Revised FMLA Regulations Effective March 8, 2013

March 13, 2013 E-Alerts

Effective March 8, 2013, the Family and Medical Leave Act’s regulations have been revised on the issues of military leave and leave for airline flight crew members.

The revisions to the regulations were necessitated by the 2010 amendments to the FMLA (called the National Defense Authorization Act, which expanded leave for the families of military personnel), and by recent changes to the laws that apply to airline flight crew members. The revisions are fairly lengthy, but generally accomplish the following:

  • They provide leave for eligible employees with family members serving in the Regular Armed Forces (which mirrors the changes previously made to the law in 2010 on this point);
  • They clarify that leave is to be granted to family members of military personnel who have been subjected to a foreign deployment;
  • They increase the time an eligible family member may take for “rest and recuperation” from five days to a maximum of 15 days—which can be taken intermittently—to match the military member’s rest and recuperation leave orders;
  • They allow for leave for “parental care,” i.e., they allow an employee to take time off to make arrangements for the care of a parent who is incapable of self-care when the need arises out of a military member’s active duty or call to active duty;
  • They expand the definition of a service member’s “serious injury or illness” for military caregiver leave to cover pre-existing injuries or illnesses that were aggravated in the line of duty;
  • They expand military caregiver leave to care for covered veterans (i.e., those being treated for serious injuries or illness during the five-year period before the first date the eligible employee takes FMLA leave to care for them);
  • They allow an employer to request a second and third opinion for medical certifications under certain circumstances; and
  • They provide for bereavement-type leave following the death of a service member.

In addition, the amended regulations clarify that where an employer chooses to waive its increment-of-leave policy for any covered employee in order to return the employee to work, only the amount of leave actually taken can be counted against the FMLA entitlement.

The regulations relating to flight crew members address the hours needed in order for a particular employee to be eligible for FMLA leave. They also adopt a uniform entitlement for airline flight crew employees of 72 days of leave or 156 days in the case of military caregiver leave. Further, the regulations include a special recordkeeping requirement applicable to airline flight crew employees.

The Final Rule updates the FMLA optional-use forms (WH-380-EWH-380-FWH-381WH-384, and WH-385) to reflect the statutory changes, and it created a new optional-use form (WH-385-V) for the certification of a serious injury or illness for a veteran.

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