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Department of Labor Implements Final Rule Expanding Family Medical Leave Act (FMLA) Protection for Military Families and Airline Flight Crews

Detroit, Michigan – March 1, 2013 –The Department of Labor (DOL) has issued final rules implementing amendments to the Family Medical Leave Act (FMLA). The new rules, including a requirement that all FMLA-covered employers post an updated FMLA poster in the workplace to notify employees of FMLA changes, take effect March 8, 2013. Terry Bonnette of Detroit-based employment law firm Nemeth Burwell, P.C. summarized the changes of the FMLA.

“The changes to the FMLA impact military caregiver leave, military exigency leave, airline flight crews and other miscellaneous items such as new posting requirements of the FMLA,” said Bonnette. “Many of the changes are related to broadening the scope of the duration of certain leaves, individuals who are eligible for certain types of FMLA leave, as well as some clarifying edits of the existing rules.”

Military Caregiver Leave and Military Exigency Leave:

Prior to the March 2013 changes, military caregiver leave was only available to employees caring for family members who were current service members with a serious injury or illness incurred in the line of duty. Under the new rule, eligible employees may use FMLA leave to care for veterans who have been discharged within the previous five years and who have a serious injury or illness incurred or aggravated in the line of duty where that injury or illness manifested before or after the veteran left active duty.

In addition, the new rule expands the definition of “serious injury or illness” for service members to include injuries or illnesses that existed prior to the service member’s active duty that were thereafter aggravated in the line of duty. Under the old FMLA rules, qualifying exigency leave was limited to Reserve or National Guard members. Exigency leave is now available to eligible employees with a spouse, son, daughter or parent in the Regular Armed Forces on covered active duty to a foreign country.

Finally, the DOL has expanded the amount of leave available to an eligible employee to spend time with his or her military family member on rest and recuperation leave. Under the previous rules, an employee was given five days. Under the new rules, an eligible employee may take a maximum of fifteen days.

Airline Flight Crew Amendments:

The final ruling by the DOL also established special eligibility requirements specifically for airline flight crew members and flight attendants to reflect the unique scheduling requirements of the airline industry. Airline flight crew employees are eligible for FMLA-protected leave if, during the 12 months before their leave, they worked or had been paid for at least 60 percent of their “applicable monthly guarantee” and had worked or been paid for at least 504 hours.

If eligible for FMLA leave, the flight crew member is eligible for 72 days of traditional FMLA leave and 156 days of military caregiver leave during any 12-month period. Additional rulings regarding airline flight crews were also introduced, including how the use of intermittent leave will be calculated.

Other Changes, Including New Posting Requirement:

The Final Rule also made “clarifying edits” to the rules describing the calculation of intermittent or reduced schedule FMLA leave. Although no substantive changes were made, the edits are intended to clarify the “varying increments” rule, which allows employers to utilize different increments of leave at different times of the day or shift, provided the employer tracks FMLA leave using the smallest increment used for other forms of leave subject to a one hour maximum. The Final Rule also makes clarifying edits to the provisions concerning the minimum increments rule, which permits employers to track FMLA usage in the minimum increment used to track other forms of leave subject to a one hour maximum.

Finally, all FMLA-covered employers are required to post an updated FMLA poster in the workplace no later than March 8, 2013. The updated poster reflects the changes in the final rule described above. Updated optional forms reflecting the new rules are also available for use by employers.

For updated FMLA forms, please visit the Department of Labor website. To obtain a copy of the new poster, click here.

About Nemeth Burwell, P.C.: Nemeth Burwell specializes in employment litigation, traditional labor law and management consultation for private and public sector employers. It is the largest women-owned law firm in Michigan to exclusively represent management in the prevention, resolution and litigation of labor and employment disputes.
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