Thursday, February 21, 2013

New FMLA Rule Effective March 8, 2013

The U.S. Department of Labor issued final FMAL rules effective March 8, 2013. The 2013 rule was needed because of two new laws:

• The National Defense Authorization Act for Fiscal Year 2010, which liberalized employee requirements for taking military "qualifying exigency" and "military caregiver" leave; and

• The Airline Flight Crew Technical Corrections Act, which pertains to calculation of FMLA time for members of airline flight crews.

A few revisions were also made to the traditional FMLA provisions.

Military Revisions

The new rule pertaining to qualifying exigency leave clarifies that it applies to members of the regular armed forces, and the National Guard and Reserves, called to service in a foreign country. A new type of qualifying exigency leave was also added: leave for care of a parent that is related to active duty or the call or impending call to active duty in support of a contingency operation. The parent must be the parent of the military member (not necessarily the employee) and must be incapable of self-care. The military member must be the spouse, parent, or child of the employee. As an example, an employee’s husband is called to service in a foreign country. The husband’s mother is incapable of self-care, and due to his leave, will have to be placed in a nursing home. The employee can now take qualifying exigency leave to help with these arrangements.

The new rule pertaining to military caregiver leave provides that covered servicemember includes covered veterans. A covered veteran is one who was discharged or released for reasons other than dishonorable within the five years preceding the day that the employee's FMLA leave for the veteran's serious injury or illness would begin. The DOL is not counting the period between October 28, 2009 (the date that the Fiscal Year 2010 NDAA was enacted) and March 8, 2013, in calculating the five-year period (approximately 1,226 days). Employers will have to keep these extra days in mind when determining whether an employer's family member is a covered veteran.

Serious injury or illness for current servicemembers and covered veterans now includes preexisting injuries or illnesses that were aggravated in the course of military service. For covered veterans, serious injury or illness also includes (1) a VA Service Related Disability Rating of 50 percent or greater; (2) a disability that "substantially impairs" the veteran's ability to get "substantial gainful employment" or would if untreated; and (3) injuries or illnesses that have been the basis for the veteran's enrollment in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.

Flight Crews

Consistent with the Airline Flight Crew Technical Corrections Act, a member of a flight crew is now eligible for FMLA leave if he or she has worked or been paid for at least 60 percent of his or her applicable monthly guarantee and has worked or been paid for at least 504 hours. An eligible flight crew member is entitled to 72 days per 12-month period for family/medical and qualifying exigency leave, and 156 days in a single 12-month period for military caregiver leave.

Traditional FMLA Revisions

Under the new rule, the employer is not allowed to charge for more FMLA leave than the employee actually needs. The only exception to this rule is where it is physically impossible for the employee to interrupt a shift once begun – for example, for a flight attendant who is in the air. In a case like that, in which it is impossible for an employee to miss only part of a shift, the employer may charge for the entire shift. An employer must charge for intermittent or reduced schedule FMLA leave in the smallest timekeeping increment it uses for other types of leave, and in no circumstance use an increment larger than one hour.

New Forms and Poster

The various FMLA forms have been revised to comply with the NDAA and the flight crew legislation, and are available on the DOL website: Scroll down to forms WH-380E through WH-385V.

By March 8th or as soon as possible afterwards, FMLA covered employers should update their FMLA policies in accordance with the new rule, and replace the current FMLA poster with the new one available at

This FMLA update is provided as a service to our clients and friends. If you need assistance with FMLA or any other human resource-related area, please do not hesitate to contact Senn Dunn’s Human Resource Consulting Services.

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