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The AR Group

FMLA Coverage Expanded in March 2013: Is Your Company Complying with the New FMLA Regulations?

By Christine Wilkinson

Has your company updated its policies ? and posters – to reflect the new changes in the Family and Medical Leave Act (FMLA)? Hopefully, the answer is yes. But if not, there is still time to become compliant.

On Friday, March 8, 2013, new regulations took effect that change several aspects of what employers need to do to ensure compliance with the FMLA. ?Here are the details.

What?s New in the FMLA?

?1.? ? Clarifications
The changes clarify the existing rules, but ?clarifications? regarding the FMLA actually mean changing how employers comply with the FMLA. The changes include these requirements:

    • Intermittent FMLA leave must be tracked using the smallest increment of time used for tracking other types of leave, and employers cannot track leave in increments larger than one hour.
    • An employer may not require the employee to take more leave than necessary to address the FMLA issue, and the employer can only calculate leave actually taken, and not for any time that is worked for the employer. For example, if an employee is on FMLA leave but is taking calls or sending emails from home, the time spent on those work tasks cannot be counted against the employee?s FMLA leave entitlement.
    • If FMLA documents contain medical information about an employee?s family member, employers must keep such information confidential pursuant to the Genetic Information Nondisclosure Act (GINA), which prohibits employers from discriminating against employees on the basis of genetic information. The reason is because many requests for FMLA leave are based on medical conditions that are genetic in nature, and if an employee?s family member has the condition, there is a chance that the employee may have it as well.
    • Any absence from work due to military service covered under the Uniformed Services Employment and Reemployment Rights Act (USERRA) must be counted toward the employee’s 12-month employment period when determining FMLA eligibility.

2. ? ?Military Caregiver Leave Expanded
Previously, the FMLA, via the National Defense Authorization Act (NDAA) of 2010, provided that employees who were caregivers caring for service members currently serving could take leave to care for that service member.? The new rule expands this coverage to include not just current service members, but veterans who are undergoing medical treatment, recuperation or therapy.? The rule also expands coverage to include service members? pre-existing conditions, stating that the treatment must be for a serious injury or illness incurred or aggravated in the line of duty that manifested before or after the veteran left active duty.? ?A dishonorable discharge disqualifies the veteran from being covered.

3. ? ?Qualifying Exigency Leave Expanded
Formerly, employees were allowed to take up to 12 weeks of FMLA leave for ?qualifying exigencies? arising because the employee?s family member in the National Guard or Reserves had been notified of a call or order to active duty. The leave was designed to help the military family by giving leave to the family member so the family could prepare for deployment on short notice.? The new rule expands that leave entitlement to employees whose spouse, son, daughter, or parent serves in the regular Armed Forces, not just the National Guard or Reserves.? In addition, the service member, whether in the regular Armed Forces or the Reserve, must be deployed to a foreign country.? Finally, the rule expands exigency leave to spend time with a service member on Rest and Recuperation from five to fifteen days.

4.???? New Rules = New Policies
What?s an employer to do when facing these new rules and clarifications? Make sure your policies and procedures reflect these new rules by revising existing policies and, if necessary, drafting new ones.? Failure to do so can result in serious liability for the employer.

5.???? New Rules = New Forms and a New Poster
Of course, because of these changes, there are now also new forms.? Employers can either use the forms that are linked below, or incorporate their changes into their existing forms.? In addition, the Department of Labor (?DOL?) has created a new poster that employers must post in a conspicuous area in your workplace.

Links to 2013 FMLA poster: http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf

Links to 2013 FMLA forms:
Notice of Eligibility and Rights & Responsibilities
http://www.dol.gov/whd/forms/WH-381.pdf

Certification of Qualifying Exigency for Military Family Leave
http://www.dol.gov/whd/forms/WH-384.pdf

Certification for Serious Injury or Illness of a Current Servicemember for Military Family Leave
http://www.dol.gov/whd/forms/WH-384.pdf

Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave
http://www.dol.gov/whd/forms/wh385V.pdf

SMART TIP: Don?t reinvent the wheel. Using the forms that the DOL provides is a smart and effective way to ensure that the company is compliant with the FMLA while saving valuable company resources better spent elsewhere.

 

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