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Legal Alert: Update Your FMLA Policy and Poster

Spring Cleaning Time Already? Updated Rules Mean It’s Time to Replace Your FMLA Policy and Poster!
 
Although Congress amended the Family and Medical Leave Act (“FMLA”) back in 2009, the Department of Labor (“DOL”) did not publish final rules (the “Rules”) giving employers guidance on how to implement the changes until now.  Effective March 8, 2013, FMLA-eligible employers (those with 50 or more employees) must comply with these Rules.  Here is a summary of the biggest changes most relevant to your workforce:
 
Military Leave Changes

  1. Expanded Definition of Active Duty.  Now termed Covered Active Duty, the definition is expanded to include members of the regular armed forces and reserve members ordered to active duty who are deployed to a foreign country.
  2. Increased Number of Days Available for R&R Leave.  The maximum leave available to bond with a military member on rest and recuperation leave is increased from 5 to 15 days.
  3. Expanded Definition of Serious Injury or Illness.  The FMLA provides up to 26 weeks of leave for an eligible family member to care for a covered servicemember with a serious injury or illness.  The definition of serious injury or illness is expanded to include preexisting injuries that were aggravated in the line of duty causing an increase in severity.
  4. Expanded Coverage for Veterans.  The definition of veteran has been added and includes servicemembers who are discharged or released within 5 years of the date an eligible employee takes leave to care for the veteran.  The definition of “serious injury or illness” for veterans also differs from the definition used for covered service members, and requires the veteran meet one of four alternative thresholds.

Increments of Intermittent Leave Clarification
Most employers are familiar with the mechanics of tracking intermittent leave.  The general rule requires an employer to use the smallest increment of time that it uses for tracking other forms of leave, and the increment must be one-hour units or smaller.  The Rules didn’t change how employers must calculate intermittent leave, but simply clarifies (or emphasizes) that (a) except for limited circumstances, the employee cannot be required to take more leave than he or she actually used, and (b) the time the employee actually works cannot be counted toward FMLA leave.
 
FMLA Recordkeeping Requirements Regarding GINA
In 2008, Congress passed the Genetic Information Nondiscrimination Act (“GINA”), which prohibits genetic information discrimination in employment.  In relation to FMLA, the risk of violating GINA emerges when employees provide medical information in the FMLA certification process.  Although GINA allows genetic information to be disclosed if it is consistent with the requirements of FMLA, if that happens, the employer is required to maintain those records in accordance with GINA.  Generally, this means that any record containing genetic information (remember, genetic information includes family medical history) must be maintained in a file separate from an employee’s personnel file and treated as a confidential medical record. The Rules add a sentence to the FMLA recordkeeping section that reminds employers of this obligation.
  
Guidance on the Application of FMLA to Adult Children
The DOL also recently published guidance on the application of FMLA to adult children.  FMLA entitles an eligible employee to take leave to care for a son or daughter with a serious health condition.  The term “son or daughter” means a person’s child (no biological relationship necessary) who is either (a) under the age of 18, or (b) 18 years or older and incapable of self-care because of a mental or physical disability.  The guidance issued by the DOL on January 14, 2013 clarifies that a parent will be entitled to leave for care of an adult child if that child (1) has a disability as defined by the ADA, (2) is incapable of self-care due to that disability, (3) has a serious health condition, and (4) is in need of care due to that serious health condition.
 
FMLA Forms
The model forms employers can use for documenting FMLA leave have been removed from the appendix of the Rules.  The DOL removed the forms from the Rules so that it could make minor changes to them without having to engage the administrative rulemaking process (so be on the lookout for these minor changes in the future).  The forms, however, are still (and will remain) available on the DOL website.  

 
FMLA Poster
The mandatory FMLA poster has been updated to include the changes implemented in the Rules. A copy of the new poster is available.  Please follow the provided link - http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf.   Make sure to have this revised poster displayed by March 8, 2013.
 
How Do I Obtain An Updated FMLA Policy?
If you are a Rhoades McKee client and have not updated your FMLA policy within the last year, please contact us for your free updated FMLA policy.
 
For more information on the FMLA final rules or other workforce compliance issues, contact one of the attorneys in Rhoades McKee’s Labor and Employment Practice Group.