Representing Employers in Labor & Employment Law

March 2013 E-Newsletter

DOL Final Rule Requires New FMLA Poster by March 8, 2013

March 2013 E-Newsletter

On February 6, 2013, the United States Department of Labor’s (DOL’s) final rule implementing two recent statutory expansions to the federal FMLA was published. Although the primary focus of the final rule is leave related to military families and flight crews, it requires all employers subject to the FMLA to display a new, revised poster. In addition, DOL issued a number of revised model forms, and an entirely new one, for employers to use in administering the FMLA.

New Poster

The new poster, which covered employers must display by March 8, 2013, reflects changes made to the FMLA regarding military family leave entitlements and airline flight crew employees. You can access the new poster here:

Model Forms

DOL also made changes to the model forms for certifying military caregiver and exigency leave, as well as the model notice of eligibility and rights and responsibilities. In addition, DOL created a new model form for employers to use in certifying the serious injury or illness of a veteran for purposes of administering military caregiver leave. All of the model forms have been removed from the regulations, but are available on the DOL website. This will allow the DOL to make non-substantive changes to the forms without having to follow the long process of securing approval through the federal government’s Office of Management and Budget (OMB). You can access the revised model forms here:

  • WH-381 Notice of Eligibility and Rights & Responsibilities (revised)
  • WH-384 Certification of Qualifying Exigency For Military Family Leave (revised)
  • WH-385 Certification for Serious Injury or Illness of a Current Servicemember – for Military Family Leave (revised)
  • WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (NEW)

Final Rule Changes

The main purpose of the final rule is to implement the FMLA amendments set forth in the National Defense Authorization Act of 2010 (FY 2010 NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA). The final rule also revises and clarifies a few other existing regulations. The main changes are:

  1. The definition of covered servicemember is expanded to include covered veterans. The military caregiver leave provision to care for a covered veteran does not take effect until March 8, 2013. Therefore, if an employer voluntarily provided time off to care for a veteran prior to March 8, 2013, that time cannot be counted against an employee’s leave entitlement going forward.

  2. The definition of covered servicemember is expanded to include covered veterans who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness. A covered veteran is defined as someone who has been discharged or released under conditions, other than dishonorable, five years prior to the date the employee’s military caregiver leave begins.

  3. There is a new definition of a serious injury or illness for a covered veteran. It includes an injury or illness that was incurred or aggravated by the member in the line of duty on active duty in the Armed Forces and manifested before or after the member became a veteran and meets one of these four criteria:

    1. Serious injury or illness was incurred or aggravated when the covered veteran was a member of the Armed forces;

    2. A physical or mental condition for which the covered veteran has received a VA Service Related Disability Rating (VASRD) of 50% or greater;

    3. A physical or mental condition that substantially impairs the veteran’s ability to secure or follow a substantially gainful occupation by reason of a disability related to military service; or

    4. An injury, including psychological injury, where the veteran has been enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.
  4. The list of healthcare providers who are authorized to complete a certification for military caregiver leave is expanded to include any healthcare provider (as opposed to only those affiliated with the DOD, VA, or TRICARE networks.) An employer may request a second and third opinion if the certification is from a non-DOD, VA or TRICARE provider.

  5. Military members must be deployed to a foreign country in order to request military caregiver leave or exigency leave. A foreign country is defined as an area outside of the United States, the District of Columbia, or any Territory or possession of the United States.

  6. The qualifying exigency time that may be taken by an employee related to the Rest and Recuperation (R & R) leave is increased from 5 days to 15 days.

  7. A new category of leave has been created under qualifying exigency leave for parental care 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, when the care is necessitated by the covered active duty of a military member.

  8. A unique method of calculating the hours of service requirement for, and the total allotment of, leave has been created for airline flight crew employees, including rules establishing that intermittent or reduced-schedule leave taken by airline flight crew employees must be accounted for using an increment no greater than one day.

  9. Existing rules regarding the appropriate increments of intermittent and reduced-schedule leave have been clarified.

  10. Confirmation has been added regarding the employer’s confidentiality obligations pursuant to the Genetic Information Nondiscrimination Act.

For guidance on this or any other employment or labor law issues, contact Krukowski & Associates, S.C.'s educational services department at (414) 988-8400.  

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