New England Biz Law Update
The U.S. Department of Labor issued new regulations under the Family and Medical Leave Act, which went into effect earlier this year. Most significantly, the new regulations:
• expand military family leave;
• provide an alternate method for determining FMLA eligibility requirements for airline flight crews;
• impose heightened requirements for intermittent leave;
• set forth protections under the FMLA for employees who take military leaves of absence; and
• remind employers of their confidentiality obligations under the Genetic Information Nondiscrimination Act, or GINA, with respect to information obtained for FMLA purposes.
The DOL has also issued a new workplace FMLA poster incorporating these additional provisions.
Employers covered by the FMLA should revise their policies and practices as necessary to ensure that they are in compliance with the new regulations.
Military family leave
The new regulations expand military family leave to include care for a current service member who suffers a serious injury or illness in the line of duty, and a veteran discharged (other than dishonorably) within the past five years who is undergoing treatment, recuperation or therapy for a serious injury or illness suffered in the line of duty.
A qualifying illness or injury may involve an aggravation of a pre-existing condition.
When leave is sought to care for a veteran, the serious injury or illness must also be one of the following:
(1) A continuation of a serious injury or illness that was incurred or aggravated when the veteran was a member of the armed forces and that rendered the service member unable to perform the duties of his or her office, grade, rank or rating;
(2) A physical or mental condition for which the covered veteran has received a U.S. Department of Veterans Affairs Service-Related Disability rating of 50 percent or greater;
(3) A physical or mental condition that substantially impairs (or, absent treatment, would substantially impair) the covered veteran’s ability to secure or maintain gainful employment; or
(4) An injury, including 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.
The new regulations also provide that a request for leave to care for a veteran or current service member may be supported by certification from any health care provider.
Under the previous version of the regulations, a certifying provider was required to be affiliated with the U.S. Department of Defense.
Additionally, the new FMLA regulations provide for a new type of military family leave. Leave may now be taken by a service member’s spouse, parent, son or daughter in order to assist a parent of the service member who is incapable of self-care, if the need for assistance results from the service member’s active duty or call to active duty.
Leave for a service member’s parent who is incapable of self-care is limited to non-routine activities, such as providing immediate, urgent care, admitting or transferring a parent to a care facility, or attending meetings with staff at a parent’s care facility.
Finally, the new regulations triple the number of days (from five to 15) that a family member may take as FMLA leave in order to spend time with a service member who is on rest or recuperation leave.
That leave may be taken intermittently and should correspond to the length of the rest or recuperation leave given to the service member. For instance, if a service member is given 10 days of rest and recuperation by his or her branch of the military, a family member may likewise take 10 days of FMLA leave in order to spend time with the service member.
Airline flight crew eligibility
In accordance with a 2009 amendment to the FMLA, the new regulations provide for an alternate method for determining whether airline flight crew employees have worked sufficient hours to be eligible for FMLA leave.
Airline flight crew employees now qualify for FMLA leave if they have worked or have been paid for (i) at least 60 percent of the applicable total monthly guarantee (or its equivalent) and (ii) at least 504 hours (not including commuting or leave time) during the previous 12 months.
Airline flight crew employees remain subject to the FMLA’s other eligibility requirements.
Calculating intermittent FMLA leave
The new regulations specify that an employer must track intermittent FMLA leave in minimum increments that are no greater than the minimum increments the employer uses to account for other forms of leave.
Thus, for instance, if an employer allows its employees to take vacation and sick leave in 30-minute increments, the employer must likewise allow employees to take intermittent FMLA leave in 30-minute increments. (Alternatively, the employer could elect to permit employees to take intermittent FMLA leave in shorter increments than those the employer uses for vacation and sick leave — for example, increments of 15 minutes.)
However, the regulations also provide that, in tracking intermittent FMLA leave, an employer may not use a minimum increment of greater than one hour, regardless of the increments the employer uses in tracking other forms of leave.
Nor may an employer require an employee to take more intermittent FMLA leave than the employee needs.
USERRA and eligibility for FMLA leave
To be eligible for FMLA leave, an employee must, in part, have been employed by his or her employer for at least 12 months and have provided at least 1,250 hours of service during the 12-month period immediately preceding the request for leave.
In that regard, the new regulations specify that if an employee takes a leave of absence to perform military service under the Uniformed Services Employment and Reemployment Rights Act, or USERRA, the period of military service must be counted toward the required 12 months of employment.
Further, in determining whether an employee has provided at least 1,250 hours of service within the 12-month period preceding his or her request for FMLA leave, the employer must factor in the hours that the employee would have worked during any USERRA-covered military leave.
The new regulations state that that calculation generally should be made on the basis of the employee’s “pre-service work schedule.”
GINA confidentiality requirements
Finally, the new FMLA regulations remind employers of their obligation to comply with the confidentiality requirements of GINA.
Specifically, to the extent that records created or obtained by employers for purposes of FMLA compliance contain “genetic information” or “family medical history,” as those terms are defined in GINA, employers must maintain such records in confidential medical files, separate from employees’ personnel files.
Recommendations for employers
There are a number of steps that employers covered by the FMLA should take in order to ensure that they are in compliance with the new regulations.
First, employers should carefully review their FMLA policies, practices and forms and revise them as necessary to incorporate the changes implemented by the new regulations.
Some of the changes — for instance, the requirement that the minimum increment used in tracking intermittent FMLA leave be no greater than one hour — may necessitate revisions in many employers’ policies and operations.
Second, employers should train all managers, human resources personnel and other employees who are involved in requests for FMLA leave in order to be certain that they understand the rights, obligations and procedures implicated by the new regulations.
Third, employers should be sure to display the DOL’s revised FMLA poster in their workplaces.
Finally, employers should continue to monitor future developments under the FMLA.
Lori Rittman Clark practices at Schwartz Hannum in Andover, Mass. The firm represents management in labor and employment law matters, including litigation and business immigration, and educational institutions on education law matters.
