The U.S. Department of Labor’s Wage and Hour Division has issued a Final Rule implementing recent Family and Medical Leave Act amendments expanding the leave which employers must provide to military family members.  The Final Rule was published in the Federal Register on February 6, 2013, and will become effective on March 8, 2013.

Background

For several years, eligible employees with a spouse, child or parent in the National Guard or Reserves have been entitled to FMLA leave to address certain “qualifying exigencies” relating to the family member’s military service.  Qualifying exigencies include such things as attending military ceremonies and programs, arranging for alternative child care, making financial or legal arrangements necessary because of the service member’s absence, attending counseling sessions, and addressing other issues that have arisen because the service member received short notice of his or her deployment.

In addition to the leave available for these “qualifying exigencies,” an employee with a spouse, child, parent or next of kin currently in the Armed Forces has been entitled to “military caregiver leave” to care for a family member with a serious injury or illness incurred in the line of duty.  The regulations specifically stated, however, that leave was not available to care for former members of the Armed Forces (i.e., veterans).

These provisions of the FMLA were amended by the National Defense Authorization Act for Fiscal Year 2010 which expanded the availability and scope of military exigency leave and military caregiver leave.  The Final Rule issued by DOL on February 6 implements and explains these amendments.  The Final Rule, which may be accessed at http://www.gpo.gov/fdsys/pkg/FR-2013-02-06/pdf/2013-02383.pdf, includes extensive commentary and completely restates the FMLA regulations.

Highlights of Final Rule

Key changes in the FMLA regulations pertaining to military exigency leave and military caregiver leave include:

• Military exigency leave has been expanded and is now available to employees with a spouse, son, daughter or parent in the regular Armed Forces.  Previously, qualifying exigency leave was available only to family members of individuals serving in the National Guard or Reserves.
• A new category of exigency leave, dealing with parental care, has been created.  If the employee’s parent is incapable of self-care and the need for care has been necessitated by the parent’s active duty or call to active duty, the employee may take leave to make arrangements for the parent’s care.  Leave may also be taken to address admissions or transfers to appropriate care facilities and to attend necessary meetings at those facilities.
• The amount of exigency leave which may be taken to spend time with a service member who is undergoing short-term rest or recuperation during a period of deployment has been increased from 5 days to 15 days.
• Under the Final Rule, military exigency leave will only be available if the service member has been deployed to a foreign country.
• Military caregiver leave (leave to care for a covered service member with a serious injury or illness) has been expanded to include leave to care for certain veterans who are undergoing medical treatment, recuperation or therapy for a serious injury or illness. This change was accomplished by broadening the definition of “covered service member,” which was previously limited to current members of the Armed Forces, to include veterans who were members of the Armed Forces within the five-year period preceding the date of the service member’s medical treatment, recuperation, or therapy.
• The definition of a serious injury or illness for military caregiver leave has been expanded to include preexisting conditions which were aggravated in the line of duty and which render the service member medically unfit.

New FMLA Poster and Certification Forms

DOL has published a new FMLA poster, accessible at http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf, which employers must begin using no later than March 8, 2013. DOL has also created a new Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave, Form WH-385-V, accessible at http://www.dol.gov/whd/forms/wh385V.pdf. Two other DOL certification forms have been revised as of February 2013.

If you have questions regarding the Final Rule or other issues under the FMLA, please feel free to contact a member of the Chambliss Labor and Employment Practice Group.