FMLA UPDATES - Applies to companies with 50+ employees within 75 mile radius. (Poster link and policy template included).

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1 FMLA UPDATES - Applies to companies with 50+ employees within 75 mile radius. (Poster link and policy template included). The Department of Labor (DOL) recently amended Family and Medical Leave Act (FMLA) regulations relating to military leave and flight crew eligibility. The new ruling provides clarification on military leave entitlements, the expanded definition of "covered veterans" and "serious injury or illness," and notice regarding the special hours of service eligibility requirements that apply to airline flight crew employees. The new ruling, which applies to companies with 50 or more employees within a 75 mile radius, took effect March 8, All FMLA-covered employers must now display the updated FMLA poster. Download free: FMLA poster. In regard to the FMLA s military leave provisions, the Final Rule: o Expands the definition of serious injury or illness to include pre-existing injuries or illnesses of current service members that were aggravated in the line of duty, and expands military caregiver leave to care for covered veterans. o Defines a covered veteran as an individual who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness and who was discharged or released under conditions other than dishonorable at any time during the fiveyear period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran. o Creates a flexible definition of serious injury or illness of a covered veteran that includes four alternatives, only one of which must be met. o Permits 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 Dept of Defense, Dept of Veterans Affairs, or TRICARE networks (as was permitted under the 2009 regulations). o Extends 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. o Increases the amount of time an employee may take for qualifying exigency leave related to the military member s rest and recuperation leave from five days up to 15 days. o Creates 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. Flight Crew Employees In relation to flight crew employees, the Final Rule: o Establishes hours of service eligibility requirements. Airline flight crew employees will meet the hours of service eligibility requirement if they have worked or been paid for not less than 60 percent of the applicable total monthly guarantee and

2 have worked or been paid for not less than 504 hours during the 12 months prior to their leave. o Establishes a special method of calculation of leave. An eligible airline flight crew employee is entitled to 72 days of leave during any 12-month period for FMLAqualifying reasons other than military caregiver leave and 156 days of leave during a single 12-month period for military caregiver leave. The Final Rule also provides that, if an airline flight crew employee takes leave intermittently or on a reduced schedule, the employer must account for the leave using an increment no greater than one day. o Establishes new recordkeeping requirements. The Final Rule requires that, in addition to generally applicable FMLA recordkeeping requirements, covered employers of airline flight crew employees must maintain records or documents containing the applicable monthly guarantee for each category of employee to whom the guarantee applies, including copies of any relevant collectivebargaining agreements or employer policy documents. Covered employers of airline flight crew employees must also maintain records of the airline flight crew employees hours worked and hours paid. Additional Changes The Final Rule adds clarifying language regarding minimum increments of leave. It states an employer may not require the employee to take more leave than necessary to address the circumstances that precipitated the need for leave, and FMLA leave may only be counted against an employee s FMLA entitlement for leave taken and not for time that is worked for the employer. For example, when an employee arrives half an hour late to work due to an FMLAqualifying condition and the employer waives its normal one-hour increment of leave and puts the employee to work immediately, only the amount of leave actually taken by the employee may be counted against the FMLA requirement. In addition, the Final Rule addresses increments of leave for intermittent or reduced schedule leave. When an employee takes FMLA leave on an intermittent or reduced leave schedule basis, the employer must account for the leave using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave provided it is not greater than one hour and provided further that an employee s FMLA leave entitlement may not be reduced by more than the amount of leave actually taken. An employer may not require an employee to take more leave than is necessary to address the circumstances that precipitated the need for the leave, provided the leave is counted using the shortest increment of leave used to account for any other type of leave. For additional information, see the FAQ page. The new ruling, applies to companies with 50 or more employees within a 75 mile radius, took effect March 8, 2013, and the updated FMLA poster must be displayed now. Download free FMLA poster.

3 If your company is subject to the provisions of FMLA, below is a suggested policy template to include in your Employee Handbook/Manual or to otherwise distribute to your employees. There are updated model FMLA forms for employers to use, but they do not include any substantive revisions. Updated forms can be found in the Compliance Basics Resource Center or at FMLA CLARIFICATION OF DEFINITION OF SON OR DAUGHTER The Dept of Labor s Wage & Hour Division (WHD) recently issued additional guidance regarding the definition of son or daughter for employees seeking leave under the Family and Medical Leave Act (FMLA) in order to care for adult children aged 18 or older. In order to take leave under the FMLA to care for a child under the age of 18, an employee must only show a need to care for the child due to a serious health condition; but if an employee needs to take care of an adult child aged 18 or older, the child must have a mental or physical disability and be incapable of self-care because of that disability. The new guidance clarifies that, for purposes of the definition, it is irrelevant if the disability occurs before or after the son or daughter reaches the age of 18. The WHD states in the newly-issued guidance that the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) expanded definition of disability, along with the WHD s position that age of onset of disability is irrelevant for purposes of the definition of son or daughter, may allow parents of adult children who have been wounded or sustained an injury or illness in military service to take FMLA leave beyond that provided under the special military caregiver leave provision, which already generally allows for up to 26 workweeks of leave in a single 12-month period. The WHD advises that four requirements must be met for an employee to be entitled to take FMLA leave in order to care for an adult child. The son or daughter must: 1. Have a disability as defined by the ADA, which would mean he or she has an impairment that substantially limits one or more major life activities (or has a record of such impairment or is regarded as having such an impairment). 2. Be incapable of self-care due to that disability. 3. Have a serious health condition. 4. Be in need of care due to the serious health condition. The WHD further explains that the ADA s definition of disability was expanded when the ADAAA broadened the definition of major life activities to include examples such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working, as well as issues regarding the operation of such major bodily functions as the immune, respiratory, reproductive, and endocrine systems. Under the ADAAA, according to the WHD, for the impairment to substantially limit one or more major life activities, it does not have to prevent or severely or significantly

4 restrict performing that major life activity. Finally, the WHD points out, under the ADAAA, impairment is a disability even if in remission or if merely episodic, if it would substantially limit a major life activity when active, and there is no minimum duration for an impairment to be a disability. Therefore, cancer that is in remission or such things as asthma, multiple sclerosis, lupus, or post-traumatic stress disorder could be considered disabilities even during symptom-free periods.. FMLA Policy Sample: Family Medical Leave Act (FMLA) Policy The federal Family & Medical Leave Act of 1993 (FMLA) as amended in 2008 requires employers with 50 or more employees to provide eligible employees with unpaid leave. In accordance with the Family Medical Leave Act (FMLA), Part One, as well as the military family leave entitlements (Military Family Leave) described in this policy, company policy grants up to 12 consecutive weeks or 480 hours of unpaid, jobprotected leave for eligible employees. To qualify for leave, the employee must meet all the following conditions: o Been employed by the company for at least 12 months. o Worked at least 1,250 hours during the prior 12 months. o Works at a location where there are at least 50 employees within 75 miles. o Is taking leave for one of the following reasons: Incapacity due to pregnancy, prenatal medical care or child birth, Care for employee s child after birth, or placement for adoption, Placement of a child for foster care, A serious health condition of the employee, or To care for a spouse, child, or parent with a serious medical condition. o Serious medical condition is defined as an illness, injury, impairment, or physical or mental condition involving either an overnight stay in a medical care facility, or continuing treatment by a health care provider for a condition that either prevents the employee from performing the functions of their job, or prevents the qualified family member from participating in school or other daily activities. o The definition of child can also include loco parentis relationships (one who provides day-to-day care and/or financial support) over a child in the home. The child does not have to be a blood relative. Armed Forces FMLA Provisions Part Two of the company s FMLA policy applies when an employee s immediate family member (spouse, child, and parent) in any regular component of the Armed Forces including reservist or National Guard member is called to active military duty. As required, the company may also grant up to 26 weeks of unpaid leave to an employee providing care to an immediate family member, as well as to the nearest blood relative, wounded while serving in the US military. Part Two leave must be combined with the usual 12 week availability (in other words, employees do not get 38 weeks of leave),

5 can only be taken once during an employee s career, and does not renew in subsequent 12-month periods. To qualify for Armed Forces FMLA Provisions, the employee must meet all following conditions: Been employed by the company for at least 12 months. Worked at least 1,250 hours during the prior 12 months. Works at a location where there are at least 50 employees within 75 miles. Is taking leave for one of the following reasons: To care for a serious injury or illness of Covered Service member under Military Caregiver Leave. o Covered Service member include active members and veterans of the Armed Forces (within five years preceding the date on which the veteran undergoes medical treatment, recuperation, or therapy). o Spouse, child, parent, or designated next of kin of Service members are eligible for qualified Military Caregiver Leave. o Serious health conditions include any injury or illness that existed before the beginning of the member s active duty and was aggravated by service in the line of duty in the Armed Forces. o Military Caregiver Leave, unlike other provisions of FMLA, allow up to a total of 26 workweeks of unpaid leave during a single 12-month period. Qualifying Exigency under Military Leave -- A spouse, parent, or child of a National Guard or Reservist service member may request leave for the following needs arising out of the fact the service member is on active duty or has been notified of an impending call or order to active duty. o Short-notice deployment (leave permitted up to seven days if the military member receives seven or less days notice of a call to active duty) o Military events and related activities o Certain temporary childcare arrangements and school activities (but not ongoing childcare) o Parental Care o Financial and legal arrangements o Counseling by a non-medical counselor (such as a member of the clergy) o Rest and recuperation (leave permitted up to a maximum of fifteen calendar days when the military member is on temporary rest and recuperation leave) o Post deployment military activities (for a 90-day period following termination of military family members active duty status) FMLA Request Procedure If the leave is foreseeable, the employee should request the leave in writing 30 days in advance. Other requests should be submitted as soon as is reasonably possible. The company reserves the right to require medical certification to support a request for leave

6 because of a serious health condition, and may require second or third opinions (at the employer s expense). To protect employee privacy rights, medical certifications will be treated as confidential medical records, and information will be disclosed only on a strictly need-to-know basis. FMLA leave may be taken intermittently or, under certain circumstances, on a reduced leave schedule. When leave is taken because of a birth or placement of a child for adoption or foster care, an employee may take a reduced-hour schedule when medically necessary. An employee may take an intermittent leave only if approved by the company. When FMLA leave is taken to care for a sick family member or for an employee s own serious health condition, leave may be taken intermittently or on a reduced-leave schedule when medically necessary. [Customize based on leave policy] Employees are required to use accrued paid-time-off (PTO), vacation or sick pay first. Paid time is tracked concurrently, not in addition to, FMLA for a total of 12 weeks leave time. If the accruals are less than 12 weeks, the employee may take the remainder of the time as unpaid leave. Employees will continue to accrue PTO, sick, or vacation leave while utilizing their accrued PTO, vacation, or sick time. However, they will cease to accrue PTO, vacation, or sick time leave during the unpaid portion of their leave. Health benefits, if applicable, may be maintained during any period of unpaid leave under the same conditions as if the employee continued to work, but the employee must pay his or her share of insurance premiums on or before the 5th day of each month. The company and the employee will agree upon the method of payment. Cancelation of coverage may result should the employee fail to make payment when due. Employees must also continue to pay for other elected benefits, such as flexible spending accounts, during the leave period. Leave Return Most employees returning from Family Medical Leave will be restored to their original job or to equivalent positions with equivalent pay, benefits, and other employment terms. Key employees can be denied restoration from leave if it would cause grievous economic harm to the company. Employees who were on leave for personal medical reasons may be required to furnish the Company with a fitness-for-duty report, if indicated on the designation Notice Family and Medical Leave Act (Form WH-382) before returning to work. Failure to return after the allowed time periods or to communicate or provide needed documentation may result in termination of employment.

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