Tag: FMLA

Timely Performance Management in Avoiding Family and Medical Leave Act (FMLA) Liability

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Managing the performance or conduct of an employee who has recently utilized leave under the Family and Medical Leave Act (FMLA) can be a legal minefield for employers.  If the poorly performing employee does not improve his or her performance upon return from FMLA leave, the employer may be hesitant to take further employment action against the employee for fear that the timing of the decision will create a risk of liability under state or federal leave laws.  A comparison of two recent court decisions serves as an important reminder that contemporaneously addressing and documenting performance or conduct issues as they occur can go a long way in protecting the employer from liability in a later FMLA retaliation claim.

In Benimovich v. Fieldston Operating, LLC, Case No. 11-CV-780 (S.D.N.Y 3-22-2013), the plaintiff, Galina Benimovich, took FMLA leave to undergo and recover from knee replacement surgery.  While on leave, the employer hired and trained a replacement.  When Benimovich learned that she had been replaced, she contacted the employer and offered to return from leave.  When the parties met a few days later to discuss the situation, the employer terminated Benimovich’s employment.

Benimovich subsequently filed a lawsuit against the employer alleging a variety of claims, including a claim that the employer had unlawfully terminated her in retaliation for exercising her FMLA rights.  The employer defended that its owners had actually decided to terminate Benimovich months before she took FMLA leave, but that they wanted to hire and train a replacement before firing her. The employer claimed its motivation to terminate Benimovich was poor performance, specifically inaccurate processing of payroll records, manipulation of time records, failure to issue accurate paychecks, and untimely payments to vendors.

The court denied the employer’s motion for summary judgment on the FMLA retaliation claim.  In allowing the case to go forward, the court noted that the temporal proximity between the leave and the termination was suspect.  However, the court also relied heavily on the fact that there was no written documentation substantiating Benimovich’s alleged performance problems or the owners’ decision to terminate Benimovich months earlier.  The court further noted that Benimovich’s performance was rarely, if ever, criticized.

Contrast the outcome in Benimovich with the analysis and decision of the Court of Appeals for the Eight Circuit in Brown v. City of Jacksonville, Case No. 12-1730 (8th Cir. 2013).  The plaintiff in Brown took FMLA leave from August 9, 2008 through October 18, 2008 to undergo hip replacement surgery.  A few months before going on leave, Brown received a written warning for insubordination.  Brown’s supervisors had also verbally counseled her regarding her performance on a number of occasions.

After returning from leave, Brown received another written warning for failure to perform her duties as purchasing manager.  Brown filed a complaint with the Equal Employment Opportunity Commission (EEOC), which led the City to conduct an internal investigation into Brown’s complaints.  The investigation revealed that Brown’s co-workers considered her to be a very negative presence in the workplace and felt they had to walk on “pins and needles” due to Brown’s attitude issues.  Additionally, the investigation revealed that Brown’s co-workers were able to adequately perform Brown’s purchasing duties during her absence.  The City concluded that Brown was creating a hostile work environment for her co-workers and terminated her employment for “failure in performance of duties” and “failure in personal conduct.”

Following her termination, Brown filed a lawsuit against the City alleging FMLA retaliation and a number of other discrimination claims.  On appeal, the Eighth Circuit approved of the lower court’s grant of summary judgment to the employer on Brown’s FMLA retaliation claim.  First, the court noted that the timing of Brown’s termination – eight months after returning from leave – did not raise an inference of discrimination.  Second, the court held that the undisputed evidence (which included written warnings) showed that Brown was warned about her poor performance prior to even going on leave.  Accordingly, the Court affirmed summary judgment in favor of the City.

There are a number of distinguishing factors that explain the differing outcomes in Benimovich and Brown – including the amount of time between the employee’s leave and termination.  Importantly, however, employers should also take note of the critical role that written warnings and performance counseling played in the Eight Circuit’s award of summary judgment to the employer.  The employer in Brown was able to justify its termination and avoid liability in a tricky situation because it had the written documentation and prior performance counseling to support its claim of poor performance.   Conversely, the employer in Benimovich was denied summary judgment because it had failed to document either the purported performance issues or the earlier decision to terminate.

No doubt, terminating or taking adverse employment action against an employee who has recently utilized legally protected leave rights is risky, and an employer should consult legal counsel before taking any such action.  However, these cases illustrate that proper documentation of performance and disciplinary issues is one of the most important preventative steps an employer can take now to reduce the risk of future liability.

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Department of Labor “DOL” Publishes New Family and Medical Leave Act “FMLA” Regulations – Analysis and Implications

The National Law Review recently featured an article by Rene M. Johnson, Michelle Seldin Silverman, Silvia A. LeBlanc, and Sarah Andrews with Morgan, Lewis & Bockius LLP regarding Family Medical Leave Act Regulations:

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Final rule takes effect on March 8 and makes changes to model certification forms, intermittent leave, exigency and military caregiver leave, and flight crew rules.

On February 6, the U.S. Department of Labor (DOL) published a final rule[1] (Final Rule) that (1) amends the Family and Medical Leave Act (FMLA) regulations addressing the coverage of military caregiver and exigency leaves and (2) revamps eligibility requirements for certain airline industry employees. While the Final Rule will require some changes to most employers’ written FMLA policies and forms, it should not bring about substantial changes to the way most employers administer military caregiver and exigency leaves.

Summary of the Final Rule

This LawFlash provides a detailed analysis of the changes included in the Final Rule. Most importantly, employers should note that the Final Rule does the following:

  • Adds a new category of exigency leave for parental care
  • Increases the maximum number of days from five to 15 calendar days for exigency leave to bond with a military member on rest and recuperation leave
  • Makes effective amendments that extend military caregiver leave to family members of certain veterans with qualifying serious injuries or illnesses
  • Clarifies the scope of exigency leave to family members of those in the regular armed forces
  • Retains the physical impossibility rule, which provides that, 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 is counted against the employee’s FMLA leave entitlement
  • Retains, but clarifies, the existing regulation regarding the appropriate increments to calculate intermittent and reduced-schedule leave

Employers should also be aware that the DOL has developed several new FMLA forms[2] and has released new guidance regarding the existing definition of “son or daughter.”

Background on FMLA Amendments

As most employers are now well aware, the FMLA was amended in January 2008 to provide the following two types of military family leave for FMLA-eligible employees:

  • Exigency leave: a 12-week entitlement for eligible family members to deal with exigencies related to a call to active duty of service members of the National Guard and reserves
  • Military caregiver leave: a 26-week entitlement for eligible family members to care for seriously ill or injured service members of the regular armed forces, National Guard, and reserves

Less than a year later, Congress again amended the FMLA through the National Defense Authorization Act for Fiscal Year 2010 (FY 2010 NDAA), P.L. No. 111-84. In this act, Congress expanded both types of military family leave by doing the following:

  • Expanded military caregiver leave to include the family members of certain veterans with serious injuries or illnesses who are receiving medical treatment, recuperation, or therapy if the veteran was a member of the armed forces at any time during the five years preceding the date of the medical treatment, recuperation, or therapy
  • Expanded exigency leave to include the family members of those in the regular armed forces but added the requirement that service members be deployed to a foreign country
  • Extended military caregiver leave to the family members of current service members with a preexisting condition aggravated by military service in the line of duty on active duty

The FY 2010 NDAA did not include an effective date, so these changes were presumed effective on October 28, 2009.[3] Later in 2009, Congress also passed the Airline Flight Crew Technical Corrections Act (AFCTCA), P.L. 111-119, to provide an alternative eligibility requirement for airline flight crew employees.

Final Rule Relating to Qualifying Exigency Leave

The Final Rule includes a number of changes relating to qualifying exigency leave. It is important to note that, in response to concerns raised in the comment period, the DOL reaffirmed that, where a qualifying exigency involves a third party, employers may contact that third party to verify the meeting and the purpose of the meeting.

Definition of “Active Duty” — § 825.126(a), Now § 825.126(a)(1) and (a)(2)

The Final Rule replaces the existing definition of “active duty” with two new definitions: (1) “covered active duty,” as it applies to members of the regular armed forces, and (2) “covered active duty or call to covered active duty,” as it applies to members of the reserves.

The new definition of “covered active duty,” as it relates to the regular armed forces, requires that the service member be deployed with the armed forces in a foreign country.[4]

The new definition of “covered active duty or call to covered active duty,” as it relates to reserves members, requires that the service member be under a call or order to active duty during the deployment of the member to a foreign country under a federal call or order to active duty in support of a contingency operation. While the FY 2010 NDAA struck the term “contingency operations” from the FMLA, the DOL has taken the position that members of the reserves must be called to duty in support of a contingency operation in order for their family members to be entitled to qualifying exigency.

Exigency Leave for Child Care and School Activities — § 825.126(a)(3), Now § 825.126(b)(3)

The Final Rule places limits on exigency leave to arrange for child care or attend certain school activities for a military member’s son or daughter. Specifically, the Final Rule states that the military member must be the spouse, son, daughter, or parent of the employee requesting leave in order to qualify for the leave. The child in question could be “the military member’s biological, adopted, or foster child, stepchild, legal ward, or child for whom the military member stands in loco parentis, who is either under age 18 or age 18 or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence.” The child for whom child care leave is sought need not be the child of the employee requesting leave.

The DOL specifically declined to extend qualifying exigency leave to employees who stand in loco parentis to a child of a military member when that employee does not have the statutorily required relationship with the military member for that leave. For example, while the mother of a military member may take leave to care for the military member’s child, the military member’s mother-in-law is not qualified for such leave, regardless of her relationship with the child, because the military member is not the spouse/son/daughter/parent of the employee requesting leave.

The DOL also declined to provide a specific category of exigency leave to address educational and related services for disabled children, noting that the current regulations are sufficient to cover meetings about eligibility, placement, and services and meetings related to a child’s individualized education plan. The DOL comments make clear that child care and school activity exigency leave does not cover routine academic concerns.

Exigency Leave for Rest and Recuperation — § 825.126(a)(6), Now § 825.126(b)(7)

The Final Rule increases the maximum number of days from five to 15 calendar days for exigency leave to bond with a military member on rest and recuperation leave, beginning on the date the military member begins his or her rest and recuperation leave.

The actual amount of leave provided to the employee should be consistent with the leave provided by the military to the member on covered duty. For example, if the military allows a member 10 days of rest and recuperation leave, the employee is entitled to 10 days. The leave may be taken intermittently, or in a single block, as long as the leave is taken during the period of time indicated on the military member’s rest and recuperation orders.

New Exigency Leave for Parental Care — Now § 825.126(b)(8)

The Final Rule adds parental care as a qualifying exigency for which leave may be taken. This allowance tracks the child care exigency provision and allows parental care exigency leave for the spouse, parent, son, or daughter of a military member in order to do the following:

  • Arrange for alternative care for a parent of the military member when the parent is incapable of self-care and the covered active duty or call to covered active duty status of the military member necessitates a change in existing care arrangements
  • Provide care for a parent of the military member on an urgent, immediate-need basis (but not on a routine, regular, or everyday basis) when the parent is incapable of self-care and the need to provide such care arises from the covered active duty or call to covered active duty status of the military member
  • Admit or transfer a parent of the military member to a care facility when the admittance or transfer is necessitated by the covered active duty or call to covered active duty status of the military member
  • Attend meetings with staff at a care facility for a parent of the military member (e.g., meetings with hospice or social service providers) when such meetings are necessitated by the covered active duty or call to covered active duty status of the military member

The military member’s parent must be incapable of self-care, which is defined as requiring active assistance or supervision to provide daily self-care in three or more “activities of daily living” (e.g., grooming, dressing, and eating) or “instrumental activities of daily living” (e.g., cooking, cleaning, and paying bills).

Final Rules Relating to Military Caregiver Leave

Certification Provisions for Caregiver Leave — § 825.310

The existing regulations limited the type of healthcare providers authorized to certify a serious injury or illness for military caregiver leave to providers affiliated with the U.S. Department of the Defense (DOD) (e.g., a Veterans Affairs facility (VA) or DOD-TRICARE provider). The Final Rule eliminates this distinction and allows any healthcare provider authorized under section 825.125 to certify injury or illness under the military caregiver provisions. In doing so, the DOL recognized that private healthcare providers might be unable to make certain military-related determinations to certify that the serious injury or illness is related to military service. Therefore, the Final Rule will allow providers to rely on determinations from an authorized DOD or VA representative on these issues.

Because of this change, the Final Rule will allow for second and third opinions on certifications of military caregiver leaves for non-DOD/VA providers. The Final Rule does not alter the prohibition on second and third opinions when the certification has been completed by a DOD/VA authorized provider.

The DOL has developed new Forms WH-385 and WH-385-v to help employers meet the FMLA’s certification requirements. While the use of the forms is optional, employers may not require any information beyond what is authorized by regulation.

Leave to Care for a Covered Service Member with a Serious Injury or Illness — § 825.127

As employers will recall, military caregiver leave provides a 26-week leave entitlement for eligible family members to care for seriously ill or injured military members. The existing regulations specifically excluded former members of the regular armed forces, former members of the National Guard and reserves, and members on the permanent disability list from the definition of a “covered service member.” The Final Rule will remove this exclusion so that military caregiver leave now applies to former members of the military.

Definition of “Covered Veteran” for Caregiver Leave — § 825.127

The existing regulations did not define “covered service member” with regard to veterans. The Final Rule will remedy this gap and include veterans in the applicable definition. Specifically, covered service members include (i) a covered veteran (ii) who is undergoing medical treatment, recuperation, or therapy (iii) for a serious injury or illness.

A “covered veteran” is defined as a member of the armed forces, National Guard, or reserves who was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran.

Employers need to be aware that the Final Rule excludes the period between October 28, 2009, and March 8, 2013 (the effective date of the Final Rule) from the five-year “look back” for covered veteran status. This grace period attempts to address complexities stemming from the DOL’s position that military caregiver leave did not become effective for veterans until its proposed rules became final.

Furthermore, the Final Rule reiterates the DOL’s position that leave provided to veterans under this provision before March 8, 2013, cannot be counted against an employee’s leave entitlement because companies provided it voluntarily before the effective date of the Final Rule. It is unclear if the courts will agree with this interpretation, and employers should proceed with caution.

Definition of “Serious Injury or Illness” — § 825.127

The Final Rule clarifies that a serious injury or illness can include a preexisting condition aggravated by military service in the line of duty on active duty. The Final Rule explains that a preexisting injury or illness generally will be considered to have been aggravated in the line of duty where there is an increase in the severity of such injury or illness during service, unless there is a specific finding that the increase in severity is due to the natural progression of the injury or illness.

Under the Final Rule, a current member of the armed forces must have a serious injury or illness that renders the member medically unfit to perform the duties of the member’s office, grade, rank, or rating.

The Final Rule also defines “serious injury or illness” of a covered veteran. Like the definition of “serious injury or illness” for military service, the serious injury or illness of a covered veteran must be incurred in, or preexisting but aggravated by, the line of duty on active duty. The serious injury or illness of a covered veteran also must be one of the following:

  • 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 that rendered the service member unable to perform the duties of the service member’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% or greater, with such VASRD rating being based, in whole or in part, on the condition precipitating the need for military caregiver leave
  • A physical or mental condition that substantially impairs, or would do so absent treatment, the covered veteran’s ability to secure or follow a substantially gainful occupation by reason of a disability or disabilities related to military service
  • An injury, including a psychological injury, on the basis of which the covered veteran has been enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers

The DOL noted that, while the definition of a covered veteran’s “serious injury or illness” includes conditions that impair the ability of a veteran to work, covered veterans may be employed. The DOL offers the example of a veteran with post-traumatic stress disorder who is able to work because of medical treatment but who may still need care from a family member for other reasons (e.g., to drive the veteran to medical appointments or to assist the veteran with basic medical needs).

The commentary in the Final Rule also makes it clear that, although a military member’s Social Security Disability Insurance determination is not dispositive of having a qualifying serious injury or illness, a private healthcare provider might consider the determination in his or her assessment.

Special Rules for Airline Flight Crews

The AFCTCA, which took effect on December 21, 2009, provides that an airline flight crew employee will meet the hours-of-service eligibility requirement if he or she has worked or been paid for not less than 60% of the applicable total monthly guarantee (or its equivalent) and has worked or been paid for not less than 504 hours (not including personal commute time or time spent on vacation, medical, or sick leave) during the previous 12 months. Airline flight crew employees continue to be subject to the FMLA’s other eligibility requirements.

The Final Rule includes provisions to align the existing regulations with the passage of the AFCTCA. Employers should note that the regulations applicable to airline flight crews in the Final Rule are wholly contained in a separate, newly titled subpart, “Subpart H – Special Rules Applicable to Airline Flight Crew Employees,” and are not integrated into the existing regulations by topic.

Hours-of-Service Requirement — § 825.801

Because the AFCTCA established a special hours-of-service requirement for airline flight crew employees, the DOL has adopted new section 825.801, which largely tracks the DOL’s 2012 proposal. Airline flight crew employees may become eligible under the FMLA (as amended by the AFCTCA) if they have either the required number of “hours worked” or “hours paid” during the previous 12-month period.

The Final Rule provides that an airline flight crew employee can meet the hours-of-service requirement under the FMLA if he or she (1) meets the standard eligibility threshold contained in section 825.110 (1,250 hours/12 months) or (2) has worked or been paid for not less than 60% of his or her applicable monthly guarantee and has worked or been paid for not less than 504 hours.

For airline employees who are on reserve status, the “applicable monthly guarantee” is defined in new section 825.801(b)(1) as the number of hours for which an employer has agreed to pay the employee for any given month. For airline employees who are not on reserve, the applicable monthly guarantee is the minimum number of hours for which an employer has agreed to schedule such employee for any given month.

The Final Rule clarifies that employers have the burden of proof in showing that an airline flight crew employee is not eligible for leave.

Calculation of Leave — § 825.802

The Final Rule allows airline flight crews up to 72 days of leave during any 12-month period to use for one or more of the following reasons: as an employee’s basic leave entitlement for the employee’s own illness; to care for an ill spouse, child, or parent; for the birth or adoption of a child or placement of a child in the employee’s home for foster care; or for exigent circumstances associated with the employee’s spouse, son, daughter, or parent on covered active duty. This entitlement is based on a uniform six-day workweek for all airline flight crews, regardless of time actually worked or paid, multiplied by the statutory 12-workweek entitlement. Airline flight crews are entitled to up to 156 days of military caregiver leave.

When a flight crew employee takes intermittent or reduced-schedule leave, the Final Rule requires employers to account for the leave using an increment no greater than one day.

Recordkeeping Requirements — § 825.802

In addition to the recordkeeping requirement applicable to all employers under the FMLA, the Final Rule requires airline employers to maintain any records or documents that specify the applicable monthly guarantee for each type of employee to whom the guarantee applies, including any relevant collective bargaining agreements or employer policy documents that establish the applicable monthly guarantee, as well as records of hours worked.

Other Changes Universal to the FMLA

Increments of Intermittent FMLA Leave — § 825.205

The existing version of section 825.205(a) defined the minimum increment of FMLA leave to be used when taken intermittently or on a reduced schedule as an increment no greater than the shortest period of time that the employer uses to account for other forms of leave, provided that it is not greater than one hour. According to the comments of the Final Rule, the DOL intended to emphasize that an employee’s entitlement should not be reduced beyond the actual leave taken and therefore added language to paragraph (a)(1), stating that an employer may not require an employee to take more leave than is necessary to address the circumstances that precipitated the need for leave. This change does not necessitate action for any employer already complying with the shortest increment rule.

The DOL further clarified that the additions to section 825.205(a) underscore the rule that if an employer chooses to waive its increment-of-leave policy in order to return an employee to work at the beginning of a shift, the employer is likewise choosing to waive further deductions from the FMLA entitlement period. In other words, if the employee is working, the time cannot count against FMLA time, no matter what the smallest increment of leave may be.

The DOL had proposed to remove the language in section 825.205(a) that allowed for varying increments at different times of the day or shift in favor of the more general principle of using the employer’s shortest increment of any type of leave at any time. However, the Final Rules does not incorporate this change. Employers who account for use of leave in varying increments at different times of the day or shift may also do so for FMLA leave, provided that the increment used for FMLA leave is no greater than the smallest increment used for any other type of leave. An employer can account for FMLA leave in smaller increments at its discretion.

The existing version of section 825.205(a)(2) included a provision on physical impossibility, which provided that, 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 is counted against the employee’s FMLA leave entitlement. The DOL had proposed to either (1) delete this provision or (2) add language emphasizing that it is an employer’s responsibility to restore an employee to his or her same or equivalent position at the end of any FMLA leave as soon as possible.

The Final Rule retains the physical impossibility provision with clarifying language that the period of physical impossibility is limited to the period during which the employer is unable to permit the employee to work prior to or after the FMLA period.

The Final Rule also clarifies that the rule stated in section 825.205(c), which addresses when overtime hours that are not worked may be counted as FMLA leave, applies to all FMLA qualifying reasons and not just serious health conditions.

The DOL had proposed to add section 825.205(d), which would have provided a methodology for calculating leave for airline flight crew employees, but noted in the comments to the Final Rule that this language will now appear in section 825.802.

Recordkeeping Requirements — § 825.500

The Final Rule adds a sentence to section 825.500, reminding employers of their obligation to comply with the confidentiality requirements of the Genetic Information Nondiscrimination Act of 2008 (GINA). To the extent that records and documents created for FMLA purposes contain “family medical history” or “genetic information” as defined in GINA, employers must maintain such records in accordance with the confidentiality requirements of title II of that act. The DOL noted that GINA permits genetic information obtained by the employer, including family medical history, in FMLA records and documents to be disclosed consistent with the requirements of the FMLA.

Eligible Employees — § 825.110

The Final Rule makes clarifications to note that the protections afforded by the Uniformed Services Employment and Reemployment Rights Act (USERRA) extend to all military members, both active duty and reserve, returning from USERRA-qualifying military service. The DOL noted in the comments to the Final Rule that the previous regulation may have been unclear in that USERRA rights apply to employees returning from service in the regular armed forces.

Forms

The regulations will no longer include model forms as a part of the appendices. These forms will remain available on the DOL’s website. The practical implication of this change is that the DOL will be able to make changes to the forms without going through the formal rulemaking process. The DOL has made small modifications to the model forms. For example, Form WH-384 was modified to refer to a military member, use the term “covered active duty,” and contain the requirement that the member be deployed to a foreign country. The Final Rules has also created new forms for the certification of a serious injury or illness of a covered veteran—Forms WH-385 and WH-385-v.

New Administration Interpretation

In addition to the Final Rule, the DOL has recently published Administrator’s Interpretation No. 2013-1 (Administrator Interpretation), which provides clarifications to the existing definition of “son or daughter,” as it applies to an individual who is 18 years of age or older and incapable of self-care because of a mental or physical disability.[5]Employers should note the following important provisions set forth in the Administrator Interpretation:

  • The FMLA regulations adopt the Americans with Disabilities Act’s (ADA’s) definition of “disability” as a physical or mental impairment that substantially limits a major life activity.[6]
  • The FMLA regulations define “incapable of self-care because of mental or physical disability” as when an adult son or daughter “requires active assistance or supervision to provide daily self-care in three or more of the ‘activities of daily living’ or ‘instrumental activities of daily living.'”[7] Determinations with respect to the disability of the son or daughter should be made in accordance with the ADA.
  • The age of onset of the disability is irrelevant to this analysis. The adult son or daughter must also have a qualifying serious health condition, and the parent must be “needed to care” for the son or daughter, which is defined as including physical care, transportation for healthcare, and psychological comfort and reassurance for a son or daughter whose serious health conditions require inpatient or home care.
  • The definition of a “son or daughter” under the covered military leave entitlement is distinct from the definition for basic coverage. However, the same son or daughter could qualify a parent for both types of leave. For example, if an employee exhausts 26 weeks of military caregiver leave in one FMLA year, this same employee can take FMLA leave to care for that same son or daughter in subsequent years due to the adult child’s serious health condition, as long as all other FMLA requirements, such as the 1,250 hours-of-service rule, are met.

Implications

Employers should review their FMLA policy, internal processes, and any associated forms to ensure that they comply with the Final Rule and new Administrator Interpretation. Employers who have offered leave pursuant to the veteran’s provisions prior to March 8, 2013, should contact counsel when counting that leave against an employee’s entitlement.

[1]. View the Final Rule here.

[2]. View the new forms here.

[3]. Notably, the DOL has taken the position that the 2009 statutory amendments relating to leave to care for a veteran will not actually go into effect until March 8, 2013-the date when the Final Rule becomes effective. Because caregiver leave for veterans is limited to those needing treatment within five years of discharge from the military, the DOL has provided a special formula for calculating caregiver leave for family members of veterans discharged between 2009 and 2013. We recommend consulting with counsel with respect to this formula.

[4]. The Final Rule clarifies that active duty orders will generally specify whether a member’s deployment is to a foreign country. To further the point, the Final Rule defines “deployment” with the armed forces to a foreign country as deployment to areas outside of the United States, the District of Columbia, or any territory or possession of the United States, including deployment in international waters.

[5]. View the Administrator Interpretation here.

[6]. 29 C.F.R. § 825.122(c)(2).

[7]. 29 C.F.R. § 825.122(c).

Copyright © 2013 by Morgan, Lewis & Bockius LLP

 

DOL Publishes New Employees’ Guide to the FMLA

The National Law Review recently published an article by Joel M. Nolan of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., regarding FMLA:

Recently, the U.S. Department of Labor released a user-friendly Employees’ Guide to the Family and Medical Leave Act.  The guide is targeted at employees, but may also serve as a helpful tool for employers looking for an efficient summary of the law.

The guide does not provide new information or legal interpretations of the law; rather, it provides a plain-language overview of the FMLA’s major provisions and contours, such as FMLA eligibility, FMLA rights and protections, the process for requesting leave (and associated notice provisions), FMLA certifications, and job reinstatement.  In addition, the guide highlights certain unique circumstances and incorporates some of the DOL’s  interpretive guidance on particular issues.  For example, the guide discusses eligibility guidelines for airline flight attendants and flight crew employees, describes when employees may be eligible to take FMLA leave to care for certain children with whom the employee has no legal relationship (or to care for another as such a child), and emphasizes the importance of employer FMLA policies.  Further, the guide provides clear flowcharts regarding FMLA eligibility and certification and the process for taking FMLA leave, as well as information for employees on filing an FMLA complaint with the DOL’s wage-and-hour division.

The DOL has also archived a webinar about the guide, which is available here:  http://www.dol.gov/whd/fmla/employeeguide-webinar.htm

©1994-2012 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

DOL Proposes New FMLA Regulations on Military Family Leave

Recently in The National Law Review was an article regarding New FMLA Regulations written by the Labor & Employment Practice of Morgan, Lewis & Bockius LLP:

Proposed rules impact exigency leave and military caregiver leave and include clarifications on increments of intermittent leave.

On January 31, the U.S. Department of Labor (DOL) made public proposed Family and Medical Leave Act (FMLA) regulations that attempt to align existing regulations with two statutory amendments passed in 2009. The DOL’s Notice of Proposed Rulemaking (NPRM) addresses the coverage of military caregiver and exigency leaves and revamps eligibility requirements for certain airline industry employees. It also proposes changes to other FMLA regulations, although it does not contain the kind of groundbreaking regulatory changes issued in 2008. Nevertheless, the proposed changes do contain important clarifications to existing law that, if finalized, will impact employers.

Background on FMLA Amendments

As most employers are now well aware, the FMLA was amended in January 2008 to provide two types of military family leave for FMLA-eligible employees:

  • “Exigency leave”: A 12-week entitlement for eligible family members of National Guard and Reserves servicemembers to deal with exigencies related to a call to active duty.
  • “Military caregiver leave”: A 26-week entitlement for eligible family members to care for seriously ill or injured servicemembers of the regular Armed Forces, National Guard, and Reserves.

Less than a year later, Congress once again amended the FMLA. Through the National Defense Authorization Act for Fiscal Year 2010 (FY 2010 NDAA), P.L. No. 111-84, Congress expanded both types of military family leave by doing the following:

  • Expanding the FMLA’s military caregiver leave entitlement to include veterans with serious injuries or illnesses who are receiving medical treatment, recuperation, or therapy if the veterans were members of the Armed Forces at any time during the period of five years preceding the date of the medical treatment, recuperation, or therapy. Veterans had not been covered under existing law.
  • Expanding the exigency leave entitlement to include family members of the regular Armed Forces deployed to a foreign country who were not entitled to exigency leave under existing law.[1]
  • Extending the availability of military caregiver leave for current members of the Armed Forces to include a preexisting serious injury or illness that was aggravated by active duty service.

FY 2010 NDAA did not include an effective date, so these changes were presumed to be effective on October 28, 2009. The DOL, however, has now taken the position that employers are not required to provide employees with military caregiver leave to care for a veteran until the DOL defines, through regulation, a qualifying serious injury or illness of a veteran. Thus, according to the DOL, until the regulations are finalized, any time provided voluntarily by employers under this provision cannot count to reduce an employee’s FMLA entitlement. Because the statute did not have a delayed effective date for this provision, however, it is not clear whether a court would agree with this approach.

Later in 2009, Congress also passed the Airline Flight Crew Technical Corrections Act (AFCTCA), Public Law 111-119, to provide an alternate eligibility requirement for airline flight crew employees.

Now, more than two years after the passage of the 2009 amendments, the DOL has issued its NPRM to promulgate rules related to the FY 2010 NDAA and AFCTCA. The public comment period on these proposed rules will close 60 days after the NPRM is officially published in theFederal Register.

A summary of the key proposals follow.

Proposals Relating to Qualifying Exigency Leave

Definition of Active Duty

§ 825.126(a)

The DOL proposes important amendments that help clarify what kind of service qualifies for exigency leave under the FMLA. Specifically, the proposal would replace the existing definition of “active duty” with two new definitions: “covered active duty” as it applies to the Regular Armed Forces and “covered active duty” as it applies to the Reserves. The DOL believes that this change will “more accurately reflect the fact that there are limitations on the types of active duty that can give rise to qualifying exigency leave.”

The proposed definition of “covered active duty” as it relates to the Regular Armed Forces comes as no surprise, given the mandate of the FY 2010 NDAA. Simply put, a member of the Regular Armed Forces meets the definition of “covered active duty” when deployed with the Armed Forces in a foreign country.

The proposed definition of “covered active duty” as it relates to Reserve members, however, is a bit more nuanced. Proposed Section 825.126(a)(2) defines “covered active duty or call to covered active duty” status for a member of the Reserve components as duty under a call or order to active duty during the deployment of the member to a foreign country under a federal call or order to active duty in support of a contingency operation. While the FY 2010 NDAA struck the term “contingency operations” from the FMLA, the DOL takes the position that it will continue to require members of the Reserve components to be called to duty in support of a contingency operation in order for their family members to be entitled to qualifying exigency.

That means that, if the proposal is adopted, employers would need to offer exigency leave only to those Reserve members who are (1) called to duty in support of a contingency operation when that call is (2) in a foreign country.

Exigency Leave for Childcare and School Activities

§ 825.126(a)(3)

The current regulations allow eligible employees to take qualifying exigency leave to arrange childcare or attend certain school activities for a military member’s son or daughter. The proposed regulations would place new limits on this type of leave. Specifically, if the proposal becomes effective, the military member must be the spouse, son, daughter, or parent of the employee requesting leave in order for the employee to qualify for the leave under the DOL’s proposed amendment to the regulation. The child in question could be “the military member’s biological, adopted, or foster child, stepchild, legal ward, or child for whom the military member stands in loco parentis, who is either under age 18 or age 18 or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence.”

For example, the employee may be the mother of the military member and may need qualifying exigency childcare and school activities leave for the military member’s child. Under this proposal, the child for whom childcare leave is sought need not be a child of the employee requesting leave.

Exigency Leave for Rest and Recuperation

§ 825.126(a)(6)

Current regulations allow an eligible employee to take up to five days of leave to spend time with a military member on rest and recuperation leave during a period of deployment. The DOL proposes to expand the maximum duration of rest and recuperation qualifying exigency leave from five to 15 days, noting that the leave remains limited to the actual amount of time granted to the military member.

The proposal also clarifies that employers may request a copy of the member’s rest and recuperation leave orders or other military documentation to certify the need for leave.

Proposals Relating to Military Caregiver Leave

Certification Provisions for Caregiver Leave

§ 825.310

The current regulations limit the type of healthcare providers authorized to certify a serious injury or illness for military caregiver leave to providers affiliated with the Department of Defense (DOD) (e.g., a Department of Veterans Affairs (VA) or DOD-TRICARE provider). The proposed regulations would eliminate this distinction and would allow any healthcare provider that is authorized under Section 825.125 to certify a serious health condition under the FMLA to also certify a serious injury or illness under the military caregiver provisions.

Because of this change, the DOL also proposes to remove the prohibition on second and third opinions on certifications of military caregiver leaves—at least as it relates to non-DOD/VA providers. That is, the DOL proposes in Section 825.310(d) to provide that second and third opinions are not permitted when the certification has been completed by one of the types of DOD/VA authorized healthcare providers identified in Section 825.310(a)(1)-(4), but second and third opinions are permittedwhen the certification has been completed by a healthcare provider that is not one of the types identified in Section 825.310(a)(1)-(4).

Definition of Covered Veteran for Caregiver Leave

§ 825.127

Since the current regulations do not define “covered servicemember” with regard to veterans, the DOL plans to define “covered veteran” as an individual who was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran.

That is, a veteran will be considered a covered veteran under FMLA if he or she was a member of the Armed Forces within the five-year period immediately preceding the date the requested leave is to begin. If the leave commences within the five-year period, the employee may continue leave for the applicable “single 12-month period,” even if it extends beyond the five-year period. This interpretation may exclude veterans of previous conflicts (Gulf War veterans) and may exclude certain veterans of the War in Afghanistan and Operation Iraqi Freedom, depending on the veteran’s discharge date and the date the eligible employee’s leave is to begin.

Definition of Serious Injury or Illness

§ 825.127

In the NPRM, for both current members of the Armed Forces and covered veterans, a serious injury or illness that existed before the beginning of the military member’s active duty and was aggravated by serving in the line of duty on active duty includes both conditions that were noted at the time of entrance into active service and conditions that the military was unaware of at the time of entrance into active service but that are later determined to have existed at that time. A preexisting injury or illness will generally be considered to have been aggravated by service in the line of duty on active duty where there is an increase in the severity of such injury or illness during service, unless there is a specific finding that the increase in severity is due to the natural progression of the injury or illness.

In addition, and because the FY 2010 NDAA requires the DOL to define a qualifying serious injury or illness for a veteran, the DOL proposes a new Section 825.127(c)(2) that would define serious injury or illness for a covered veteran with three alternative definitions set out in paragraphs (c)(2)(i), (c)(2)(ii), and (c)(2)(iii).

  • Definition 1: Proposed Section 825.127(c)(2)(i) defines a serious injury or illness of a covered veteran as a serious injury or illness of a current servicemember, as defined in Section 825.127(c)(1), that continues after the servicemember becomes a veteran. Thus, if a veteran suffered a serious injury or illness when he or she was an active member of the Armed Forces and that same injury or illness continues after the member leaves the Armed Forces and becomes a veteran, the injury or illness will continue to qualify as a serious injury or illness warranting military caregiver leave.
  • Definition 2: Proposed Section 825.127(c)(2)(ii) defines a serious injury or illness for a covered veteran as a physical or mental condition for which the covered veteran has received a VA Service Related Disability Rating (VASRD) of 50% or higher and such VASRD rating is based, in whole or part, on the condition precipitating the need for caregiver leave. The DOL’s review indicates that a VASRD disability rating of 50% or higher encompasses disabilities or conditions such as amputations, severe burns, post traumatic stress syndrome, and severe traumatic brain injuries. However, the DOL notes that there are injuries that do not qualify as creating a total disability under the VASRD system that will qualify as a serious injury or illness for military caregiver leave. For example, burns resulting in distortion or disfigurement (see 38 C.F.R. § 4.118) or psychological disorders resulting from stressful events (see 38 C.F.R. § 4.129) occurring in the line of duty on active duty may not result in a VASRD rating of 60% or higher, but nonetheless may be severe enough to substantially impair a veteran’s ability to work and therefore should be considered qualifying injuries or illnesses. The DOL is particularly concerned that military caregiver leave be available to family members of veterans suffering from, or receiving treatment for, such injuries or illnesses, which may include continuing or follow-up treatment for burns, including skin grafts or other surgeries, and amputations, including prosthetic fittings, occupational therapy, and similar care.
  • Definition 3: Proposed Section 825.127(c)(2)(iii) is the third alternative definition of a serious injury or illness for a covered veteran; it covers injuries and illnesses that are not technically within the definitions proposed in paragraph (c)(2)(i) or (ii), but are of similar severity. The DOL proposes to define a serious injury or illness for a covered veteran in the third alternative as a physical or mental condition that either substantially impairs the veteran’s ability to secure or follow a substantially gainful occupation by reason of a service-connected disability, or would do so absent treatment. This proposed definition is intended to replicate the VASRD 50% disability rating standard under paragraph (c)(2)(ii) for situations in which the veteran does not have a service-related disability rating from the VA. The DOL expects that, when making determinations of serious injury or illness under this proposed definition, private healthcare providers will do so in the same way they make similar determinations for Social Security Disability claims and Workers’ Compensation claims. The DOL stresses that this definition is meant to comprehensively encompass traumatic brain injuries, post traumatic stress disorder, and other such conditions that may not manifest until sometime after the member has become a veteran.

Additionally, the DOL seeks comments on whether it should make a rule that veterans who qualify for enrollment in VA’s Program of Comprehensive Assistance for Family Caregivers automatically meet the requirement of having a serious injury or illness.

Proposals Affecting Airline Flight Crews

Effective December 21, 2009, the AFCTCA provides that an airline flight crew employee will meet the hours of service eligibility requirement if he or she has worked or been paid for not less than 60% of the applicable total monthly guarantee (or its equivalent) and has worked or been paid for not less than 504 hours (not including personal commute time or time spent on vacation, medical, or sick leave) during the previous 12 months. Airline flight crew employees continue to be subject to the FMLA’s other eligibility requirements.

The DOL proposal includes provisions to align existing regulations with the passage of the AFCTCA. The proposal also does the following:

  • Defines monthly guarantees for airline employees and “line holders” (e.g., flight crew employees who are not on reserve status). For airline employees who are on reserve status, the applicable monthly guarantee means the number of hours for which an employer has agreed to pay the employee for any given month. For line holders, the applicable monthly guarantee is the minimum number of hours for which an employer has agreed to schedule such employee for any given month.
  • Defines how to calculate “hours worked” and “hours paid.”  Airline flight crew employees may become eligible under the FMLA (as amended by the AFCTCA) if they have either the required number of “hours worked” or “hours paid.” The DOL proposes to base the number of hours that an airline flight crew employee has worked on the employee’s duty hours during the previous 12-month period. Hours paid, according to the DOL, are routinely tracked by most airlines’ payroll systems.
  • Adds recordkeeping requirements for employers of airline flight crews. The requirements include all the records required of other employers under the FMLA, plus any records or documents that specify the applicable monthly guarantee for each type of employee to whom the guarantee applies, including any relevant collective bargaining agreements or employer policy documents that establish the applicable monthly guarantee, as well as records of hours scheduled, in order to be able to apply the leave calculation principles contained in proposed Section 825.205(d).

Other Proposed Changes Universal to the FMLA

Increments of Intermittent FMLA Leave

§ 825.205

The current Section 825.205(a) defines the minimum increment of FMLA leave to be used when taken intermittently or on a reduced schedule as an increment no greater than the shortest period of time that the employer uses to account for other forms of leave, provided that it is not greater than one hour. The DOL intends to emphasize that an employee’s entitlement should not be reduced beyond the actual leave taken and therefore proposes to add language to paragraph (a)(1) stating that an employer may not require an employee to take more leave than is necessary to address the circumstances that precipitated the need for leave. However, the DOL underscores that this principle remains subject to the rest of the rule, including the increment of leave rule. Thus, this change in the rules does not necessitate action for any employer already complying with the shortest increment rule.

The DOL notes that if an employee elects to substitute paid leave for the unpaid leave time offered under the FMLA, and the employer has a policy of offering paid leave in larger increments of time than unpaid leave, the employer can then require the employee to use more FMLA leave than necessary for the purpose of the leave in order to get the benefit of wage replacement. However, the employee can always elect to take the shorter increment of leave without pay to avoid drawing down the FMLA entitlement.

The DOL further proposes to clarify that the additions to Section 825.205(a) underscore the rule that if an employer chooses to waive its increment of leave policy in order to return an employee to work at the beginning of a shift, the employer is likewise choosing to waive further deductions from the FMLA entitlement period. In other words, if the employee is working, the time cannot count against FMLA time, no matter what the smallest increment of leave may be.

The DOL also proposes to remove the language in Section 825.205(a) allowing for varying increments at different times of the day or shift in favor of the more general principle of using the employer’s shortest increment of any type of leave at any time

Currently, Section 825.205(a)(2) includes a provision on physical impossibility, which provides that 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 is counted against the employee’s FMLA leave entitlement. The DOL proposes to do either of the following:

  • Delete this provision.
  • Add language emphasizing that it is an employer’s responsibility to restore an employee to his or her same or equivalent position at the end of any FMLA leave as soon as possible.

If the DOL retains the provision as modified, it offers the following example: If after three hours of FMLA leave use it was physically possible to restore a flight crew employee to another flight, the employer would be required to do so. If, however, no other flight is available to which the employee could be assigned, or no other equivalent work is available, restoration could be delayed and the employee’s FMLA entitlement reduced for the entire period the employee is forced to be absent.

The DOL also proposes to clarify that the rule stated in Section 825.205(c), which addresses when overtime hours that are not worked may be counted as FMLA leave, applies to all FMLA qualifying reasons, not just serious health conditions.

The DOL further proposes to add Section 825.205(d), which will provide a methodology for calculating leave for airline flight crew employees.

Recordkeeping Requirements

§ 825.300

The DOL proposes adding a sentence to Section 825.300 reminding employers of their obligation to comply with the confidentiality requirements of the Genetic Information Nondiscrimination Act of 2008 (GINA). To the extent that records and documents created for FMLA purposes contain “family medical history” or “genetic information” as defined in the GINA, employers must maintain such records in accordance with the confidentiality requirements of Title II of GINA. The DOL notes that GINA permits genetic information, including family medical history, obtained by the employer in FMLA records and documents to be disclosed consistent with the requirements of the FMLA

Conclusion

With most employers having taken the position that the veteran’s provisions went into effect when the FMLA was amended in 2009, little action is called for at this time. However, employers should take this opportunity to review their FMLA policy, and should be aware that the DOL may take issue if a qualifying exigency for a veteran is counted against an employee’s FMLA entitlement such that the employee is later restricted in taking another leave. Further, employers should consider whether they wish to provide comments to the DOL during the comment period. Beyond that, most employers need only “watch and wait” until the DOL finalizes this rulemaking process to make tweaks to existing policies. Nevertheless, the DOL’s NPRM serves as a good reminder to employers to ensure that their FMLA policies incorporate the 2009 statutory changes.

Copyright © 2012 by Morgan, Lewis & Bockius LLP.