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FMLA: Service member leave, intermittent leave clarified by new regs

February 28, 2013

Article courtesy of SBAM Approved Partner ASE

By Anthony Kaylin

Have you had problems calculating time for intermittent leave?  Have you had FMLA requests for family service member leave? On February 5, 2013, the DOL’s Wage and Hour Division promulgated final regulations on the Family Medical leave Act (FMLA) to help clarify these areas plus more.  They will be effective as of March 8, 2013 and will require employers to update their federal labor law posters.

Major highlights of the rule include:

  • Defining a covered veteran as (consistent with statutory limitations) limited to one discharged or released under conditions other than dishonorable no more than five years prior to the date the employee’s military caregiver leave begins.
  • Creating a flexible definition for “serious injury or illness” of a covered veteran that includes four alternatives, only one of which must be met.
  • Permitting eligible employees to obtain certification of a service member’s serious injury or illness (both current service members and veterans) not only from healthcare providers affiliated with the DOD, VA, or TRICARE networks (as was permitted under the 2009 regulations), but from any health care provider as defined in the FMLA regulations.
  • Extending qualifying exigency leave to eligible employees who are family members of members of the Regular Armed Forces, and adding the requirement for all military members to be deployed to a foreign country in order to be on “covered active duty” under the FMLA.
  • Increasing the amount of time an employee may take for qualifying exigency leave related to the military member’s Rest and Recuperation (R&R) leave from five days to up to 15 days.
  • Creating an additional qualifying exigency leave category for parental care leave: To provide care for the military member’s parent who is incapable of self-care, necessitated by the covered active duty of the military member.
  • Incorporating the statutory hours of service eligibility requirements for airline flight crew employees for FMLA leave.
  • Creating a unique method of calculation of leave for airline flight crew employees, and establishing that FMLA leave for intermittent or reduced schedule leave usage, taken by airline flight crew employees, must be accounted for using an increment no greater than one day.

Just as important, the new regulations clarify intermittent leave for all employees in 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.

Some employers required intermittent leave to be taken in one-hour increments even where shorter periods of time were used for leave, such as vacation and sick leave. For example, if an employee took 30 minutes coming to work late due to an FMLA related issue, and then worked the remaining 30 minutes and the rest of the day, the employer may have counted the full hour as FMLA time.

The new regulations make it clear that employers must use the shortest increment of time rule—and the the one-hour reference was simply a maximum. Thus, if an employer allows an employee to take vacation in 15-minute increments, it must allow employees to take FMLA in 15-minute increments.  Employers will have to ensure that their payroll system allows for this type of tracking.

In addition, record-keeping requirements are updated by the regulations to specify the employer’s obligation to comply with the confidentiality requirements of the Genetic Information Non-Discrimination Act (GINA).   

Finally, it should be noted that January 14, 2013, the DOL issued an Administrator’s Interpretation that an employee may seek leave to care for a son or daughter age 18 or older who is incapable of self-care because of a physical or mental disability.  However, it should also be noted that FMLA still does not apply for the birth of a grandchild unless these conditions are met.

The FMLA optional-use forms and new poster are available on the DOL website. New 5-in-1 Federal Posters will be available from ASE after February 25th.

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