On Feb. 6, the U.S. Department of Labor’s Wage and Hour Division (WHD) celebrated the 20th anniversary of the Family and Medical Leave Act (FMLA) by issuing new regulations along with an updated poster and forms. The regulations cover leave related to members or veterans of the military as well as the disclosure of genetic information obtained by employers for FMLA purposes. FMLA covered employers are required to begin using the new forms and poster no later than March 8, 2013. The poster must be displayed in a conspicuous location where employees and applicants can see it, including locations where there are no employees eligible for FMLA.
The regulations expand Qualified Exigency Leave. Qualified Exigency Leave may be used when an eligible employee’s spouse, child or parent is deployed to a foreign country as part of his or her service in the armed forces or National Guard and Reserves. The regulations expand Qualified Exigency Leave by increasing the amount of leave permitted to spend time with a military member when he or she is on “rest and recuperation” leave from five to fifteen days. In addition, the new regulations allow an employee to take leave to care for a military member whose parent is not capable of self-care, provided the need for care is caused by the military member’s deployment.
The regulations also update Military Caregiver Leave. Military Caregiver Leave may be used when employees take leave to care for a spouse, child, parent, or next of kin of a covered servicemember. The regulations expanded Military Caregiver Leave by expanding the definition of “covered servicemember” to include not only current members of the armed forces, National Guard and Reserves, but also veterans. The veteran must have been released from military service within the previous five years, but cannot have been dishonorably discharged. When a covered servicemember is undergoing treatment for a serious medical condition, a spouse, child, parent or next of kin may take FMLA leave to care for that person.
In addition, the regulations also confirm employers’ confidentiality obligations under the Genetic Information Nondiscrimination Act of 2008 (GINA). As a result, employers are permitted to disclose genetic information or family history obtained by the employer so long as it is consistent with the FMLA.
As with all other forms of FMLA leave, there is no requirement that leave under these circumstances be paid, however, employers must generally protect the employee’s job during the leave period. Eligibility for each type of leave requires an employee to have been employed at the same employer for 12 months and have worked at least 1,250 hours for that employer in the immediately preceding 12 months. Employers are advised to consult both state and local FMLA laws that may have more lenient requirements or provide greater leave entitlement to workers.
For more information on the FMLA, visit the Labor & HR Topical Resources section of the AGC website. The primary category is “Leave” and the secondary category is “Family and Medical Leave Act.”