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

by Butler Snow LLP

 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.


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.

© Butler Snow LLP | Attorney Advertising

Written by:

Butler Snow LLP

Butler Snow LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.