DOL Celebrates FMLA's 20th Anniversary by Issuing New Final Rule on FMLA Expansion

by Butler Snow LLP
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 The year 2013 marks the 20th anniversary for the Family and Medical Leave Act ("FMLA"), and on February 6, 2013, the U.S. Department of Labor "celebrated" this milestone by issuing a new final rule ("Final Rule") interpreting and implementing expansions to FMLA coverage made by the National Defense Authorization Act for Fiscal Year 2010 ("FY 2010 NDAA") and the Airline Flight Crew Technical Corrections Act ("AFCTCA").  The Final Rule, which takes effect March 8, 2013, mainly addresses expansions to military caregiver and qualifying exigency leave provisions and to airline flight crew member FMLA eligibility.  While most employers are unaffected by regulations regarding airline flight crew members, employers of all types employ individuals with family members in the Armed Forces and need to be aware of the changes to FMLA leave eligibility created or implemented by this new rule.
           
Military Caregiver Leave

Under the FMLA, a spouse, parent, son, daughter, or next of kin of a covered servicemember with a serious illness or injury may take up to 26 workweeks of unpaid, job-protected leave during any 12-month period to care for that servicemember.  This leave was originally limited to current servicemembers who were injured in the line of duty while on active duty.  The Final Rule expands this leave in a couple of ways.

First, the Final Rule expands the definition of “serious injury or illness” to include injuries that preexisted that servicemember’s active duty that were aggravated by service in the line of duty on active duty.

Second, the Final Rule expands military caregiver leave to include family members of "covered veterans", in addition to current servicemembers.  Under the Final Rule, a veteran is “covered” if: (1) he or she was a member of the Armed Forces (including the National Guard or Reserves); (2) was discharged or released under conditions other than dishonorable; and (3) was discharged within the five-year period before the eligible employee first takes FMLA military caregiver leave.  The Final Rule also defines "serious injury or illness" for a covered veteran to include an injury or illness incurred in the line of duty on active duty in the Armed Forces or one that preexisted active duty which was aggravated by service in the line of duty on active duty.  The injury or illness may manifest itself either before or after the member became a veteran and must fit one of the four categories of injuries/illnesses enumerated in the Final Rule. 

The Final Rule also addresses how to calculate the "five-year period" during which the military caregiver leave must begin for care of a covered veteran.  The Final Rule excludes the period of time between the enactment of the FY 2010 NDAA (October 28, 2009) and the effective date of the Final Rule (March 8, 2013) from the calculation of the five years.  Essentially, the Final Rule presses the pause button for this period if a veteran leaves service before March 8, 2013.  Therefore, for veterans whose service ended prior to the enactment of FY 2010 NDAA, all time between military discharge and October 28, 2009, counts toward the five years, but the counter is then paused until March 8, 2013.  For veterans discharged after October 28, 2009, but before March 8, 2013, they will have five years beginning on March 8, 2013, within which the leave must begin.  It is important to note that while the leave must begin during the five-year period, it does not need to be completed within the five years.

Qualified Exigency Leave

Another type of military-related FMLA leave is "Qualified Exigency Leave."  Prior to FY 2010 NDAA, this allowed eligible employees whose spouse, son, daughter, or parent is a military member of the National Guard or Reserves on active duty or notified of an impending call to active duty to take leave for: (1) short notice deployment; (2) military events and related activities; (3) childcare and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; (7) post-deployment activities; and (8) additional miscellaneous activities.  This leave was limited to five days.

FY 2010 NDAA and the Final Rule have also expanded this type of FMLA leave in a few ways.  First, FY 2010 NDAA changed this leave to cover both members of the National Guard and Reserves and those of the Regular Armed Forces.  It also added a requirement that "active duty" requires deployment to a foreign country.  Importantly, these changes were not triggered by the Final Rule and have been in effect since the enactment of the law on October 28, 2009. 

The Final Rule also added a new qualifying exigency leave category allowing leave for parental care.  Eligible employees may use this leave to care for the servicemember’s parent who is not capable of caring for him or herself if the care is necessitated by the servicemember’s absence due to active duty.  Finally, the Final Rule extends the limit for qualified exigency leave to a maximum of 15, rather than 5, days.

Conclusion

The new Final Rule issued earlier this month by the DOL potentially increases the likelihood that some of your employees may already be eligible or will be eligible as of March 8, 2013, to take FMLA leave or to take a longer leave than previously available.  They may need this time to care for a family member, to situate child or parental care, take care of financial or legal issues for a military family member, or just to spend time with a family member while he or she is out on leave.  The Final Rule also makes a few other minor changes in addition to those discussed above.  For example, employers must post a new, updated FMLA poster by March 8, 2013.  It is important that you know the new regulations implementing and expanding FMLA availability to ensure that you are in compliance with the FMLA when responding to leave requests.

If you have any questions regarding those or other changes to the FMLA or need assistance updating any written leave policies, please contact a Butler Snow Labor and Employment attorney for assistance.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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