U.S. Department of Labor Issues New FMLA Regulations That Take Effect on March 8, 2013

On February 6, 2013, the U.S. Department of Labor (“DOL”) issued final regulations under the Family Medical Leave Act (“FMLA”) in order to implement recent FMLA amendments.  The regulations, which take effect March 8, 2013, implement changes made by the Fiscal Year 2010 National Defense Authorization Act (“NDAA”) and the 2009 Airline Flight Crew Technical Corrections Act (“AFCTCA”).

The FMLA protection for “Qualifying Exigency Leave” enables employees with family members serving in any branch of the Armed Forces to take up to 12 weeks of unpaid leave for qualifying exigencies that arise out of active duty or a call to active duty.  Prior to the NDAA, exigency leave was limited to the families of Reserve and National Guard members.  A new Qualifying Exigency Leave category—Parental Care—has been created as a result of the new regulations.  Similar to the child care exigency provision, this category allows family members to take time off to arrange for care of parents of military members.  While routine day-to-day care is not covered under this exigency provision, the provision does allow employees to make arrangements for on-going care for a parent, to provide urgent care for a parent, to attend meetings with staff at a care facility for a parent, or to admit or transfer a parent to a care facility.

Military caregiver leave under FMLA, which already covers serious injuries that occur during a service member’s active duty assignment, has been expanded as well.  Most notably, military caregiver leave will cover serious injuries or illnesses that are aggravated during the service member’s active duty.  Military caregivers can take up to 26 work weeks of leave in a 12-month period to care for a covered veteran in such a situation.  The new regulations allow family members of veterans suffering from serious injury or illness to take caregiver leave if the veteran was a member of the Armed Forces at any time during the preceding five years.

The AFCTCA, which sought to close loopholes in the FMLA’s hours of service requirement due to pilots’ and flight attendants’ unconventional work schedules, will permit additional airline employees to take leave under the FMLA.  Certain courts have concluded that the time pilots and flight attendants spend between flights, but on the job, do not count toward hours worked for purposes of FMLA entitlement.  The AFCTCA amends the FMLA to require that such hours will count toward the minimum hours calculation.  Under the revised rules, airline flight crew employees will meet the FMLA hours of service eligibility requirements if they have worked or been paid for not less than 60 percent of the applicable total monthly guarantee and have worked or been paid for not less than 504 hours during the 12 months prior to the start of their leave.

In addition, employees may now be entitled to FMLA leave to care for adult children with disabilities under the new regulations and pursuant to a January 14, 2013 DOL Administrator’s Interpretation.  The Americans with Disabilities Act, as amended in 2008, expanded what constitutes a “disability” under the ADA, but the FMLA regulations now make it clear that the same definition of disability will be used to determine whether an adult child is considered “disabled” under the FMLA.  This expanded definition of disability, coupled with the DOL Administrator’s Interpretation that the age of the onset of the disability is irrelevant for FMLA purposes, will increase the number of adult children with disabilities for whom parents may take FMLA-protected leave.

With a March 8 effective date, the new regulations will undoubtedly require employers to permit leave in situations where FMLA did not previously come into play.  Employers should update their written policies with respect to military exigency leave and military caregiver leave, and managers and HR personnel should be trained to address these issues when fielding employee requests for leave.

It is also important to note that the new regulations were released with new and updated certification forms and a new notice of employee rights poster, which are accessible on the DOL’s website.

For more information, please contact Daniel J. Moore at 585-419-8800 / dmoore@harrisbeach.com, or the Harris Beach attorney with whom you usually consult.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, New York City, Niagara Falls, Rochester, Saratoga Springs, Syracuse, Uniondale, White Plains and Yonkers, as well as New Haven, Connecticut, and Newark, New Jersey.