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Proposed Revisions to FMLA Regulations Contain Changes to the Increments of Time Used For Intermittent Leave

Volume 11, Issue 2
April 11, 2012

The United States Department of Labor (DOL) has issued proposed changes to the Family Medical Leave Act (FMLA) regulations primarily to implement and interpret amendments to the FMLA made by the National Defense Authorization Act for Fiscal Year 2010 (NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA).  The NDAA extended FMLA qualifying exigency leave entitlement to eligible family members of the regular Armed Forces, broadened FMLA military caregiver leave to include care provided to certain veterans discharged within a five-year period prior to the date an employee first seeks to take military caregiver leave, and expanded the scope of the serious injuries and illnesses justifying military caregiver leave to include conditions that do not arise until after the service member has left the military, as well as conditions existing before the service member's active duty service that are aggravated by such service. AFCTCA established a special FMLA hours-of-service eligibility requirement for airline flight crew members, including airline pilots and flight attendants, which is met if crew members have worked or been paid for not less than 60 percent of the applicable total monthly guarantee and have worked or been paid for not less than 504 hours during the previous 12 months.  While the proposed changes to military caregiver leave, qualifying exigency leave, and those related to airline flight crew members were expected and substantially reflect the statutory changes required by the NDAA and AFCTCA, the DOL is also proposing to change the calculation of intermittent leave under 29 C.F.R. § 825.205, which is unexpected and not required under either of those two new laws.  Currently, under 29 C.F.R. § 825.205(a), an employer that requires non-FMLA leave to be used in different increments depending on the specific time of day or shift can also require FMLA intermittent or reduced schedule leave to be used in same increments, so long as the particular time increment does not exceed one hour and is the shortest one utilized for the specific time of day or shift.  For example, an employer that has a sick leave policy designed to discourage tardy arrivals by allowing sick leave to be used in increments of thirty minutes, except for sick leave taken during the first two hours of a shift where sick leave must be used increments of one hour, may require FMLA intermittent or reduced schedule leave time taken during any part of the first two hours of a shift to also be used in the same one hour increments given the corresponding timing.  This particular provision of the FMLA regulations was only recently added in November 2008 based on support by the Society of Human Resource Management (SHRM) and other employer associations.  If the DOL's change is unopposed, it will remove another tool employers have to control employee tardiness and leave abuse.

Interested parties can submit written comments about the DOL's proposed FMLA regulations identified by Regulatory Information Number (RIN) 1235-AA03 utilizing the Federal eRulemaking Portal, http://www.regulations.gov., on or before April 16, 2012 at www.regulations.gov.

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