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March 15, 2013

Department of Labor Publishes New Family Medical Leave Act (FMLA) Regulations


The U.S. Department of Labor recently published new regulations under the FMLA that took effect March 8, 2013.  Employers covered by the FMLA, including school and community college districts, should post the new FMLA poster immediately and ensure their FMLA policies comply with these latest requirements. The new regulations make changes to qualifying exigency and military caregiver leave, intermittent leave, record keeping, and model certification forms. Specifically, they:

  • Clarify 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 only leave actually taken may be counted against an employee’s FMLA entitlement.
  • Clarify that employers must track FMLA leave using the smallest increment of time used for other forms of leave subject to a one-hour maximum.
  • Roll back the earlier regulatory change that allowed employers to delay reinstatement where it is “physically impossible” for the employee to return to his or her job in the middle of the shift; the physical impossibility provision is to be applied in only the most limited circumstances, and the employer bears the responsibility to restore the employee to the same or equivalent position as soon as possible.
  • Update the record keeping requirements to specify the employer’s obligation to comply with the confidentiality requirements of the Genetic Information Non-Discrimination Act (GINA).
  • Expand “military member” to now include both members of the National Guard and Reserves and the Regular Armed Forces.
  • Replace the definition of “active duty” with “covered active duty,” which requires deployment to a foreign country.
  • Add a new qualifying exigency leave category for parental care leave, which allows eligible employees to take leave to care for a military member’s parent who is incapable of self-care when the care is necessitated by the member’s covered active duty.
  • Increase from 5 to 15 calendar days the maximum time an eligible employee may take for rest and recuperation qualifying exigency.
  • Expand military caregiver leave coverage to include covered veterans. 
  • Expand the definition of “covered servicemember” to include covered veterans who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness.
  • Clarify the definition of a serious injury or illness for a current servicemember to include injuries or illnesses that existed before the beginning of the member’s active duty and were aggravated by service in the line of duty on active duty in the Armed Forces.
  • Add to the list of required information for certification for qualifying exigency leave for rest and recuperation leave a copy of the military member’s Rest and Recuperation leave orders, or other documentation issued by the military setting forth the dates of the military member’s leave.

New FMLA forms and the new FMLA poster are available at: www.dol.gov/whd/fmla. Remember that California employers should ensure they use forms that meet California’s more stringent privacy requirements.

 

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