Recent Developments Under the FMLA:

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1 Recent Developments Under the FMLA: Dealing with the New DOL Regulations and Military-Service Related FMLA Leave Entitlements Terry D. McCay Kean Miller LLP ICHRMA General Membership Meeting Lake Charles, LA March 8, 2012

2 Leave of absence issues can become complicated due to overlap of state and federal laws potentially involved in employee leave of absence scenarios: The Family Medical Leave Act; The Americans with Disabilities Act; Other federal laws such as Title VII and USERRA (The Uniformed Services Employment and Reemployment Rights Act), and The Louisiana Employment Discrimination Law (including pregnancy discrimination).

3 If leave is requested for employee s own serious health condition, which also qualifies as a disability under the ADA, there may be FMLA/ADA overlap, and employer must provide leave under the statute that provides the greatest benefit to the employee; The FMLA and ADA have different purposes, employee eligibility criteria, and reinstatement requirements for employers; USERRA provides certain reemployment rights for employees called for military service, including FMLA rights upon reemployment, and the counting of time in military service toward FMLA months-and-hours eligibility; The FMLA, Title VII, and Louisiana employment discrimination law contain requirements governing leave for pregnancy and pregnancy-related conditions. Title VII also prohibits discrimination on the basis of protected classes when providing family or medical leave.

4 Under the original version of the Act, covered employers (50 or more employees) are required to provide up to twelve weeks of unpaid leave per year (on a calendar year or rolling calendar year basis the employer must designate in its FMLA policy) to eligible employees who request leave due to: the birth of a child or placement of an adopted or foster care child; to care for a minor child, spouse or parent who has a serious health condition, or to care for the employee s own serious health condition.

5 There are three basic steps for determining whether or not a particular leave situation is covered by the FMLA: 1. Is the employer/facility covered by the Act (50 or more employees)? 2. Is the employee eligible for FMLA leave (12 months of employment/1,250 hours)? 3. Does the particular reason for leave qualify under the Act?

6 Amendments to the FMLA by the National Defense Authorization Act for FY 2010 (NDAA), and the Airline Flight Crew Technical Corrections Act, revised the FMLA by expanding military caregiver leave and adding a special hours of service eligibility requirement for airline flight crew employees. On 1/30/12 the DOL s Wage and Hour Division issued a notice of proposed rulemaking to revise certain FMLA regulations to implement these statutory amendments to the FMLA. The proposed regulatory changes were published in the Federal Register on 2/15/12. Public comment period ends on 4/16/12.

7 Previous revisions to the FMLA from the National Defense Authorization Act for FY 2008 expanded military servicerelated leave entitlements by providing: Up to 12 weeks of job-protected unpaid leave in the applicable 12-month period for certain qualifying exigencies arising from military service. Up to 26 weeks of leave in order to care for a covered service member with a serious injury or illness.

8 From the 2008 NDAA: A covered employer must grant an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered service member who has a serious injury or illness up to a total of 26 workweeks of unpaid leave during a single 12-month period to care for the injured/ill service member.

9 From the 2010 NDAA: Expands coverage to include military veterans (in addition to current service members) with a serious injury or illness, which can be taken up to 5 years after the service member leaves the military, and for an injury or illness that results from a condition that predates active duty but was exacerbated by the military service. Provides for a flexible, three-part definition of serious injury or illness for a veteran. Permits medical certifications by health care providers not affiliated with the military or VA.

10 From the 2008 NDAA: The NDAA also amended the FMLA to require an employer to provide eligible employees with up to 12 workweeks of unpaid leave for qualifying exigencies arising out active military service by a spouse, son, daughter or parent in contingency operations of the National Guard or Reserves of the armed forces.

11 From the 2010 NDAA: Extends qualifying exigency leave to exigencies arising out of service in the Regular Armed Forces. Requires a foreign deployment for all covered service members (National Guard, Reservists and Regular Armed Forces)to qualify for leave.

12 1. Issues arising from a covered military member s short notice deployment (i.e., deployment on seven days notice or less) for a period of seven days from the date of deployment notification. 2. Military events and related activities, including official ceremonies, programs, or events sponsored by the military or family support or assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross that are related to the active duty or the call to active duty. 3. Certain childcare and related activities arising from the active duty or call to active duty status of a covered military member. 4. The need to make or update financial and legal arrangements needed to address the covered military member s absence.

13 5. Attending counseling provided by someone other than a health care provider for the employee, the covered military member, or the child of the covered military member. 6. Up to five days of leave to spend time with a covered service member who is on rest and recuperation leave. 7. Attending to certain post-deployment activities, including attending arrival ceremonies, reintegration briefings and events, and other official ceremonies or programs for a period of 90 days following the termination of the covered military member s active duty status. 8. Addressing issues arising from the death of a covered military service member. 9. Any other events which the employer and employee agree constitutes a qualifying exigency.

14 FMLA Military Caregiver Leave may be taken intermittently whenever medically necessary to care for a covered service member with a serious injury or illness. FMLA leave also may be taken intermittently for a qualifying exigency arising out of the active duty status or call to active duty of a covered military member NDAA clarifies that only time taken can be counted against FMLA leave and not time worked.

15 Pursuant to proposed regulatory revision from the 2010 NDAA, if an employee reports to work 30 minutes late due to an FMLAqualifying condition, and the employer waives its normal one hour increment of leave by immediately putting the employee to work upon arrival, only the amount of leave taken (30 minutes) can be counted against the employee s FMLA entitlement.

16 Employees seeking to use military caregiver leave must provide 30 days advance notice of the need to take FMLA leave for planned medical treatment for a serious injury or illness of a covered service member. If the need for leave is foreseeable but 30 days advance notice is not practicable, the employee must provide notice as soon as practicable. An employee does not need to specifically assert his or her rights under FMLA.

17 Covered employers must post a notice approved by the Secretary of Labor explaining rights and responsibilities under FMLA, including the new military-related leave entitlements. Additionally, employers must include notice of these rights in their employee handbooks or other written guidance to employees concerning employee benefits or must distribute notice of such rights to new employees at the time of their hire.

18 The Department of Labor has released updated FMLA certification forms carrying an expiration date of 2/28/15 for use by employers in certifying employee requests for military caregiver and qualifying exigency FMLA leave. Note that the revised forms fail to reference the additional FMLA rights provided under the 2010 amendments for military family leave, and any reference to the safe harbor privacy language recommended under the Genetic Information Nondiscrimination Act of 2008 (GINA), warning employees and health care providers not to include genetic information in a response for requested health-related information.

19 These forms (as well as certification forms for non-military FMLA leave) can be found online on the Department of Labor website at

20 1. Update your written FMLA policy to reflect the new categories of military-service related leave and make sure that your workplace postings on FMLA are current. 2. Update your FMLA leave certification and notice forms. 3. Make sure that HR personnel who will be responsible for documenting and verifying employee FMLA eligibility are familiar with the new DOL regulations concerning leave approval, medical certification and related provisions. 4. Make sure that your first line supervisors have an awareness and basic understanding of all FMLA leave entitlements.