Workplace Word - March 2013: Family and Medical Leave Act Amendments May Impact Company Policies

by Snell & Wilmer

Family and Medical Leave Act (FMLA) policies have been the subject of many changes over the past several years. The FMLA entitles an eligible employee to take up to 12 weeks (and in some situations 26 weeks) of unpaid leave during a 12-month period for a qualifying reason. The addition of the military leave provisions and the amendments clarifying and revising the implementing regulations have resulted in changes to the policies, forms and paperwork that should be provided to employees.

The regulations implementing the FMLA were recently amended again by the Department of Labor to modify and expand the military leave provisions that were first introduced as part of the National Defense Authorization Act for 2010. The changes went into effect March 8, 2013, and necessitate that companies revise their policies accordingly. The notable changes impact the following leaves:

Qualifying Exigency Leave

Qualifying exigency leave is easily the most complex type of leave. It is available for employees who experience any qualifying exigency arising from their spouse, child or parent being called to covered active military duty (including individuals in the Reserves, National Guard and Regular Armed Forces), or notified of an impending call or order to active duty, in support of a contingency operation. The maximum amount of leave is 12 weeks.

The amendments specify that National Guard, Reserves and Regular Armed Forces are all included in this policy. Previously, members of the Regular Armed Forces were not considered covered active military members for purposes of this leave. Additionally, the rules clarify that active duty requires deployment to a foreign country.

The regulations also expand the situations that may be considered a “qualifying exigency.” A qualifying exigency includes the following: short-notice deployment (up to seven calendar days leave), military events and related activities, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation (changed from five days to 15 days leave), post-deployment activities, parental care (if the parent is incapable of self-care) and additional activities upon which the employer and employee agree. 

Military Caregiver Leave

Up to 26 weeks of leave may be taken to provide care to a spouse, child, parent or next of kin who (1) is a military servicemember (including individuals in the Reserves, National Guard and Regular Armed Forces) who incurred or aggravated a serious injury or illness in the line of active duty for which the servicemember is undergoing medical treatment, recuperation, or therapy, in outpatient status, or on the temporary disability retired list; or (2) is a covered veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness incurred or aggravated in the line of active duty.

The important change in military caregiver leave is that covered veterans are now included. A covered veteran is someone who was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran. In other words, the leave can be initiated up to five years after the service member leaves the military.

A “serious injury or illness” was also expanded to include pre-existing injuries or illnesses that were aggravated in the line of duty, rather than just those that were incurred in the line of duty. 

There are other changes and clarifications of the regulations to be aware of, including the following:

  • The list of healthcare providers that could certify leave under the military caregiver provisions was expanded to include those who are not affiliated with the Department of Defense, U.S. Department of Veterans Affairs or TRICARE. 
  • The regulations clarify that an employer may not require an employee to take more leave than necessary to address the circumstances precipitating the need for leave and one hour is the maximum amount of time that can be used for the minimum increment of leave.
  • The regulations clarify that the “physical impossibility” provision – which may be utilized if an employer is going to prohibit an employee from starting a shift mid-way through the shift – should only be applied in the most limited of circumstances.

The Department of Labor has prepared a helpful side-by-side comparison that identifies the changes that were made between the 2008 regulations and the 2013 regulations. It is located here.

Additionally, new forms are available here.

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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