leave from 5 days to the duration of the military member’s Rest and Recuperation leave, up to a maximum 15 calendar days. The actual number of days of Rest and Recuperation leave provided by the military varies, with some military members receiving as many as 15 calendar days, depending upon the length of their deployment.

In the preamble to the Final Rule, the DOL states its belief that it was appropriate to make the availability of this type of qualifying exigency leave consistent with the leave actually provided by the military to the member on covered active duty. The employee may choose to take the leave in a continuous block of time or intermittently over the duration of the military member’s Rest and Recuperation leave, however, it must be taken during the period of time indicated on the Rest and Recuperation orders, or other documentation issued by the military setting forth the dates of the military member’s leave.

Parental leave. Under new Sec. 825.126(8), the Final Rule grants FMLA leave time for the employee to care for a parent of the military member when the parent is incapable of self-care and the covered active duty or call to covered active duty status of the military member necessitates a change in the existing care arrangement for the parent.

As with leave for the serious health condition of a family member, the parent must be the military member’s biological, adoptive, step, or foster father or mother, or any other individual who stood in loco parentis to the military member when the member was under 18 years of age. As with all instances of qualifying exigency leave, the military member must be the spouse, son, daughter, or parent of the employee requesting qualifying exigency leave.

The Final Rule grants parental FMLA leave time under the qualifying exigency provision for the employee to:

  1. Arrange for alternative care for a parent of the military member;
  2. Provide care for a parent of the military member on an urgent, immediate need basis (but not on a routine, regular, or everyday basis) when the parent is incapable of self-care and the need to provide such care arises from the covered active duty or call to covered active duty status of the military member;
  3. Admit to or transfer to a care facility a parent of the military member when admittance or transfer is necessitated by the covered active duty or call to covered active duty status of the military member; and
  4. Attend meetings with staff at a care facility, such as meetings with hospice or social service providers for a parent of the military member, when such meetings are necessary due to circumstances arising from the covered active duty or call to covered active duty status of the military member but not for routine or regular meetings.

Military caregiver leave

Under the FMLA, eligible employees are entitled to up to 26 weeks of leave within a single 12-month period to care for a covered servicemember with a serious illness or injury.

The Final Rule alters the regulations governing military caregiver leave by:

  1. Expanding the definition of a “serious injury or illness” to include current servicemembers’ preexisting injuries or illnesses that were aggravated in the line of duty;
  2. Expanding military caregiver leave to care for covered veterans to include enrollment in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers as evidence of a serious injury or illness;
  3. Defining a “covered veteran” as an individual who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness and who was discharged or released under conditions other than dishonorable at any time during the 5-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran; and
  4. Interpreting the 5-year period of eligibility for a covered veteran to exclude the period between the enactment of the FY 2010 NDAA on October 28, 2009, and the March 8, 2013, effective date of the Final Rule to protect the military caregiver leave entitlement of family members of veterans whose 5-year period has either expired or has been diminished during that time.

Serious illness or injury

As military caregiver leave has evolved to include both current members of the Armed Forces, aggravated injuries and veterans, so has the definition of a “serious illness or injury.” The Final Rule addresses these changes.

Current members of the Armed Forces. In the case of a current member of the Armed Forces, including a member of the National Guard or Reserves, a “serious illness or injury” means:

  1. An injury or illness that was incurred by the covered servicemember in the line of duty on active duty in the Armed Forces; or
  2. An injury or illness that existed before the beginning of the member’s active duty and was aggravated by service in the line of duty on active duty in the Armed Forces; and
  3. An injury or illness that may render the member medically unfit to perform the duties of the member’s office, grade, rank or rating.

Covered veterans. Under the Final Rule, for a covered veteran, a “serious illness or injury” means an illness or injury that was incurred by the member in the line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in the line of duty on active duty in the Armed Forces) and manifested itself before or after the member became a veteran, and is:

(1) A continuation of a serious injury or illness that was incurred or aggravated when the covered 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
(2) A physical or mental condition for which the covered veteran has received a U.S. Department of Veterans Affairs Service-Related Disability Rating (VASRD) of 50 percent or greater, and such VASRD rating is based, in whole or in part, on the condition precipitating the need for military caregiver leave; or
(3) A physical or mental condition that substantially impairs the covered veteran’s ability to secure or follow a substantially gainful occupation by reason of a disability or disabilities related to military service, or would do so, absent treatment; or
(4) An injury, including a psychological injury, on the basis of which the covered veteran has been enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.

VA’s Program of Comprehensive Assistance for Family Caregivers. The Final Rule added this VA program as a new way for determining whether a covered veteran has a “serious illness or injury.” The program provides health care, travel, training, and financial benefits to certain eligible caregivers of veterans who are eligible for the program benefits.

In general, a veteran or servicemember undergoing medical discharge from the Armed Forces is eligible for the program if the individual has incurred or aggravated a serious injury (including traumatic brain injuries, psychological trauma, or other mental disorders) in the line of duty. The serious injury renders the individual in need of a minimum of six continuous months of personal care services based on a variety of clinical criteria.

Based on the eligibility requirements for VA’s program, the DOL believes that most veterans who qualify for the program meet the requirement of having a serious injury or illness as defined in the final FMLA regulations.

Documentation of enrollment in the VA Program for Comprehensive Assistance for Family Caregivers will be sufficient to show that the veteran has a qualifying serious injury or illness as defined in Sec. 825.127(c)(2)(iv) of the Final Rule. If an employee submits documentation of the servicemember’s enrollment in the VA program, an employer may require the employee to provide additional information, such as confirmation of the familial relationship to the enrolled servicemember or documentation of the veteran’s discharge date and status.

Authorized healthcare providers. The Final Rule expands the list of authorized healthcare providers from whom an employee may obtain a certification of the servicemember’s serious injury or illness to include authorized healthcare providers allowed for nonservicemembers, outside of the Department of Defense (DOD), the Department of Veterans Affairs (VA), or the TRICARE healthcare network.

The DOL based this change in regulations on its understanding that, in certain circumstances, such as when seeking treatment for a mental health condition, some current servicemembers may wish to seek care from a healthcare provider unaffiliated with the DOD. The expansion of authorized healthcare providers will apply to covered veterans as well, because veterans may use nonmilitary affiliated healthcare providers (private healthcare providers) rather than the DOD, the VA, or TRICARE healthcare providers.

Getting medical records. In order for private doctors to receive the information they need to determine whether a serious illness or injury was incurred or aggravated by service, current servicemembers and veterans have access to their medical records for their time during service through eBenefits, an electronic portal provided by the DOD and the VA.

Veterans may also request their records through their local VA medical facility. In addition, veterans who have received a VASRD rating will possess documentation of their disability ratings, which can be produced as part of the medical certification process.

While the servicemember is not required to provide the healthcare provider with military records to complete a certification, if the servicemember does so, the information in these medical records and any other military documentation may aid a healthcare provider in making a determination that a servicemember’s injury or illness is related to the individual’s military service.

Second and third opinions. The Final Rule permits an employer to request a second and third opinion for medical certifications obtained from a healthcare provider who is not affiliated with the DOD, the VA, or the TRICARE network.

Five-year period.  The Final Rule interprets the 5-year period of military caregiver eligibility for a covered veteran to exclude the period between the enactment of the FY 2010 NDAA on October 28, 2009, and the March 8, 2013, effective date of the Final Rule. This interpretation is offered to protect the military caregiver leave entitlement of family members of veterans whose 5-year period has either expired or has been diminished during that time.

Thus, for a veteran whose 5-year period expired between October 28, 2009, and the March, 2013, effective date, the 5-year period will be extended by the amount of time that the veteran would have had if the provision had been effective on October 28, 2009.

Intermittent leave

According to the DOL, the Final Rule does not make any substantive changes in the way that employers calculate intermittent or reduced scheduled leave. Under the Final Rule, “clarifying language” is added that an employer may not require the employee to take more leave than necessary to address the circumstances that precipitated the need for leave, and 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.

The Final Rule also “clarifies” that employers must track FMLA leave using the smallest increment of time used for other forms of leave subject to a 1-hour maximum.

GINA and USERRA

The DOL added language to the recordkeeping provisions in the Final Rule setting forth an employer’s obligation to comply with confidentiality requirements of the Genetic Information Nondiscrimination Act of 2008 (GINA).

The Uniformed Services Employment and Reemployment Rights Act (USERRA) references are also clarified in the Final Rule to more closely mirror the USERRA regulations. Under the Final Rule, all periods of absence from work due to or necessitated by USERRA-covered service are counted in determining an employee’s eligibility for FMLA leave.

Forms

In the Final Rule, the Department formalizes its announcement to remove the forms from the regulations and place them instead on the DOL website atwww.dol.gov/whd/fmla/2013rule/militaryForms.htm. In response to the 2010 NDAA amendments and the AFCTCA, the DOL made minor modifications to the FMLA forms and created a new form for certification of a serious injury or illness of a covered veteran (the WH-385-V).

According to the DOL, removal of the forms from the regulations will allow the Department to make nonregulatory changes to the forms in a more effective manner while still offering the public an opportunity to comment on the proposed changes.

Airline Flight Crews

The Airline Flight Crew Technical Corrections Act (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 hours of service eligibility requirement, which requires 1,250 hours of service in the previous 12 months.

Separate section of regulations. 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 Sec. 825.102. According to the DOL, 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.

Calculating FMLA leave time for flight crews. 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 1 day. This method of leave calculation applies only to airline flight crew employees.

Recordkeeping for FMLA leave (flight crews).  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.

Effective dates

The regulatory changes contained in the Final Rule will not take effect until March 8, 2013 (30 days from the date the Final Rule was published), including an eligible employee’s entitlement to take military caregiver leave to care for certain veterans.

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.

Susan Schoenfeld, J.D., is a Senior Legal Editor for BLR’s human resources and employment law publications. Ms. Schoenfeld has practiced in the area of employment litigation and counseling, covering topics such as disability discrimination, wrongful discharge, sexual harassment, and general employment discrimination. She has litigated numerous cases before the U.S. Court of Appeals, state court, and at the U.S. Department of Labor. In addition to litigating employment cases in state and federal court, she provided training and counseling to corporate clients regarding employment-related issues. Prior to entering private practice, Ms. Schoenfeld was an attorney with the Civil Rights Division at the U.S. Department of Labor in Washington, D.C., where she advised federal agencies, drafted regulations, conducted inspector training courses, and litigated cases for the Office of Federal Contract Compliance Programs, the Directorate of Civil Rights, and the Mine Safety and Health Administration. Ms. Schoenfeld received her undergraduate degree, cum laude, with honors, from UnionCollege, and her law degree from the NationalLawCenter at GeorgeWashingtonUniversity.