Proposed Revisions to FMLA will Implement Recent Amendments to Military Leave Provisions

On February 15, 2012, the U.S. Department of Labor’s Wage and Hour Division issued a “notice of proposed rule making,” describing proposed revisions to regulations under the Family and Medical Leave Act of 1993 (FMLA). These regulations are proposed primarily to implement recent amendments to the military leave provisions.

The FMLA entitles eligible employees to take job-protected, unpaid leave, for up to a total of 12 workweeks in a 12-month period for certain serious health conditions of the employee or specified family members, or the birth or adoption of a child. The FMLA was amended by the enactment of the 2008 National Defense Authorization Act (NDAA), which allows eligible employees to take FMLA leave because of any “qualifying exigency” when the employee’s spouse, son, daughter, or parent is called to active duty in the Armed Forces in support of a contingency operation. Additionally, the 2008 amendments provide up to 26 workweeks of “military caregiver leave” in a single 12-month period for an eligible employee to care for a covered service member with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered service member. These two leave entitlements are referred to as “military family leave.”

The FMLA was further amended by the 2010 NDAA, which expands the availability of military family leave. Qualifying exigency leave was expanded to include family members of the regular armed forces, and by adding a requirement that members of the National Guard and reserves be deployed to a foreign country. The NDAA also expanded the definition of a serious injury or illness for military caregiver leave to include an injury or illness that existed prior to service and was aggravated in the line of duty during active duty service.

The proposed regulations implement these new provisions of the FMLA. Additionally, the current regulations allow an eligible employee to take up to 5 days of leave to spend time with a military member on rest and recuperation leave during a period of deployment. The Department of Labor (DOL) proposes to expand this type of qualifying exigency leave to 15 days. With respect to military caregiver leave, the proposed regulations would allow military caregiver leave for qualifying family members of individuals who serve in the regular armed forces and to recent veterans.

The regulatory definition of “serious injury or illness” would be expanded to include conditions that existed before the service member joined the military or served on active duty but were aggravated in the line of duty. Specific to veterans, the expanded definition would include: (1) conditions that occurred while the veteran served and continued after discharge; (2) a physical or mental condition for which the covered veteran has received a Department of Veterans Affairs service related disability rating of at least 50%; or (3) any injury or illness of similar severity that substantially impairs the veteran’s ability to gain or keep a substantially gainful occupation by reason of a service-connected disability, or would do so absent treatment. This third alternative is intended to mirror the way private health care providers make determinations for Social Security Disability claims.

The proposed regulations would allow service members and veterans to obtain certification of a serious injury or illness from an authorized health care provider as defined in the non-military family leave provisions, rather than restricting certification to the Department of Defense or VA-approved providers as in the current regulations. For this reason, the proposed regulations would allow second and third opinions when the certification has been completed by a private health care provider.

The proposed regulations would make various changes to the information employers may require from employees to certify the need for military family leave. New official forms and approved notices are also proposed, as are “corresponding minor changes to the FMLA poster.” If these proposals are finalized, all employers will have to review and revise the posters they display and the forms they utilize for FMLA military family leaves.

The DOL recognizes the potential for eligible employees to take multiple and lengthy periods of leave under the regulations. The current regulation provides that the 26-workweek entitlement for qualifying exigency leave is applied as a per-covered service member, per-injury entitlement. Because there are now two distinct categories of covered service members (a current member of the armed forces and a covered veteran), an eligible employee could potentially take military caregiver leave to care for a current member of the armed forces and, at a later point when the same service member becomes a covered veteran, take a subsequent period of military caregiver leave. Likewise, an eligible employee may take up to 26 workweeks of leave to care for the same covered service member with a subsequent serious injury or illness. All of the eligibility requirements, as the hours of service requirement, would apply in such situations, and an employee may not take more than a combined total of 26 workweeks of FMLA leave during a single 12-month period.

These proposed regulations are not yet final and most do not require compliance at this time. For example, employers are not required to provide employees with FMLA-protected military caregiver leave for the “serious injury or illness of a veteran” until final rules defining the terms are issued. However, immediate compliance is required with the expansion of qualifying exigency leave for foreign deployment of a family member in the regular armed forces. After a 60-day public comment period, the DOL will issue final regulations that employers will be required to follow.

Categories: Labor/Employment

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