Earlier this month, the DOL published final regulations to implement FMLA amendments contained in the National Defense Authorization Act for Fiscal Year 2010 (NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA). In addition, the DOL removed the "optional" FMLA forms -- such as the prototype medical certification, eligibility notice and designation forms -- from the appendices to the FMLA regulations so that now they can only be found on the DOL website. There were also some selective changes concerning impossibility and intermittent leave and compliance with GINA. Finally, the DOL republished the FMLA regulations in their entirety (i.e., both the amended and non-amended regulations) for the "convenience" of the public. The regulations become effective on March 8, 2013. The new regulations clarify at §825.500(g) that employers are required to comply with GINA to the extent the FMLA certification forms contain genetic information, such as family medical histories:To the extent that records and documents created for FMLA purposes contain family medical history or genetic information as defined in GINA, employers must maintain such records in accordance with the confidentiality requirements of Title II of GINA. GINA permits genetic information, including family medical history, obtained by the employer in FMLA records and documents to be disclosed consistent with the requirements of the FMLA.
The 2010 NDAA expanded FMLA exigency leave rights to include family members of any branch of the regular armed forces (beyond National Guard and Reservists which were already covered by the 2008 NDAA) and by adding a foreign deployment requirement for all of them. The new regulations also increase "the length of time an eligible family member may take for the qualifying exigency leave reason of Rest and Recuperation from five days to up to a maximum of 15 days and creates a new qualifying exigency leave category for parental care." An eligible employee may take qualifying exigency leave to care for the parent of a military member, or someone who stood in loco parentis to the military member, when the parent is incapable of self-care and the need for leave arises out of the military member's covered active duty or call to covered active duty status. . . . . the parental care qualifying exigency provision in the Final Rule tracks the childcare provision in setting out the types of situations when qualifying exigency leave is available. Thus, parental care qualifying exigency leave may be used for: (i) Arranging for alternative care for a parent of the military member when the parent is incapable of self-care and the covered active duty or call to covered active duty status of the military member necessitates a change in the existing care arrangements; (ii) providing care for a parent of the military member on an urgent, immediate need basis (but not on a routine, regular, or everyday basis) when the parent is incapable of self-care and the need to provide such care arises from the covered active duty or call to covered active duty status of the military member; (iii) admitting or transferring a parent of the military member to a care facility when the admittance or transfer is necessitated by the covered active duty or call to covered active duty status of the military member; and (iv) attending meetings with staff at a care facility for the parent of the military member, such as meeting with hospice or social service providers, when such meetings are necessitated by the covered active duty or call to covered active duty status of the military member (but not for routine or regular meetings).
Military caregiver leave has also been expanded to cover the family members of recent veterans (who served within the prior five years and incurred an injury or illness in the line of active duty which manifested itself before or after the member became a veteran) and illnesses and injuries which existed prior to active duty, but were aggravated in the line of active duty. A veteran's serious health condition can qualify under several different scenarios. An employer is also entitled to seek a second and third medical opinion in a few of the scenarios. The AFCTCA amendments place airline employees in a special location "Subpart H" for FMLA issues. The Final Rule adopts a uniform entitlement for airline flight crew employees of 72 days of leave for one or more of the FMLA-qualifying reasons (i.e., serious health condition, adoption and exigency leave) and 156 days of military caregiver leave. In addition, airline employers may not use FMLA increments of more than one-day. Finally, the new regulations establish special hours of service eligibility requirements for airline flight crew employees.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
