By Martha J. Cardi; Chief Compliance Officer
Get your comments in by April 16!
In January the U.S. Department of Labor introduced proposed regulations to implement and interpret the 2009 amendments to the federal Family and Medical Leave Act (FMLA). Many of the proposed changes to the regulations are actually already in effect as a result of the 2009 amendments to the FMLA itself. The proposed regulations add details and, in a couple of instances, some surprises.
See below for:
- A summary of the 2009 FMLA amendments
- Key provisions of the proposed new regulations
- The surprises the DOL included in the proposed regulations
- What employers should do now
|The DOL is accepting comments on the proposed regulations until April 16, 2012. Reed Group will be submitting comments and we encourage employers and other interested parties to express their views also, here.|
FMLA 2009 AmendmentsThe FMLA was amended twice in 2009, first by the National Defense Authorization Act for Fiscal Year 2010 (NDAA FY 2010, effective in October 2009), and then by the Airline Flight Crew Technical Corrections Act (AFCTCA, effective in December 2009).The NDAA FY 2010 included statutory amendments that expanded the FMLA’s military caregiver leave and qualifying exigency leave provisions.Military caregiver leave provides time off for an employee to care for a family member with a serious illness or injury incurred
- extended military caregiver leave to eligible employees whose family members are recent veterans (active within the past 5 years) with serious injuries or illnesses (previously only current service members were covered); and
- expanded the definition of a serious injury or illness to include serious injuries or illnesses that result from preexisting conditions (rather than limiting the leave to care for a newly sustained injury or illness); and
Qualifying exigency leave provides time off for an employee to attend to certain legal, financial, family, and other matters related to a family member’s military deployment. The amendments:
- expanded qualifying exigency leave to eligible employees with family members serving in the Regular Armed Forces (previously this leave was available only to families of Reserve and National Guard service members, not the regular military); and
- added a requirement that for all qualifying exigency leave the military member must be deployed to a foreign country.
The Airline Flight Crew Technical Corrections Act (effective in December 2009) established a special FMLA hours of service eligibility requirement for airline flight crew members, such as pilots and flight attendants, based on the unique scheduling requirements of the airline industry. Under the amendment, 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; and
- has worked or been paid for not less than 504 hours during the previous 12 months.
Major Provisions of the Proposed RegulationsThe DOL implements new regulations for laws within its authority by publishing a Notice of Proposed Rule making (NPRM). Many of the current NPRM proposed rules interpret the 2009 FMLA amendments summarized above. In addition, major provisions include:Military Caregiver Leave:
- providing a new, flexible, three-part definition for serious injury or illness of a veteran
- expanding the type of health care providers who can provide a medical certification to include providers who are not affiliated with the military
Qualifying Exigency Leave:
- including a new foreign deployment requirement for qualifying exigency leave for the deployment of all service members (National Guard, Reserves, Regular Armed Forces)
- expanding the amount of FMLA leave an eligible employee may take to spend time with a military family member during rest and recuperation from 5 days to 15 days
Airline Flight Crew FMLA Eligibility Rules:
- adding specific provisions for calculating the amount of FMLA leave used by airline flight crew employees.
Surprise! The DOL has also proposed new regulations that have not received much publicity, but may be more problematic for employers. These were not embodied in the 2009 statutory amendments, so no one saw them coming:Calculation of Increments of FMLA Leave:Originally, employers were required to account for FMLA leave using the smallest increment that they used to track other leaves, not to exceed one hour. In the 2009 amendments to the regulations, this was changed to allow employers to account for FMLA time in the same increment the employer uses to track other types of leave, again not to exceed one hour. So, for example, if the employer requires employees to use various types of leave in different increments at different times of the day or on different shifts, the employer could track FMLA using the same increments for that time of day or shift.Now the DOL is proposing to roll the record keeping requirements back to the pre-2009 method, using the smallest increment an employer uses to track any kind of leave at any time of day. The DOL’s proposal is based on the FMLA regulation that prohibits employers from requiring an employee to take more FMLA time than needed – which might happen, for example if an employee arrives at work just a few minutes late due to an FMLA-qualifying reason, or takes time off for an appointment that requires less time than full increments that the employer uses to track other leaves.The proposed regulations retain the provision that allows an employer to use a shorter increment than its usual method in order to allow employees in such circumstances to return to work as soon as they arrive, or to continue working before and after an appointment, without losing work time and pay.Physical Impossibility – Mid-Shift Reporting:The DOL also seeks to tighten up the 2009 regulation addressing “physical impossibility” of leaving or starting work mid-shift. This regulation currently allows an employer to require an employee to miss an entire shift when a mid-shift departure or return to work due to an FMLA absence is impossible, such as a lab employee working in a “clean room” that is sealed off for the shift, or a flight crew member who cannot start or leave a shift mid-flight.The proposed regulation adds the following language:The period of the physical impossibility is limited to the period during which the employer is unable to permit the employee to work at the same or an equivalent position prior to a period of FMLA leave or return the employee to the same or equivalent position due to the physical impossibility after a period of FMLA leave.The DOL states that this addition is necessary to clarify that the regulation applies only when a true physical impossibility prevents an employee from being able to commence or end work mid-shift, not just when it would be inconvenient to allow the employee to do so. Some commentators have suggested that this addition will also have the effect of precluding an employer from designation as large a block of time as FMLA than under the current regulation – for example, if the employer is able to allow the employee to work a different (but equivalent) assignment.What Employers Should Do Now
- Comply with the NDAA FY 2010 and AFCTCA amendments – they went into effect in 2009 – even though they do not yet have supporting and interpretive regulations.
- Review and, if desired, submit written comments on the proposed rules here. Interested parties until April 16, 2012, to submit comments and suggestions.
- Relax! These are just proposed rules, not final. The process is slow, and changes in the proposals can be expected.
- Contact Reed Group if you have questions about this or any other leave issue.
Leave of Absence Advisor, an on-line resource for authoritative guidance to federal and state LoA management: 866.889.4449 or email or check it out: http://leaves.mdguidelines.com/MDGuidelines, web-based return-to-work toolkit: 866.889.4449 or email Outsourced Case Management Services: 866.218.4650 or email@example.comLeavePro™ Software: 866.218.4650 or firstname.lastname@example.org
Additional Information on the NPRM:NOTICE OF PROPOSED RULEMAKING (WITH PROPOSED RULES):http://www.dol.gov/whd/fmla/NPRM/FMLA_NPRM_2012.pdf DOL INTRODUCTION:http://www.dol.gov/whd/fmla/NPRM/DOL FAQs:http://www.dol.gov/whd/fmla/NPRM/FAQs.html