The NPRM proposes adding a clarifying statement that an employer may not require an employee to take more leave than is necessary to address the circumstances that precipitated the need for leave, subject to the physical impossibility rule as well as the situation where an employee elects to substitute paid leave for FMLA and must use a larger amount of leave in order to satisfy the employer's paid leave policy.

The U.S. Department of Labor (DOL) recently issued a Notice of Proposed Rulemaking (NPRM) that proposes changes to the Family and Medical Leave Act (FMLA) regulations related to military family leave and the hours of service eligibility criteria for airline flight crew attendants. These proposed changes seek to implement and interpret statutory amendments to the FMLA pursuant to the National Defense Authorization Act for Fiscal Year 2010 (FY 2010 NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA). Public comment on these proposed changes is due on or before April 16, 2012.

Employers may recall that the FY 2010 NDAA extended qualifying exigency leave under the FMLA to employees who are covered family members of the Regular Armed Forces and expanded the use of military caregiver leave to employees who are covered family members of recent veterans. AFCTCA established a special hours of service eligibility requirement for airline flight crew members. The NPRM proposes to update the regulations to correspond to the FMLA amendments.

In addition, employers may be surprised to learn that in the NPRM, the DOL proposes a few unrelated changes, including the manner in which an employer calculates FMLA usage by all employees.

Military Qualifying Exigency Leave

In 2008, the FMLA was amended to permit eligible employees to take FMLA leave because of any qualifying exigency that arises out of the active duty or call to active duty of a spouse, child or parent who is a member of the National Guard or Reserves components.

The FY 2010 NDAA expanded qualifying exigency leave so that eligible employees with a spouse, child or parent in all military components, including the Regular Armed Forces, would be eligible to take FMLA leave under qualifying circumstances. FY 2010 NDAA also added a new condition that the military member's deployment must be to a foreign country in order for an eligible employee to be able to take qualifying exigency leave. These changes went into effect immediately upon the enactment of the FY 2010 NDAA, despite the fact that the regulations did not reflect these changes.

The NPRM proposes corresponding changes to the regulations to reflect the FY 2010 NDAA. In addition, with respect to the requirement that the deployment must be to a foreign country, the NPRM proposes that "foreign country" include deployment in international waters.

Further, the NPRM clarifies several categories of covered qualifying exigencies.

Current FMLA regulations list eight categories of reasons for which an eligible employee may take a qualifying exigency leave: short-notice deployment, military events and related activities, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities and additional activities.

The NPRM proposes to clarify that for exigency leave related to childcare and school activities, the child for whom childcare leave is sought need not be a child of the employee requesting leave. Thus, a parent of a military member could take a protected leave to care for the child of the military member. The NPRM proposes to expand the maximum duration of the rest and recuperation leave from the current five days to 15 days. The NPRM further proposes to add attending funeral services as an example of a post-deployment activity for which an eligible employee may take qualifying exigency leave.

Military Caregiver Leave

The 2008 FMLA amendments now enable an eligible employee who is the spouse, child, parent or next of kin of a covered servicemember to take up to 26 workweeks of FMLA leave during a single 12-month period to care for a covered servicemember with a serious injury or illness.

The FY 2010 NDAA expanded the definition of covered servicemember to include veterans who were active members of the military within the past five years. It also changed the definition of serious injury or illness, for both current members of the Armed Forces as well as certain veterans, to include preexisting conditions that were aggravated by service in the military. All of these changes went into effect upon the enactment of the FY 2010 NDAA, with the exception of the extension of military caregiver leave to family members of veterans with serious injuries or illnesses, pending the DOL's defining through the NPRM what constitutes a serious injury or illness for a veteran.

The NPRM proposes that the following qualify as serious injuries or illnesses of a veteran:

1. a serious injury or illness of a current servicemember that continues after the servicemember becomes a veteran;
2. a physical or mental condition for which the covered veteran has received a Department of Veterans Affairs (VA) Service Related Disability Rating (VASRD) of 50 percent or higher; and
3. a physical or mental condition that (a) substantially impairs the veteran's ability to secure or follow a substantially gainful occupation by reason of a service-connected disability or (b) would substantially impair said ability, absent treatment.

The NPRM also seeks public comment on whether enrollment in the VA's Program of Comprehensive Assistance for Family Caregivers should alone meet the requirements of having a serious injury or illness.

It is important to note that the NPRM proposes that a healthcare provider who is not affiliated with the military would be permitted to complete the medical certification related to an employee's request to care for a covered servicemember. Current FMLA regulations limit the type of healthcare providers who may complete a medical certification under these circumstances to those affiliated with the military.

Expanded Hours of Service Definition for Airline Flight Crew Members

Currently, to be eligible for FMLA leave, an employee must be employed by the employer for a total of at least 12 months; must be employed for at least 1,250 hours of service in the 12-month period immediately preceding the commencement of the leave; and must work at a worksite where 50 or more employees work within 75 miles.

The AFCTCA altered the hours of service eligibility requirements for airline flight crew employees to take into account their unconventional work schedules. Under the AFCTCA, the hours of service criteria are met if, during the 12-month period, the airline flight crew employee has worked or has been paid for not less than 60 percent of the applicable monthly guarantee and has worked or been paid for not less than 504 hours (not including personal commute time or time spent on vacation leave or sick or medical leave).

The NPRM proposes to interpret the 504 hours requirement to constitute 504 hours of duty time, which includes flight or block time as defined by the Federal Aviation Administration and any additional time before and after the flight as determined by employer policy or applicable collective bargaining agreement. The NPRM also proposes the minimum monthly guarantee to be determined by employer policy or applicable collective bargaining agreement and would depend on whether the employee is on reserve status.

Additional Proposed Changes to the FMLA Regulations

In addition to the much-anticipated changes for military family leave and the airline flight crew member eligibility requirement, several other unexpected proposals appear in the NPRM.

First, the NPRM proposed changes to the manner in which employers calculate increments of leave. In 2009, the DOL amended the FMLA regulations to provide:

"When an employee takes FMLA leave on an intermittent or reduced leave schedule basis, the employer must account for the leave using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave provided that it is not greater than one hour and provided further that an employee’s FMLA leave entitlement may not be reduced by more than the amount of leave actually taken." 29 C.F.R. 825.205(a)(1).

The NPRM proposes adding a clarifying statement that an employer may not require an employee to take more leave than is necessary to address the circumstances that precipitated the need for leave, subject to the physical impossibility rule as well as the situation where an employee elects to substitute paid leave for FMLA and must use a larger amount of leave in order to satisfy the employer's paid leave policy. In such instance, the employer may either require the employee to use more FMLA leave than is necessary in order to substitute paid leave, or the employee may elect to take unpaid FMLA leave in the smallest increment of leave used by the employer.

Additionally, the NPRM proposes changes to the physical impossibility provisions of the FMLA regulations, which allow an employer to delay an employee's reinstatement by providing a larger period of leave where it is physically impossible for the employee to return to the job in the middle of the shift. The DOL has been concerned with employer interpretation of this provision as requiring only mere "inconvenience." Therefore, the NPRM clarifies that this provision applies in "only the most limited circumstances and only where it is, in fact, physically impossible to allow the employee to leave his or her shift early or to restore the employee to his or her same position or to an equivalent position at the time the employee no longer needs FMLA leave."

Finally, the DOL proposes a standard recordkeeping provision that would reiterate the confidentiality requirements of the Genetic Information Nondiscrimination Act of 2008 (GINA).

Changes to Model FMLA Forms

Once the NPRM review period has expired and the revised FMLA regulations go into effect, it can be anticipated that the DOL's model FMLA certification and other forms will be updated with corresponding changes to the eligibility criteria for airline flight crew employees; the definition of a covered servicemember; the definition of a serious illness or injury for a veteran; and the requirement that qualifying exigency leave arises from a foreign deployment. The DOL has also proposed that it may prepare a separate model form related only to caregiver leave for veterans.

Interestingly, the NPRM proposes to remove the model forms from the final regulations' appendices, but to continue to make them available on the Wage and Hour Division (WHD) website. The DOL has suggested that the purpose of this change will be to enable the DOL to more expeditiously amend its forms in response to statutory and other changes without creating the confusion that has typically resulted from having updated forms on the WHD website, but not in the final regulations. The forms that the DOL proposes to eliminate from the final regulations' appendices are:

• WH-380-E Certification of Health Care Provider for Employee's Serious Health Condition;
• WH-380-F Certification of Health Care Provider for Family Member's Serious Health Condition;
• WH-381 Notice of Eligibility and Rights & Responsibilities;
• WH-382 Designation Notice;
• WH-384 Certification of Qualifying Exigency for Military Family Leave; and
• WH-385 Certification for Serious Injury or Illness of Covered Servicemember – for Military Family Leave.

In the meantime, employers can note that the model forms on the WHD website have been reissued with an extended expiration date of February 28, 2015. It is reasonable to suppose that employers may continue to use these forms, pending further updates by the DOL. Of course, to the extent an employer receives a request for family military leave or leave by an airline flight crew employee, such requests should be evaluated under the now-in-effect statutory requirements, notwithstanding any inconsistencies in the model forms.

Update FMLA Certification Requests to Include GINA Safe Harbor Disclaimer

However, on a related issue, to ensure compliance with the Genetic Nondiscrimination Act of 2008 (GINA), employers are required to provide employees with the GINA "safe harbor" language in conjunction with any request for health-related information to support an employee’s request for FMLA leave for medical reasons.

The EEOC's regulations implementing GINA provide that when an employer makes a request for health-related information, it should warn the employee and/or healthcare provider from whom it requested the information not to provide genetic information. If employers give this warning, any resulting acquisition of genetic information is considered inadvertent and is not a violation of GINA. The safe harbor language recommended by the EEOC is as follows:

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.

The current FMLA certification forms do not contain this GINA safe harbor language. Therefore, employers should immediately begin providing this language in conjunction with any FMLA medical certification forms or other similar employer request for health-related information to support an employee's FMLA leave for medical reasons.

For Further Information

If you have questions regarding the NPRM or FMLA and leaves of absence policies, please contact any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.