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January 15, 2013
Final FMLA regulations coming: Get ready
By Susan Schoenfeld, JD, Senior Legal Editor

According to DOL's recently revised regulatory agenda, the new, final FMLA regulations regarding leave for qualifying exigencies, servicemember caregiver leave and airline/flight crews are due to be issued in March 2013. Employers need to be ready for these changes in order to ensure compliant leave management and avoid running afoul of the Family and Medical Leave Act (FMLA).

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sschoenfeldFMLA regs: What is changing?

The new rule is slated to extend military caregiver leave to eligible employees whose family members are recent veterans with serious injuries or illnesses, and would expand the definition of a serious injury or illness to include serious injuries or illnesses that result from pre-existing conditions.

The new rule is also expected to expand qualifying exigency leave to eligible employees with family members serving in the Regular Armed Forces, and add a requirement that for all qualifying exigency leave the military member must be deployed to a foreign country.

Finally, it is expected that the proposed rule will eliminate the physical impossibility exception, limit an employer’s ability to require an employee to take leave in specified increments, and remove the FMLA forms from the regulations, posting them instead to a Department of Labor (DOL)-controlled website, allowing the DOL to change the forms more rapidly and (arguably) with less notice.

In the proposed rule, the DOL says that it will make “minor changes” to the various FMLA forms and notice materials. It is anticipated that the changes will include the FMLA poster (WHD publication 1420), the Notice of Eligibility and Rights and Responsibilities (Form WHD-381), the Certification for Qualifying Exigency Leave for Military Family Leave (Form WHD-384), and Certification for Serious Injury or Illness of a Covered Servicemember for Military Family Leave (Form WHD-385).

In addition, DOL has said that it intends to develop a new form for the certification for the serious injury or illness of a covered veteran.

For more information on the anticipated changes to the FMLA regulations, see our earlier white paper, Proposed FMLA Rules: Changes Coming.

What should employers do now to prepare?

Good question. In order to get ready for the final rule, employers should take steps now to:

Review policies, notices, and forms, and flag any that will be impacted by impending changes to the regulations. Specifically, employers should identify and set aside policies relating to FMLA leave, leave for servicemember caregiver leave, medical certification for FMLA leave and other FMLA certification and notice forms so that they may be changed and reissued once the FMLA’s final rule is released.

Notify and train. In organizations where managers serve as the front line in managing leave requests and FMLA issues, the employer should prepare to train managers on the upcoming regulatory changes. Experts anticipate that the final rule will be substantially similar, if not identical to the final rule. So, circulating a quick “cheat sheet” on the upcoming changes might help prepare managers (and HR staff) for what is to come.

Stay informed. Finally, employers need to keep an ear to the ground (and an eye on their email) to monitor news for the announcement of the final regulations. The current regulatory agenda has the final regulations due to be released in March 2013. However, it is important to keep in mind that the DOL has delayed releases in the past or (very occasionally) surprised employers with an earlier-than-expected release of final regulations.

Either way, employers can keep track of the regulations by:

FMLA Resources

Susan Schoenfeld, J.D., is a Senior Legal Editor for BLR’s human resources and employment law publications. Ms. Schoenfeld has practiced in the area of employment litigation and counseling, covering topics such as disability discrimination, wrongful discharge, sexual harassment, and general employment discrimination. She has litigated numerous cases before the U.S. Court of Appeals, state court, and at the U.S. Department of Labor. In addition to litigating employment cases in state and federal court, she provided training and counseling to corporate clients regarding employment-related issues. Prior to entering private practice, Ms. Schoenfeld was an attorney with the Civil Rights Division at the U.S. Department of Labor in Washington, D.C., where she advised federal agencies, drafted regulations, conducted inspector training courses, and litigated cases for the Office of Federal Contract Compliance Programs, the Directorate of Civil Rights, and the Mine Safety and Health Administration. Ms. Schoenfeld received her undergraduate degree, cum laude, with honors, from Union College, and her law degree from the National Law Center at George Washington University.

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