Family and Medical Leave Act is Twenty Years Old! DOL Announces New FMLA Poster and Revised Regulations
The Family and Medical Leave Act (FMLA) is the federal law that was enacted in 1993 under the Clinton Administration and amended in 2008, and again in 2009. The purpose of the FMLA is to mandate that large employers provide a job-protected, unpaid leave to their eligible employees. The FMLA amendments of 2008 and 2009 extended the FMLA to certain military-related situations. The amendments also provide leave for qualifying military exigencies and leave for families of covered military members. This recent amendment will allow airline flight crew employees with their unique work schedules to have greater access to the benefits of FMLA. It also includes a special method of calculating leave.
The FMLA is driven by numerous, complex definitions. Additionally, the FMLA law is influenced by other federal statutes, including the Fair Labor Standards Act, COBRA, and the ADAAA. Workers’ compensation statutes also affect employers’ decisions about family and medical leave. Many states also have laws concerning family and medical leave. The combination of state and federal laws in the area of family and medical leave is often referred to as a “Bermuda Triangle.”
Last week the federal government issued a final rule implementing important regulations expanding the federal Family and Medical Leave Act (FMLA) protections. The FMLA applies to employers with 50 or more employees. The final rule requires a mandatory change to the federal FMLA notice/poster entitled “Employee Rights and Responsibilities Under the Family and Medical Leave Act.” All covered employers (50+ employees) must display the poster prepared by the U.S. Department of Labor (DOL) summarizing the major provisions of the FMLA and telling employees how to file a complaint. “Notice C” on California and Federal Employment Notices Poster is also included on the new poster.
The poster must be displayed in a conspicuous place where employees and applicants for employment can see it. The poster must be displayed at all locations even if there are no eligible employees.
The FMLA includes a special leave entitlement that permits eligible employees to take up to 26 weeks of leave to care for a covered service member during a single 12-month period. The revised federal FMLA poster clarifies the definition of a “veteran” under the new regulations to include not only those currently serving, but also those discharged in the past five years. The federal poster also has other mandatory revisions to conform to the agency regulations.
The major provisions of the Final Rule include:
- Defining a covered veteran, consistent with statutory limitations, as limited to veterans discharged or released under conditions other than dishonorable 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) from any health care provider as defined in the FMLA regulations, not only those affiliated with the DOD, VA, or TRICARE networks (as was permitted under the 2009 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 necessitated by the covered active duty of the military member for the military member’s parent who is incapable of self-care.
- 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.
The regulations do not take effect until March 8, 2013 — 30 days after the publication of the final rule. The new poster has a revision date of February 2013. However, the DOL specifically noted that employers may either start using the new poster immediately or may use the old FMLA poster through March 7, 2013.
According to the DOL: “Several of the changes to the FMLA regulations made in this Final Rule, including military caregiver leave for a veteran, qualifying exigency leave for parental care, and the special leave calculation method for flight crew employees, will not be effective until the effective date of the Final Rule on March 8, 2013.”
The regulations were revised to implement statutory amendments to the FMLA that occurred under the National Defense Authorization Act for fiscal year 2010 and the Airline Flight Crew Technical Corrections Act.