1. HUMAN CAPITAL PRACTICE
ALERT
March 2013 www.willis.com
NEW FMLA POSTER,
FORMS, POLICY
REQUIRED: MARCH 8
The U.S. Department of Labor (DOL) has released the new Federal
Family Medical Leave Act Notice revised 2/5/13. The updates are
effective March 8 and include changes to military family leave,
allowing for greater leeway to attend to personal matters and medical
needs related to service members’ families. Additionally, airline flight
crew employees will have greater access to benefits of the FMLA. The
final regulation also revises a handful of existing regulatory
provisions and removes the model FMLA forms from the appendices
of the regulations. (The final rule implementing the FMLA
amendments were released under the National Defense
Authorization Act of 2010 [NDAA] and the Airline Flight Crew
Technical Corrections Act [AFCTCA].)
Employers are therefore well advised to review and revise written
FMLA policies and/or employee handbooks as necessary to reflect
the expanded categories of FMLA leave. They should also obtain new
FMLA certification forms and post the new FMLA poster, all of
which are available via the DOL’s website.
MILITARY FAMILY LEAVE
The new rules regarding military family leave are not controversial
and effectively carry out the amendments made by the NDAA.
CAREGIVER LEAVE
Caregiver leave can be taken up to five years after the service
member leaves the military and for an injury or illness that resulted
from a condition predating the individual’s active duty but that was
exacerbated by the military service. Prior to the NDAA, caregiver
leave was available only to employees caring for current service
members, not veterans.

2. QUALIFYING EXIGENCY meet the FMLA hours of service eligibility requirement if he or she
has worked or been paid for not less than 60% of the applicable total
monthly guarantee and has worked or been paid for not fewer than
Prior to the NDAA’s enactment, exigency leave
504 hours during the previous 12 months. This calculation does not
only was available to family members of
include personal commute time or time spent on vacation, medical
Reserve and National Guard members, not
or sick leave. The changes will result in more employees who are
regular service members. However, the NDAA
eligible for FMLA leave.
and proposed regulations reverse that
position. FMLA leave is available to family
The final rule also includes listing of all special requirements
members of regular armed service members,
applicable only to airline flight crew employees and their employers
as well as family members of Reserve and
(subpart H), adoption of a uniform entitlement for airline flight crew
National Guard members, as long as they are
employees of 72 days of leave per applicable leave year for one or
being deployed to a foreign country. The final
more FMLA-qualifying reason and 156 days of military caregiver
regulation also added and tweaked current
leave, and imposition of special recordkeeping requirements on
qualifying exigencies:
employers of airline flight crew employees.
n Expands from five to 15 days the amount
OTHER NOTABLE CHANGES
of “Rest and Recuperation” FMLA leave
an eligible employee can take to spend
with a covered family member; and
n Creates a new category for parental care PHYSICAL IMPOSSIBILITY
(caring for the service member’s parent
when the parent is incapable of self-care) Although the DOL appeared poised to make changes to the “physical
impossibility rule,” it simply reminded employers that this rule is to
be applied in only the most limited circumstances, and that the
AIRLINE FLIGHT CREW FMLA employer bears the responsibility to restore the employee to the
LEAVE
same or equivalent position as soon as possible. Notably, the DOL
shared the following in its Fact Sheet 28I:
Enacted in 2009, AFCTCA closed an apparent “In a situation where it is physically impossible for an
loophole in the “hours worked” eligibility employee using intermittent leave or working a
requirements for airline pilots and flight reduced leave schedule to begin or end work mid-way
attendants whose unique schedules often left through a shift, the entire period the employee must be
them short of the hours required to qualify for absent is designated as FMLA-protected leave and
FMLA leave. Under the FMLA, employees counts against the employee’s FMLA entitlement. The
must work at least 1,250 hours in the previous period of the physical impossibility is limited to the
12-month period, which equates to 60% of a period when the employer is unable to permit the
typical 40-hour workweek. employee to work prior to a period of FMLA leave or
return the employee to the same or equivalent position
AFCTCA applies the same concept to airline after a period of FMLA leave due to the physical
flight crews, providing that the hours flight impossibility. This rule applies only to situations where
crew employees work or for which they are it is truly physically impossible to return the employee
paid – not just those hours working in flight – to work after an FMLA-qualifying absence, for
count as hours of service for purposes of example, a railroad conductor whose FMLA leave
FMLA eligibility. Under AFCTCA and the prevents him from boarding the train before it leaves
FMLA regulations, an airline flight crew for its scheduled trip.”
employee (as defined by FAA regulations) will
2 Willis North America • 3/13

3. INCREMENTS OF LEAVE
The DOL maintained a provision that allows employers to use
varying increments of leave at different times of the work day or
shift. It reaffirmed the current rule that employers “must allow
employees to use FMLA leave in the smallest increment of time the
employer allows for the use of other forms of leave, as long as it is no
more than one hour.”
DOL’S MODEL FMLA FORMS
Notably, the WHD removed its model FMLA forms from the
regulations’ appendices. Employers may now find the optional-use
forms on the DOL website. This change was made so that DOL has
the flexibility to change (and, hopefully, improve) the forms as
needed without getting bogged down in the regulatory approval
process. DOL remarked that any future substantive changes to the
forms will remain subject to normal notice and comment
RESOURCES
More information regarding the rule, including a side-by-side
comparison of the new rule with the prior version, frequently asked
questions and a fact sheet, is available on the DOL’s website.
CLARIFICATION
The DOL has released clarification of the definition of “son or
daughter” under Section 101(12) of the FMLA as it applies to an
individual 18 years of age or older and incapable of self-care because
of a mental or physical disability.
3 Willis North America • 3/13

4. KEY CONTACTS
U.S. HUMAN CAPITAL PRACTICE OFFICE LOCATIONS
NEW ENGLAND ATLANTIC Marietta, GA
770 425 6700
Auburn, ME Baltimore, MD
207 783 2211 410 584 7528 Miami, FL
305 421 6208
Bangor, ME Knoxville, TN
207 942 4671 865 588 8101 Mobile, AL
251 544 0212
Boston, MA Memphis, TN
617 437 6900 901 248 3103 Orlando, FL
407 562 2493
Burlington, VT Metro DC
802 264 9536 301 581 4262 Raleigh, NC
704 344 4856
Hartford, CT Nashville, TN
860 756 7365 615 872 3716 Savannah, GA
912 239 9047
Manchester, NH Norfolk, VA
603 627 9583 757 628 2303 Tallahassee, FL
850 385 3636
Portland, ME Reston, VA
207 553 2131 703 435 7078 Tampa, FL
813 490 6808
Shelton, CT Richmond, VA 813 289 7996
203 924 2994 804 527 2343
Vero Beach, FL
NORTHEAST Rockville, MD 772 469 2842
301 692 3025
Buffalo, NY MIDWEST
716 856 1100 SOUTHEAST
Appleton, WI
Morristown, NJ Atlanta, GA 800 236 3311
973 539 1923 404 224 5000
Chicago, IL
Mt. Laurel, NJ Birmingham, AL 312 288 7700
856 914 4600 205 871 3300 312 348 7700
New York, NY Charlotte, NC Cleveland, OH
212 915 8802 704 344 4856 216 861 9100
Norwalk, CT Gainesville, FL Columbus, OH
203 523 0501 352 378 2511 614 326 4722
Radnor, PA Greenville, SC Detroit, MI
610 254 7289 704 344 4856 248 539 6600
Wilmington, DE Jacksonville, FL Grand Rapids, MI
302 397 0171 904 562 5552 616 957 2020
Willis North America • 02/13

5. Milwaukee, WI WESTERN
262 780 3476
Fresno, CA
Minneapolis, MN 559 256 6212
763 302 7131
763 302 7209 Irvine, CA
949 885 1200
Moline, IL
309 764 9666 Las Vegas, NV
602 787 6235
Pittsburgh, PA 602 787 6078
412 645 8506
Los Angeles, CA
Schaumburg, IL 213 607 6300
847 517 3469
Phoenix, AZ
SOUTH CENTRAL 602 787 6235
602 787 6078
Amarillo, TX
806 376 4761 Portland, OR
503 274 6224
Austin, TX
512 651 1660 Rancho/Irvine, CA
562 435 2259
Dallas, TX
972 715 2194 San Diego, CA
972 715 6272 858 678 2000
858 678 2132
Denver, CO
303 765 1564 San Francisco, CA
303 773 1373 415 291 1567
Houston, TX San Jose, CA
713 625 1017 408 436 7000
713 625 1082
Seattle, WA
McAllen, TX 800 456 1415
956 682 9423
Mills, WY The information contained in this publication is
307 266 6568 not intended to represent legal or tax advice and
has been prepared solely for educational
purposes. You may wish to consult your attorney
New Orleans, LA or tax adviser regarding issues raised in this
504 581 6151 publication.
Oklahoma City, OK
405 232 0651
Overland Park, KS
913 339 0800
San Antonio, TX
210 979 7470
Wichita, KS
316 263 3211
Willis North America • 02/13