Effective March 8, 2013, all employers covered by the Family Medical Leave Act (FMLA) are subject to the United States Department of Labor's recently issued Final Rule that expands the FMLA's military caregiver and qualifying exigency leave provisions. The Final Rule also establishes eligibility rules for airline personnel and flight crews with regard to hours-of-service requirements for FMLA leave.

The Final Rule makes a number of important changes to key provisions related to military caregiver leave, including the following:  

  • Expands the definition of "serious injury or illness" in connection with military caregiver leave to include an illness or injury that existed prior to the service member's active duty and was aggravated by service in the line of duty;
  • Extends military caregiver leave to cover eligible employees who are family members of "covered veterans." "Covered veterans" are members of the armed services, National Guard, or Reserves who are undergoing medical treatment, recuperation or therapy for a serious illness or injury and were discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee took FMLA leave to care for the veteran;
  • Creates a new definition of "serious injury or illness" in connection with military caregiver leave for a covered veteran as an injury or illness that was incurred by the member in the line of duty on active duty in the armed forces and manifested itself before or after the service member became a veteran and includes four alternative types of serious illnesses or injuries, only one of which must be met in order to qualify for military caregiver leave; and
  • Expands the list of authorized health care providers from whom an employee may obtain a certification of the service member's serious injury or illness to include authorized health care providers as defined in the general provisions of the FMLA. Under the previous regulations, only healthcare providers affiliated with the U.S. Department of Defense (DOD), U.S. Department of Veterans Affairs (VA), or TRICARE network were permitted to complete military caregiver leave certifications. Now, certification for military caregiver leave may be completed by any certified healthcare provider; however, the Final Rule also permits an employer to request a second and third opinion for medical certifications obtained from a health care provider who is not affiliated with the DOD, VA, or TRICARE network.

In addition, the Final Rule and its accompanying regulations extend the availability of FMLA leave to family members of members of the armed forces, National Guard, and Reserves for qualifying exigencies arising out of a service member's employment. Specifically, the Final Rule:  

  • Expands qualifying exigency leave to include family members of members of the regular armed forces by substituting the term "covered active duty" for "active duty." Under the Final Rule, "covered active duty" for a member of the regular armed forces is defined as "duty during the deployment of the member of the Armed Forces to a foreign country." Under the previous FMLA regulations, qualifying exigency leave was only available to members of the National Guard and Reserves;
  • Creates a new qualifying exigency leave category for parental care that allows eligible employees to take FMLA leave in order to provide care for a military member's parent incapable of self-care if that care is made necessary by the military member's covered active duty;
  • Increases the amount of time an eligible employee may take for qualifying exigency leave to spend time with a military member on rest and recuperation from five to 15 days;
  • Defines "covered active duty" for a member of the Reserves as "duty during the deployment of the member with the Armed Forces to a foreign country under call or order to active duty."

Although the Final Rule expands qualifying exigency leave to include family members of the regular armed forces, it also amends the definition of "covered active duty" for members of the Reserves and National Guard to mean duty during the deployment of the member with the Armed Forces to a foreign country under a Federal call or order to active duty in support of a contingency operation. Prior to the Final Rule there was no requirement that members of the National Guard or Reserves be deployed to a foreign country. 

As a result of these new regulations, the DOL has issued a new FMLA poster and revised certification and Notice of Eligibility and Rights & Responsibilities forms in order to reflect these recent amendments. These forms are available on the DOL's website and we are happy to provide them to you as well.

All covered employers are advised to immediately post the newly revised FMLA poster. Further, employers should carefully review their current FMLA and military leave policies and employee handbooks to ensure that they comply with the Final Rule and new regulations. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.