The Department of Labor’s Wage and Hour Division is proposing changes to the regulations that govern the Family and Medical Leave Act (the “FMLA” or the “Act”). The proposed changes include provisions relating to an employer’s ability to opt to use different increments of FMLA under certain circumstances and clarify an employer’s responsibility to reinstate an employee after FMLA leave in situations where it may be impossible, as opposed to inconvenient, to reinstate an employee mid-shift. The changes would also remove optional-use forms and notices from the FMLA. Finally, the proposed changes reflect new statutory amendments to the FMLA contained in the National Defense Authorization Act (the “NDAA”) and in the Airline Flight Crew Technical Corrections Act (the “AFCTCA”). The Division is accepting public comments until April 16, 2012.

“Shortest increment” rule

In its proposed regulations, the Department of Labor rescinds some provisions that previously gave employers more flexibility in their implementation of FMLA leave. The biggest proposed change: Employers would be required to track FMLA leave in the smallest increments their payroll systems use to track work time. The Department seeks to delete a provision added to the FMLA in 2009 that permitted employers to use different increments of FMLA leave under certain circumstances in favor of the more general principle of using the employer’s own shortest increment of recorded time for all FMLA leaves. In short, the new regulation means that if an employer calculates time worked in 6-minute increments for payroll purposes, it must calculate FMLA leave in the same 6-minute increments.

Mid-shift reinstatement and forms     

Another proposed deletion from the 2009 regulations would severely limit the circumstances under which an employer can delay reinstatement of an employee returning to work mid-shift following an FMLA leave, to exclude application of this provision to situations where such mid-shift reinstatement is merely inconvenient as opposed to genuinely impossible. And finally, the new regulations remove various optional-use forms and notices from the FMLA in an effort to accelerate the clearance process when forms must be amended to reflect statutory changes and suggestions from the public 

Changes to the Military Family Leave entitlements under the FMLA

The current FMLA military leave provisions provide two types of leave to eligible employees with covered family members serving in the military: military caregiver leave and qualifying exigency leave. The proposed changes to both types of military leave expand the availability of such leave, and therefore may have significant ramifications for employers.
 

Changes to the FMLA for airline flight crews

The AFCTCA addresses scheduling requirements unique to the airline industry and airline flight crew employees. Under the proposed regulations, an airline flight crew employee will meet the FMLA eligibility requirement if he or she has worked or been paid for not less than 60 percent of the applicable total monthly guarantee (or its equivalent) and has worked or been paid for not less than 504 hours during the previous 12 months, excluding personal commute time or time spent on vacation, medical or sick leave.
   
Implications for employers

Many of these provisions are already enforceable by virtue of the amendments to the NDAA and AFCTCA that took effect on October 29, 2009 and December 21, 2009, respectively. Because these proposed changes expand some existing regulations to areas previously not contemplated by the FMLA while restricting or deleting others, employers must educate themselves in order to appropriately evaluate and respond to requests for FMLA leave.    

Persons interested in submitting comments on the proposed FMLA changes are encouraged to do so at www.regulations.gov.