2012 Proposed FMLA Regulations

On January 30, 2012, the Department of Labor issued proposed regulations to implement the recent amendments to the military leave provisions of the Family and Medical Leave Act ("FMLA") and to clarify and revise existing military FMLA leave regulations.

Among the recent amendments to the FMLA were the National Defense Authorization Act for Fiscal Year 2010 ("NDAA") and the Airline Flight Crew Technical Corrections Act ("AFCTCA"). The NDAA amended the FMLA to define qualifying exigency deployments, extend the qualifying exigency provisions to cover family members of regular Armed Forces servicemembers who are deployed to a foreign country, and extend military caregiver leave to family members of certain veterans with serious service-related injuries or illnesses. The AFCTCA amended the FMLA to close a perceived loophole in the hours of service requirement for pilots and flight attendants that often disqualified them from eligibility for FMLA leave due to their unconventional work schedules.

Here are some of the important highlights of the proposed FMLA regulations.

Proposed Changes to the Military Family Leave Provisions

As they relate to Military Family Leave under the FMLA, the proposed regulations:

1. Expand "qualifying exigency" leave to include family members of servicemembers who are on active duty in the Regular Armed Forces deployed to a foreign country, including "international waters" and areas outside of the United States and its territories;
2. Increase the amount of time an employee may take as "qualifying exigency leave" for "rest and recuperation" from five days to a maximum of 15 days;
3. Authorize an employer to require an employee to produce a copy of the service member's active duty orders or other similar military-issued documentation and provide the servicemember's dates of service, status and whether the servicemember's separation was dishonorable;
4. Extend "military caregiver" leave to family members to care for a Covered Veteran, who has served within the past five years, with serious, service-related injuries or illnesses incurred in the line of duty;
5. Expand the definition of a "serious injury or illness" to include pre-existing conditions that were aggravated in the line of duty;
6. Provide the following three alternative definitions of "serious injury or illness" for veterans:
   
   • "[A] continuation of a serious injury or illness that was incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the servicemember unable to perform the duties of the servicemember's office, grade, rank, or rating;
   • "[A] physical or mental condition for which the covered veteran has received a U.S. Department of Veterans Affairs Service Related Disability Rating (VASRD) of 50 percent or higher, and such VASRD rating is based, in whole or in part, on the condition precipitating the need for military caregiver leave;" or
   • "[A] physical or mental condition that substantially impairs the covered veteran's ability to secure or follow a substantially gainful occupation by reason of a service-connected disability or disabilities, or would do so absent treatment."
7. Expand the list of authorized providers who can certify a serious health condition for servicemembers to include private healthcare providers; and
8. Prohibit second and third opinions when the certification has been completed by a military health care provider.

Proposed Changes to the FMLA Regulations Affecting Airline Flight Crews

The proposed regulations revise the eligibility requirements for airline flight crew employees by providing that they will meet the hours of service requirement if, during the previous 12-month period, he or she (1) has worked or been paid for not less than 60 percent of the applicable total monthly guarantee and (2) has worked or been paid for not less than 504 hours, not including personal commute time or time spent on vacation or sick or medical leave.

Additional Proposed Changes to the FMLA Regulations

In addition to the foregoing changes, the proposed regulations:

1. Seek to provide further guidance on how to calculate intermittent FMLA leave, including the requirement that an employer use the shortest increment of leave at any time;
2. Reiterate that employer's are required to comply with the recordkeeping requirements of the Genetic Information Non-Discrimination Act with respect to FMLA documentation that contains "genetic information;" and
3. Remove from its appendix the optional-use forms and notices, which will remain available on the DOL's website.

Conclusion

The FMLA and its regulations have dramatically changed over the past few years, Employers should review their policies, forms and practices to ensure that they comply with current law. Additionally, employers who wish to file comments regarding the proposed regulations may do so through April 16, 2012.