FMLA's Twentieth Birthday

by Nexsen Pruet, PLLC

The Family and Medical Leave Act Turns Twenty

On February 5, the Family and Medical Leave Act (FMLA) turned 20 years old.  Pomp and circumstance aside, the FMLA has certainly been a significant development in employment law over the past two decades. Although the U.S. Department of Labor reports that recent survey results indicate that “85% of employers report that complying with the FMLA is very easy, somewhat easy, or had no noticeable effect,”  and that “misuse of the FMLA is rare,” administering the FMLA’s regulatory framework at the employee level can consume substantial amounts of an employer’s time and resources.

Coinciding with this milestone, the Labor Department has issued a new final rule, which codifies further additions and revi- sions to the FMLA.  A number of these changes implement the substance of Section 565 of the National Defense Authorization Act (NDAA), which expanded FMLA benefits for qualifying exigency and military caregiver leave.  This newsletter highlights some of these changes.

Military Caregiver Leave

To implement the NDAA, the Labor Department’s revised FMLA regulations extend the definition of “covered servicemember” to include “covered veterans.” This expands the application of military caregiver leave for a period of five years after a service- member is discharged or otherwise released from service under conditions other than dishonorable. It is important to note that the time period from October 28, 2009 (when the NDAA was enacted), and March 8, 2013 (the effective date of the new rule), is not considered for the purposes of determining the foregoing five-year window. Given the exclusion of those dates, the present window may extend well beyond five years.

With respect to the above “covered veteran” status, employers may now require that an individual provide details of the separation from service, including: 1) the date of the separation; 2) whether the discharge was dishonorable; and 3) the individual’s branch, rank, and unit at the time of discharge.

The new regulations also expand the definition of a “serious injury or illness” for a covered servicemember to include illnesses and injuries that may have existed prior to active duty, but were aggravated in the line of duty while on active duty.

Moreover, a rule defining a “serious injury or illness” of a “covered veteran” was also promulgated.  The lengthy definition includes a number of technical elements.  While such an injury must have been incurred or aggravated in the line of duty while on active duty, it need not have manifested itself prior to the time that the individual attained “covered veteran” status.

Qualifying Exigency Leave

Qualifying exigency rules have also been expanded to provide additional opportunities for leave under the FMLA.  At the outset, the prior term “covered military member” has been revised to “military  member,” and now includes National Guard and Reserve members in addition to active members of the armed forces.  The term “active duty” was revised to require deployment to a foreign country, and is now called “covered active duty.”

Also, a new category of exigency leave was created.  In addition to the prior eight standards for exigency leave, otherwise eligible individuals are permitted to take qualifying exigency leave under the FMLA to care for a military member’s parent. But the parent must be otherwise incapable of self-care, and the care must also be needed due to the “covered active duty” of a servicemember.

The rules surrounding qualifying exigency leave for “rest and recuperation” were modified as well.  Previously, only five days of leave were permitted for an individual to spend time with a military member on rest and recuperation leave. That period has now been extended to 15 days. Additionally, individuals requesting qualifying exigency leave on this basis can now be required to provide a copy of rest and recuperation leave orders or other documentation of leave.

Minimum Increments of Leave

In 2008, the Department of Labor provided that intermittent FMLA leave could be tracked as an increment no greater than the shortest period that an employer used to account for leave. The maximum leave increment could not be greater than one hour.  The new regulations state that an employee cannot be required to take more leave than necessary, and an employee’s leave entitlement cannot be reduced by more than the amount of leave that was actually taken.

For example, if FMLA leave is tracked in increments of one hour, and an employee is absent for 2½ hours but returns to work immediately thereafter, then only 2½ hours (not three) can be deducted from his or her available leave.

Also, the 2008 FMLA rules provided that if it was physically impossible for an employee to begin or end work in mid-shift (e.g., a flight attendant or “clean room” worker), the entire time an employee was required to be absent could be counted against available leave.  While this principle remains, the comments to the 2013  rules note that this provision should be applied “in only the most limited circumstances.”

New FMLA Poster and Forms

Commensurate with the above revisions to the rules implementing the FMLA, the Labor Department has issued a new FMLA poster and forms, all of which must be used beginning March 8, 2013.  From a procedural standpoint, these documents were moved from the regulations to facilitate ease of future changes. They are now available directly from the Wage and Hour Division’s website (, and include the following:

WH-1420: Employee Rights and Responsibilities Under the Family and Medical Leave Act

WH-380-E: Certification of Health Care Provider for Employee’s Serious Health Condition

WH-380-F: Certification of Health Care Provider for Family Member’s Serious Health Condition

WH-381: Notice of Eligibility and Rights & Responsibilities

WH-382: Designation Notice

WH-384: Certification of Qualifying Exigency For Military Family Leave

WH-385: Certification for Serious Injury or Illness of Current Servicemember -- for Military Family Leave

WH-385-V: Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

What Should Employers Do Now?

Moving forward, employers should immediately begin using the new poster and forms.  Additionally, they should consider evaluating their current policies to assess compliance with the new rules.

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.

© Nexsen Pruet, PLLC | Attorney Advertising

Written by:

Nexsen Pruet, PLLC

Nexsen Pruet, PLLC 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.