The DOL Playing Catch-Up: Additional Proposed Amendments to FMLA Regulations

In the ever confusing world of Family and Medical Leave Act (FMLA) administration, we know that "more changes" is the last thing employers want to hear (unless they benefit employers, which is rare). The U.S. Department of Labor (DOL), however, is finally catching up to some of the statutory changes made in 2009 – changes which many employers have already attempted to implement without any guiding regulations or updated forms from the DOL. These proposed amendments to the regulations are "hot off the press" – in fact, at the time of this publication, they are not technically "off the press" at all because they have not yet been published in the Federal Register. We will provide additional updates once we have more thoroughly reviewed the 213 pages of the Notice of Proposed Rulemaking, or NPRM. In the meantime, we wanted to give you some sense of the changes potentially coming. Additional information can be located on the DOL's website. The DOL will accept comments on the changes for a 60 day period after the NPRM is published.

On Jan. 30, 2012, the DOL announced that it intends to publish an NPRM to address several statutory amendments to the FMLA made in 2009. The amendments center primarily around the changes enacted in October 2009 to the military family leave provisions and the special eligibility provision enacted in December 2009 for airline flight crew employees. The proposed amendments, however, also include some changes that are unrelated to the 2009 statutory amendments.

Two expansions of military family leave cover the large bulk of the proposed regulations. First, the proposed amendments will modify the regulations related to "qualifying exigency leaves" under the FMLA to cover all armed services members, not just the Reserves and to cover calls to active duty in a foreign country, rather than only "contingency operations." Second, the definition of a covered service member for the purposes of "military caregiver leave" will be expanded to include certain veterans, not just current members of the armed forces. (Interestingly, although this statutory change was made in 2009, the DOL takes the position in the NPRM that it never went into effect and that employers who have provided or are providing such leave cannot currently count it as FMLA leave. If you have an employee that is coming close to exhausting FMLA leave for this reason, contact your employment lawyer.) The proposed regulations also contain alternative definitions of a "serious illness or injury" as it applies to veterans. In addition, the DOL proposes modifications to the certification forms for military family leave to account for these changes.

The other large portion of the changes involve the eligibility of airline flight crew to take FMLA leave. Since 2009, the airline industry has been required to calculate the hours necessary for airline flight crew members to be eligible for FMLA leave in a manner that is distinctly different from the 1,250 hours requirement applicable to other covered employers. The proposed amendments modify the regulations to address this difference and some issues related to intermittent leave that are specific to the airline industry.

As mentioned above, the proposed amendments also contain other changes unrelated to the statutory changes in 2009. It is too early to comment in detail on those changes. Some of the changes relate to the various reasons for which an employee may be entitled to qualifying exigency leave and the method of calculating intermittent leave (do not get your hopes up, they do not appear, at first blush, to be helpful to employers).

Again, look for further information about the proposed amendments to the FMLA regulations in future articles. Once the proposed amendments are published, written comments can be made at www.regulations.gov. In the meantime, if you have questions about the proposed amendments or any other FMLA issue, contact Tami A. Earnhart at (317) 236-2235 or tami.earnhart@icemiller.com or William Barath at (614) 462-2311 or william.barath@icemiller.com or any other member of Ice Miller's Labor and Employment Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.