HUMAN CAPITAL PRACTICE ALERT March 2013 www.willis.comNEW FMLA POSTER,FORMS, POLICYREQUIRED: MARCH 8The U.S. Department of Labor (DOL) has released the new FederalFamily Medical Leave Act Notice revised 2/5/13. The updates areeffective March 8 and include changes to military family leave,allowing for greater leeway to attend to personal matters and medicalneeds related to service members’ families. Additionally, airline flightcrew employees will have greater access to benefits of the FMLA. Thefinal regulation also revises a handful of existing regulatoryprovisions and removes the model FMLA forms from the appendicesof the regulations. (The final rule implementing the FMLAamendments were released under the National DefenseAuthorization Act of 2010 [NDAA] and the Airline Flight CrewTechnical Corrections Act [AFCTCA].)Employers are therefore well advised to review and revise writtenFMLA policies and/or employee handbooks as necessary to reflectthe expanded categories of FMLA leave. They should also obtain newFMLA certification forms and post the new FMLA poster, all ofwhich are available via the DOL’s website.MILITARY FAMILY LEAVEThe new rules regarding military family leave are not controversialand effectively carry out the amendments made by the NDAA.CAREGIVER LEAVECaregiver leave can be taken up to five years after the servicemember leaves the military and for an injury or illness that resultedfrom a condition predating the individual’s active duty but that wasexacerbated by the military service. Prior to the NDAA, caregiverleave was available only to employees caring for current servicemembers, not veterans.
QUALIFYING EXIGENCY meet the FMLA 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 and has worked or been paid for not fewer thanPrior to the NDAA’s enactment, exigency leave 504 hours during the previous 12 months. This calculation does notonly was available to family members of include personal commute time or time spent on vacation, medicalReserve and National Guard members, not or sick leave. The changes will result in more employees who areregular service members. However, the NDAA eligible for FMLA leave.and proposed regulations reverse thatposition. FMLA leave is available to family The final rule also includes listing of all special requirementsmembers of regular armed service members, applicable only to airline flight crew employees and their employersas well as family members of Reserve and (subpart H), adoption of a uniform entitlement for airline flight crewNational Guard members, as long as they are employees of 72 days of leave per applicable leave year for one orbeing deployed to a foreign country. The final more FMLA-qualifying reason and 156 days of military caregiverregulation also added and tweaked current leave, and imposition of special recordkeeping requirements onqualifying exigencies: employers of airline flight crew employees.n Expands from five to 15 days the amount OTHER NOTABLE CHANGES of “Rest and Recuperation” FMLA leave an eligible employee can take to spend with a covered family member; andn Creates a new category for parental care PHYSICAL IMPOSSIBILITY (caring for the service member’s parent when the parent is incapable of self-care) Although the DOL appeared poised to make changes to the “physical impossibility rule,” it simply reminded employers that this rule is to be applied in only the most limited circumstances, and that theAIRLINE FLIGHT CREW FMLA employer bears the responsibility to restore the employee to theLEAVE same or equivalent position as soon as possible. Notably, the DOL shared the following in its Fact Sheet 28I:Enacted in 2009, AFCTCA closed an apparent “In a situation where it is physically impossible for anloophole in the “hours worked” eligibility employee using intermittent leave or working arequirements for airline pilots and flight reduced leave schedule to begin or end work mid-wayattendants whose unique schedules often left through a shift, the entire period the employee must bethem short of the hours required to qualify for absent is designated as FMLA-protected leave andFMLA leave. Under the FMLA, employees counts against the employee’s FMLA entitlement. Themust work at least 1,250 hours in the previous period of the physical impossibility is limited to the12-month period, which equates to 60% of a period when the employer is unable to permit thetypical 40-hour workweek. employee to work prior to a period of FMLA leave or return the employee to the same or equivalent positionAFCTCA applies the same concept to airline after a period of FMLA leave due to the physicalflight crews, providing that the hours flight impossibility. This rule applies only to situations wherecrew employees work or for which they are it is truly physically impossible to return the employeepaid – not just those hours working in flight – to work after an FMLA-qualifying absence, forcount as hours of service for purposes of example, a railroad conductor whose FMLA leaveFMLA eligibility. Under AFCTCA and the prevents him from boarding the train before it leavesFMLA regulations, an airline flight crew for its scheduled trip.”employee (as defined by FAA regulations) will 2 Willis North America • 3/13
INCREMENTS OF LEAVEThe DOL maintained a provision that allows employers to usevarying increments of leave at different times of the work day orshift. It reaffirmed the current rule that employers “must allowemployees to use FMLA leave in the smallest increment of time theemployer allows for the use of other forms of leave, as long as it is nomore than one hour.”DOL’S MODEL FMLA FORMSNotably, the WHD removed its model FMLA forms from theregulations’ appendices. Employers may now find the optional-useforms on the DOL website. This change was made so that DOL hasthe flexibility to change (and, hopefully, improve) the forms asneeded without getting bogged down in the regulatory approvalprocess. DOL remarked that any future substantive changes to theforms will remain subject to normal notice and commentRESOURCESMore information regarding the rule, including a side-by-sidecomparison of the new rule with the prior version, frequently askedquestions and a fact sheet, is available on the DOL’s website.CLARIFICATIONThe DOL has released clarification of the definition of “son ordaughter” under Section 101(12) of the FMLA as it applies to anindividual 18 years of age or older and incapable of self-care becauseof a mental or physical disability. 3 Willis North America • 3/13
KEY CONTACTSU.S. HUMAN CAPITAL PRACTICE OFFICE LOCATIONSNEW ENGLAND ATLANTIC Marietta, GA 770 425 6700Auburn, ME Baltimore, MD207 783 2211 410 584 7528 Miami, FL 305 421 6208Bangor, ME Knoxville, TN207 942 4671 865 588 8101 Mobile, AL 251 544 0212Boston, MA Memphis, TN617 437 6900 901 248 3103 Orlando, FL 407 562 2493Burlington, VT Metro DC802 264 9536 301 581 4262 Raleigh, NC 704 344 4856Hartford, CT Nashville, TN860 756 7365 615 872 3716 Savannah, GA 912 239 9047Manchester, NH Norfolk, VA603 627 9583 757 628 2303 Tallahassee, FL 850 385 3636Portland, ME Reston, VA207 553 2131 703 435 7078 Tampa, FL 813 490 6808Shelton, CT Richmond, VA 813 289 7996203 924 2994 804 527 2343 Vero Beach, FLNORTHEAST Rockville, MD 772 469 2842 301 692 3025Buffalo, NY MIDWEST716 856 1100 SOUTHEAST Appleton, WIMorristown, NJ Atlanta, GA 800 236 3311973 539 1923 404 224 5000 Chicago, ILMt. Laurel, NJ Birmingham, AL 312 288 7700856 914 4600 205 871 3300 312 348 7700New York, NY Charlotte, NC Cleveland, OH212 915 8802 704 344 4856 216 861 9100Norwalk, CT Gainesville, FL Columbus, OH203 523 0501 352 378 2511 614 326 4722Radnor, PA Greenville, SC Detroit, MI610 254 7289 704 344 4856 248 539 6600Wilmington, DE Jacksonville, FL Grand Rapids, MI302 397 0171 904 562 5552 616 957 2020 Willis North America • 02/13
Milwaukee, WI WESTERN262 780 3476 Fresno, CAMinneapolis, MN 559 256 6212763 302 7131763 302 7209 Irvine, CA 949 885 1200Moline, IL309 764 9666 Las Vegas, NV 602 787 6235Pittsburgh, PA 602 787 6078412 645 8506 Los Angeles, CASchaumburg, IL 213 607 6300847 517 3469 Phoenix, AZSOUTH CENTRAL 602 787 6235 602 787 6078Amarillo, TX806 376 4761 Portland, OR 503 274 6224Austin, TX512 651 1660 Rancho/Irvine, CA 562 435 2259Dallas, TX972 715 2194 San Diego, CA972 715 6272 858 678 2000 858 678 2132Denver, CO303 765 1564 San Francisco, CA303 773 1373 415 291 1567Houston, TX San Jose, CA713 625 1017 408 436 7000713 625 1082 Seattle, WAMcAllen, TX 800 456 1415956 682 9423Mills, WY The information contained in this publication is307 266 6568 not intended to represent legal or tax advice and has been prepared solely for educational purposes. You may wish to consult your attorneyNew Orleans, LA or tax adviser regarding issues raised in this504 581 6151 publication.Oklahoma City, OK405 232 0651Overland Park, KS913 339 0800San Antonio, TX210 979 7470Wichita, KS316 263 3211 Willis North America • 02/13