Employers routinely are asked to consider requests by employees to take leave pursuant to the Family and Medical Leave Act of 1993 (FMLA). Determining whether an employee is eligible for such leave is usually straightforward: (1) the employee must have been employed for at least a total of 12 months before the leave begins; (2) the employee must have worked at least 1,250 hours in the 12 months immediately preceding the leave; and, (3) the employee must work at a site where the employer has 50 or more employees within a 75-mile radius. Beyond that initial determination, however, employers must also figure out whether the asserted basis for leave qualifies, keep track of such leave, and know what to do when the employee is ready to resume his or her position. Key changes to the FMLA took effect on March 8, 2013 and will affect how retailers and other businesses handle FMLA leave in these respects.
Military Family Leave
The most significant changes to the FMLA impact qualifying exigency and military caregiver leave. For example, an eligible employee previously was entitled to take FMLA leave for “qualifying exigencies” arising when the employee’s spouse, son, daughter or parent (the “covered military member”) is on active duty or has been notified of an impending call or order to active duty in support of a contingency operation. The FMLA now extends coverage beyond just “covered military members” to “military members,” which includes both members of the National Guard and Reserves and the Regular Armed Forces. “Active duty” is now “covered active duty” and requires deployment to a foreign country in order for family members to qualify for exigency leave. In addition, the FMLA now includes a new qualifying exigency leave category for parental leave – leave for an employee to care for a military member’s parent who is incapable of self-care. The changes also extend the amount of time an employee can take during a military family member’s “rest and recuperation” period from 5 to 15 days.
The changes further expand military caregiver leave so it can be taken to care for veterans discharged within the past five years and also to allow caregiver leave to be taken for a pre-existing injury or illness that was aggravated in the line of duty. Moreover, the recent revisions broaden the list of required information for certification of a qualifying exigency and the documentation related to military caregiver leave. They also amend employee eligibility so that all absences from work protected by the Uniformed Services Employment and Reemployment Rights Act count toward hours of service. All of these changes create potential traps for unwary employers who receive a request for military family leave.
Beyond military family leave, the recent revisions also clarified certain aspects of FMLA that apply to most employers. For example, with respect to leave of varying increments, or intermittent leave, the revisions clarify that employers must track such leave using the smallest increment of time used by the employer for other types of leave. The increment of time by which leave is taken can no longer vary within an organization as was previously the case. Likewise, an employer may no longer require an employee to take more time than necessary for intermittent leave.
In addition, the revisions clarify the rule that previously allowed employers to delay an employee’s reinstatement from FMLA when it was physically impossible for the employee to return to work in the middle of his or her shift. Instead, the revisions provide that the physical impossibility provision may be applied only in the most limited circumstances.
Finally, the recent revisions also update an employer’s recordkeeping requirements so that an employer must now comply with the requirements set forth in the Genetic Information Non-Discrimination Act.
If all of this seems like a lot to digest, never fear. A new poster available on the Department of Labor’s Wage and Hour Division web page provides a good overview of an employer’s obligations. In fact, employers are now required to display the poster in their workplace. Employers also should review and update their existing FMLA policies as necessary to make sure references to military family leave reflect the recent changes.