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DEPARTMENT OF LABOR ISSUES NEW FAMILY AND MEDICAL LEAVE ACT REGULATIONS, INCLUDING NEW FMLA POSTER

On February 6, 2013, the US Department of Labor issued new Family and Medical Leave Act (FMLA) regulations which take effect on March 8, 2013. The new regulations implement several recent statutory expansions of the FMLA pertaining to protections for military family members and airline flight crews. The major changes regarding military care leave are:

 

   1. Clarify that qualifying exigency leave is available to family members of persons serving in the regular Armed Forces, National Guard or Reserves who are on active duty or called to active duty in a foreign country.

 

   2. Increase the maximum number of leave days from 5 to 15 that an eligible family member may take to spend time with a military member on short-term, temporary rest and recuperation leave during deployment.

 

   3. Parental care, a new category of qualifying exigency leave, has been added to the existing categories of leave. Parental care exigency leave may be utilized by military members to make arrangements for the care of parents who are incapable of self-care when the care is necessitated by the member's covered active duty. Such care may include arranging for alternative care, providing care on an immediate need basis, admitting or transferring the parent to a care facility, or attending meetings with staff at a care facility.

 

   4. Military caregiver leave has been expanded to include leave to care for covered veterans who are undergoing medical treatment, recuperation or therapy for a serious injury or illness. (This includes care for a pre-existing injury or illness aggravated in the line of duty). A covered veteran is an individual who was discharged or released under conditions other than dishonorable in the five-year period prior to the date the employee's military caregiver leave begins. The definition of what constitutes a serious injury or illness of a covered veteran is broad.

 

   5. Military caregiver leave may be supported by a certification from any health care provider as defined in the regulation, not just those affiliated with the Department of Defense, Veterans Administration or Tricare.

 

Changes regarding the computation and use of intermittent leave:

 

   1. The maximum increment for FMLA leave taken on an intermittent or reduced schedule basis is the shortest increment of time that the employer uses to account for other forms of leave, provided that it is not greater than one hour. The employer must allow FMLA leave to be used in at least one-hour increments and if it permits shorter increments for other types of leave, it must allow those shorter increments for FMLA leave.

 

   2. Employers who account for leave in varying increments at different times of the day or shift may also do so for FMLA leave, provided that they use the same increments for FMLA as the smallest one used for any other type of leave taken at the same time.

 

   3. An employer can only count FMLA leave that is actually taken and may not also include time that is worked for the employer, regardless of how the employer accounts for leave. For example, if an employee arrives twenty minutes late for a FMLA reason and is put to work, the employer can only count those 20 minutes towards FMLA leave regardless of how the employer accounts for leave (such as in one hour increments).

 

   4. Where it is physically impossible for an employee to commence or end work midway through a shift, the entire period that the employee is forced to be absent can be counted against the employee's FMLA leave entitlement. This provision is to be applied in only the most limited circumstance, and the employer must restore the employee to the same or equivalent position as soon as possible.

 

   5. The regulations include a reminder to employers of their obligation to comply with the confidentiality requirements of the Genetic Information Non-discrimination Act (GINA) to the extent that records and documents created for FMLA purposes contain family medical history or genetic information. Employee records and documents relating to any medical certification or family medical history must be maintained as confidential medical records in separate files from the usual personnel files, and may only be disclosed under certain limited circumstances.

 

Finally, the new regulations create special rules for airline flight crew employees, including special hours of service requirement, method of calculation of leave and record keeping requirements.

 

In addition to the regulations, DOL has published an updated FMLA poster and has also updated several of its optional-use FMLA forms. The regulations go into effect on March 8, 2013. The poster can be found here: http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf.

 

The Labor Law Group at Fiddler González & Rodríguez, P.S.C., will issue the FGR LABOR WATCH with information of legal issues and developments in areas of interest to our friends and clients. If you know anyone who would like to receive the FGR LABOR WATCH, please feel free to forward this newsletter. For more information about any matter raised in this Labor Watch, please contact your usual FGR labor lawyer or José A. Silva Cofresí at jsilva@fgrlaw.com.

©2014 FIDDLER GONZÁLEZ & RODRÍGUEZ, P.S.C. Permission is granted to view, store, print, copy or distribute the content of this newsletter for noncommercial or personal use, provided you do not alter it and you give us proper credit. The content of this newsletter is for informational purposes only. It is not legal advice or advertising. In addition, the above discussion has been provided in general terms and, therefore, should not be relied upon as legal advice applicable to a specific set of facts and circumstances. Before taking legal action, consult a lawyer you trust. Although we will try to be accurate, you cannot rely on its applicability to your specific problem without consulting your lawyer. Fiddler González & Rodríguez, P.S.C. and the members of the Labor Law Group assume no responsibility to inform you of additional changes in law or any other legal issues related to matters addressed in this email of which we may become aware after the date hereof. This newsletter is not intended to create an attorney-client relationship between you and our firm or any of our attorneys. If we are not already representing you, be mindful that your email communications to any of our lawyers will not be treated as privileged or confidential until you ask us to represent you, we first conduct a conflict of interest search, we agree to represent you and you sign an engagement letter from the law firm.

***IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the Internal Revenue Service, we inform you that any United States federal tax advice in this communication (including any attachments) is not intended or written by Fiddler González & Rodríguez, P.S.C. to be used, and cannot be used, for the purpose of (i) avoiding any penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. **

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