Learning an Old Dog’s Tricks: Finally Figuring out the Recent FMLA Changes

Even though the most recent changes to the Family Medical Leave Act (FMLA) took effect in March of 2013, there is still a lot of confusion over what needs to be done in order to maintain labor law compliance.   Before getting into the new regulations, and how they affect your business, let’s have a quick general refresher about the law issued by the Department of Labor. The FMLA was created in 1993 to allow certain employees to take up to 12 unpaid workweeks off for a medical emergency affecting that employee, or an employee’s family.   The employers that must provide FMLA coverage are public agencies (including all federal, state and local employers) and private employers that have 50 or more employees working for a minimum of 20 workweeks in the current or preceding year.

Since the creation of the law, the FMLA has undergone several changes, and the most recent changes to the FMLA poster are numerous and complicated. The next sections will be broken down into the most essential pieces of the information in order for you to get a handle on what you may need to modify at your company.

Qualifying Exigency Leave– An employee may be eligible for FMLA leave due to a qualifying exigency stemming from a prior service of active duty or an impending tour of active duty.   New definitions for what it means to be a military member (serving in the Reserves, The National Guard, or regular Armed Forces) or being on active duty (having served in a foreign country) have been updated.

Required Information for Certification of a Qualifying Exigency- In order to be certified for a qualifying exigency for Rest and Recuperation Leave, the service member must now additionally provide a copy of his/her Rest and Recuperation Leave orders or another form of documentation with the specific dates of the military member’s leave.

Military Caregiver Leave- A covered service member now includes veterans who are undergoing medical treatments or are recuperating from a serious illness or injury. A covered veteran has been discharged from service for any other reason than a dishonorable discharge. A military caregiver is covered during the five-year period before the first date the eligible employee begins leave under FMLA to take care of a covered veteran.

Certification of Military Caregiver Leave– First, the list of authorized health care providers able to complete a certification for military caregivers has been expanded to providers outside of the DOD, VA or TRICARE. In the event that an employer seeks verification, an employee may submit proof of enrollment in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers as sufficient proof of the veteran’s illness or injury. Additional information, such as confirmation of the familial status of the veteran, may be required.

Serious Injury or Illness for a Current Service Member– Now, the definition of a serious injury or illness has grown to cover pre-existing illnesses and injuries from before the service member’s duty began that were aggravated while on active duty in the Armed Forces.

Serious Injury or Illness for a Covered Veteran- A serious injury or illness for a covered veteran is an illness or injury of a military member that occurred or was worsened while on active duty. This injury or illness can occur before or after the member became a veteran.

Employee Eligibility Hours of Service and USERRA- The protections provided by USERRA, or the Uniformed Services Employment and Reemployment Rights Act, are extended to all active duty and reserve military members. Also, any missed time from work due to USERRA is counted when considering an employee’s FMLA leave eligibility.

Minimum Increments of Leave- Language has been added to clarify that an employer cannot require their employee to take more leave than necessary.

Varying Minimum Increments- Employers must use the smallest increment of time used for other forms of leave with a maximum of one hour.

Physical Impossibility- It is clarified that the physical impossibility provision (where an employee cannot leave or begin work due to specific job constraints) can only be applied in very few circumstances. Also, the employer is responsible for restoring the employee’s same or equivalent position as soon as possible.

Employee Eligibility Hours of Service Requirement, Calculation of Leave, and Recordkeeping Relating to Airline Flight Crew Employees– Provisions have been added dealing with flight crew employees in Subpart H.

Recordkeeping- Recordkeeping requirements have been updated to reflect that an employer must comply with the confidentiality requirements of the Genetic Information Non-Discrimination Act (GINA).

In addition to these changes, it is still mandatory that each business with 50 or more employees display the most current copy of the FMLA poster. One simple decision that you can make for your company is to maintain strict adherence to the FMLA posting requirement by purchasing the Federal Labor Law Poster from Poster Compliance Center. We do all the work to make sure that you are up-to-date with the most recent information.