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:

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.

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_{[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).}

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