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Legislative Update

This column is intended to provide general information and does not constitute legal advice in any individual case. Since facts differ in each specific situation, you should seek the advice of an attorney or other employment law expert.


Jenna H. Leyton, Esq., Pettit Kohn Ingrassia & Lutz PC



U.S. Department of Labor Issues Final Rule Expanding FMLA Protections

The U.S. Department of Labor ("DOL") has issued a final rule expanding military family leave provisions as well as eligibility provisions for airline flight crew employees under the Family and Medical Leave Act ("FMLA").  The new rule implements and interprets two statutory amendments to the FMLA: the National Defense Authorization Act for Fiscal Year 2010 and the Airline Flight Crew Technical Corrections Act.

Among other things, the final rule:

  • Defines a covered veteran, consistent with statutory limitations, as limited to veterans discharged or released under conditions other than dishonorable five years prior to the date the employee's military caregiver leave begins;
  • Creates a flexible definition for serious injury or illness of a covered veteran, which includes four alternatives (only one of which must be met);
  • Extends qualifying exigency leave to eligible employees who are family members of members of the Regular Armed Forces, and adds the requirement for all military members to be deployed to a foreign country in order to be on "covered active duty" under the FMLA;
  • Increases the amount of time an employee may take for qualifying exigency leave related to the military member's rest and recuperation leave from five days to up to fifteen days;
  • Creates an additional qualifying exigency leave category for parental care leave to provide care necessitated by the covered active duty of the military member for the military member's parent who is incapable of self-care; and
  • Creates a unique method of calculating leave for airline flight crew employees, and establishes that FMLA leave for intermittent or reduced schedule leave usage, taken by airline flight crew employees, must be accounted for using an increment no greater than one day.


The final rule takes effect on March 8, 2013.  Additional information, as well as Frequently Asked Questions, can be found on the DOL's website at In conjunction with issuing the final rule, the DOL has also updated its "Employee Rights and Responsibilities Under the Family and Medical Leave Act" poster, which employers with fifty or more employees are required to display.  The updated poster can be found at


IRS Issues Proposed Rules on Employer "Shared Responsibility" Tax Under Affordable Care Act

The U.S. Treasury Department and the Internal Revenue Service ("IRS") have issued proposed rules providing guidance on the employer "shared responsibility" excise tax under the federal health care reform law.

In addition, the IRS has published new Q&As providing guidance about the tax, which was added to the Internal Revenue Code by the Patient Protection and Affordable Care Act and takes effect beginning in 2014.

The proposed rules are broad in scope and contain several new rules and clarifications. For example, the proposed rules:

  • Expand upon earlier IRS safe harbor guidance for determining whether an employee is full-time and for determining whether coverage is affordable.
  • Clarify that an employer will not be subject to tax for failure to offer coverage to spouses.
  • Clarify that an employer that offers coverage to all but five percent of its full-time employees (or, if greater, five full-time employees) and their dependents will be considered to have offered coverage to "substantially all" full-time employees.
  • Clarify that each single employer within a controlled group of employers will be separately liable for the tax.
  • Provide that employers will be notified that an employee has received a premium tax credit or a cost-sharing reduction for coverage on an Exchange and will have an opportunity to respond before the IRS issues a notice and demand for payment.
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