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New FMLA Regulations Published by the Department of Labor
On February 6, the Department of Labor published its final rule that amends the Family Medical Leave Act (FMLA) regulations.The FMLA, among other things, presently provides 26 weeks of leave to a “spouse, son, daughter, parent, or next of kin” to take care of a “Covered Service Member,” or up to 12 weeks of leave due to a “qualifying exigency” arising out of the fact that an employee’s spouse, child or parent has been called up to active duty.
See http://www.rbslaw.com/seminar_files/FMLA_Update_2009.pdf
The new rule, primarily, does the following:
- Adds a new category of exigency leave for parental care (i.e., care for a military member’s parent when the parent is incapable of self-care);
- Expands from five to fifteen days the amount of rest and recuperation FMLA leave an eligible employee would be able to take to spend with a covered service person;
- Allows more airline employees to take FMLA leave; and
- Clarifies rules for calculating intermittent and/or reduced schedule leave.
29 CFR 825.126(b)(8) provides that an employee who is a spouse, parent, son or daughter of a military member may take exigency leave to 1) arrange for alternative care for a parent of the military member, if the parent is incapable of self-care; 2) provide care for the parent on an immediate-need basis as opposed to a regular basis while the military member is on active duty or call to covered duty status; 3) admit or transfer the parent to a care facility when the transfer was necessary due to the military member’s call up; and 4) attend meetings with the staff of the facility that is caring for the parent.
Rest and Recuperation
29 CFR 825.126(b)(7) increases the maximum number of days (from five to fifteen) that an employee can take to “bond” with a service member who is on rest and recuperation leave. The amount of time that an employee gets must correspond with the amount of leave that the military member receives.
Airline Entitlement
In order to be entitled to FMLA leave an employee must have worked at least 1,250 hours in the preceding 12 month period. Some courts had found that certain airline employees were not eligible because it only counted the hours employees spent actually working on flights and not the time spent on the job between flights. Generally, the amendments to the regulations provide that non-flying hours are counted towards the 1,250 hour minimum.
Intermittent Leave Clarification
29 CFR 825.205 simply clarified that an employee’s entitlement to FMLA leave should not be reduced beyond the actual leave taken, and added language which states 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. Therefore, if your company already complies with the shortest increment rule, no changes are necessary. The new rule also emphasizes that if an employee is working, the time cannot count against him or her for FMLA entitlement, regardless of what the shortest increment is.
Should you have any questions or concerns regarding the aforementioned changes, please do not hesitate to contact Lynn Schonberg or Ryan Neumeyer at 216-447-1551.