Just when you think you have it all figured out, our friends in Washington change the rules again. Friday, new regulations to the Family and Medical Leave Act will take effect. The changes are being implemented as a result of the National Defense Authorization Act for fiscal year 2010 and the Airline Flight Crew Technical Corrections Act. Although many of the changes simply clarify the existing regulations, there are several substantive changes as well. Covered employers must act quickly to comply with these new regulations.
The bulk of the changes affect the rules for employees related to military service members. The new rules will now allow an eligible employee to take leave to care for a parent of a military member who is called to active duty so long as the military member is the spouse, parent or child of the employee. This is an entirely new “qualifying exigency” category, and leave for things such as arranging for alternative parental care will be covered. The definition of a covered service member will also include covered veterans under the new regulations.
The new rules also increase the leave time for rest and recuperation from five days to 15 days. The military caregiver rules have also been expanded. Under the new rules, a “serious injury or illness” will include an “aggravation” to a pre-existing condition or injury.
In addition to expanding the coverage for qualifying military exigencies, which many would agree are appropriate, the new rules also change how intermittent leave must be calculated. Under the new rules, employers must use the smallest time-keeping increment it uses for other types of leave. Except in very limited circumstances, an employer’s time-keeping increments cannot exceed one hour. A change that is sure to cause accounting nightmares, the regulation is intended to prevent an employer from charging an employee for more FMLA leave than the employee actually takes. As noted, there are some limited exceptions to this rule, such as the case of a flight attendant whose position might make it physically impossible to work a partial shift.
Under the new rules, employers may continue to create and use their own forms for requesting and certifying FMLA leave provided they conform to all the regulations. For the rest of you, the labor department has created forms that comply with the new regulations and are free to use. The revised forms can be downloaded from the Wage and Hour Division of the Department of Labor’s website. In addition to new forms, employers should display the revised FMLA poster, which is also available for free download. Note, the FMLA optional-use forms are no longer available in the appendices to the regulations. This change will allow the department to make future changes to the forms while skipping the formalities associated with changing the regulations. This could result in more frequent updates and changes to the optional-use forms.
As with any change in the law, employers are encouraged to make any necessary revisions to all policies affecting FMLA leave. More importantly, employers must train appropriate personnel on the new rules and any policy changes.
Jason Logan is an employment law and workers’ compensation attorney in Macon with the national labor firm of Constangy Brooks & Smith.
