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New Family and Medical Leave Act ("FMLA") Poster, Forms, and Expanded Leave Take Effect March 8, 2013

March 7, 2013

Overview

The Department of Labor ("DOL") published a final rule that makes significant changes to the FMLA effective on March 8, 2013. Employers covered by the FMLA include private-sector employers with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer. The final rule will (1) require employers to post a new FMLA poster, (2) remove the optional use forms from the appendices to the regulations, and (3) expand protections for flight crews and families of military veterans.

New FMLA Poster

The new FMLA poster, which will replace the current version, summarizes the major provisions of the FMLA. The poster must be displayed on or before March 8, 2013, in a conspicuous place in view of employees and applicants for employment. The new poster is available here.

New Location for FMLA Forms and Important GINA Safe Harbor Language

The optional use FMLA forms will no longer be available in the regulations' appendices. This change was made to allow the DOL to make "nonsubstantive" changes to the forms in an online-only format. While employers should update their current forms now by clicking here, employers should make it a habit to go to the DOL forms website every time they use an FMLA form to best ensure their form is up-to-date.

In addition, when employers use an FMLA form, they should also include a cover letter to the form with the Genetic Information Nondiscrimination Act ("GINA") safe harbor language. Currently, the safe harbor language is not contained in the FMLA forms and must be separately included, as provided below:

The Genetic Information Nondiscrimination Act of 2008 ("GINA") prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. "Genetic Information" as defined by GINA includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

Expansions to the FMLA for Flight Crews and Families of Military Veterans

The FMLA was amended to acknowledge the unique work schedule of airline flight crews. Flight crew employees will meet the FMLA hours-of-service requirement if they have worked or been paid for not less than 60 percent of the applicable total monthly guarantee and have worked or been paid for not less than 504 hours during the previous 12-month period. This is in comparison to the general FMLA eligibility requirements that require an employee to have completed 1,250 hours of service for a covered employer during the previous 12 months. Eligible flight crew employees will be entitled to 72 days of leave for any FMLA-qualifying reason and 156 days of leave for military caregiver leave.

The final rule also expands the availability of military caregiver leave and qualifying exigency leave. Military caregiver leave will be expanded to include eligible employees whose family members are recent veterans with serious injuries or illnesses. The definition of serious injuries or illnesses will include current servicemembers' preexisting injuries or illnesses that were aggravated in the line of duty. In addition, qualifying exigency leave will be extended to include family members of the Regular Armed Forces members and adds the requirement that all military members be deployed to a foreign country in order to be on "covered active duty" under the FMLA. The final rule also increases the amount of time an employee may take for qualifying exigency leave related to the military member's Rest and Recuperation leave from 5 days to up to 15 days. To see additional changes and a side-by-side comparison of the current and final regulations, click here.

What Employers Should Do Now

On March 8, 2013, employers should post the new FMLA poster, as well as update their policies, leave letters, and handbooks to incorporate these changes. Leave laws are complicated and this is not an exhaustive analysis of the topic.

Contact us and we will be happy to guide you through these issues and make the necessary updates.

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