FMLA regulations, forms, and poster updated for employees needing military family leave

The U.S. Department of Labor (DOL) has updated its regulations, forms, and poster under the federal Family and Medical Leave Act (FMLA). Most of the changes were due to Congress amending the FMLA with two separate laws in 2009. One law expanded FMLA leave for employees with family in the military and the other made it easier for airline flight crews to qualify for FMLA leave. We’ll focus on the major changes regarding employees with family members in the military, as required by the National Defense Authorization Act (NDAA) of 2010. There are two types of leave that are covered:  Military caregiver leave and qualifying exigency leave.

For military caregiver leave (where an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember with a serious injury or illness, may take up to a total of 26 workweeks of unpaid leave during a “single 12-month period” to care for the servicemember):

• The NDAA of 2010 said a serious injury or illness includes the aggravation of a pre-service injury or illness in the line of duty on active duty.

• The NDAA of 2010 said an FMLA-eligible employee may take leave, not only to care for someone currently serving in the military, but also to care for military veterans with a serious illness or injury where the family member was in the Armed Forces within the past five years.

• The DOL’s updated regulations throw a potential monkey wrench at employers. The DOL says that for family members who become veterans before March 8, 2013 (the effective date of the new regulations), the period of time between October 28, 2009 (when the NDAA of 2010 was enacted) and March 8, 2013, doesn’t count toward that five-year period when the employee may take leave to care for the veteran. In other words, the five-year period is temporarily extended for those individuals. Also, if an employer voluntarily granted FMLA military caregiver leave for the employee to care for a veteran during that time period, the time isn’t FMLA leave.

• The DOL expanded the list of health care providers who can evaluate whether a family member has a serious injury or illness incurred in active duty, to include not only those affiliated with the Department of Defense (DOD), the Veterans Administration (VA), and TRICARE, but also any other health care provider as defined in the FMLA for certifying serious health conditions. The only difference under the updated regulations is that the employer may ask for a second or third opinion from a private health care provider, but cannot do so for a military-affiliated health care provider.

• The DOL determined that an employee may take leave to care for a military servicemember who is currently in the Armed Forces, and then may do so again if the servicemember leaves the military and becomes a veteran. In other words, these would be two separate calculations of the 26-week period because they are two separate reasons for leave. However, an employee is still limited to a maximum of 26 weeks of military caregiver leave in a 12-month period.

For qualifying exigency leave (where an urgent situation arises out of the fact that the employee’s spouse, son, daughter, or parent is on covered active duty, or has been notified of an impending call or order to covered active duty):

• The NDAA of 2010 imposed a requirement that the military servicemember must be deployed to a foreign country.

• The NDAA of 2010 expanded qualifying exigency leave to include not just family members serving in the National Guard and Reserve, but also in the Regular Armed Forces.

• The DOL expanded the period of time an employee may take off to be with a military family member on leave from deployment. Instead of five work days, the employee may take leave (intermittent or continuous) during the period of up to 15 calendar days beginning with the date the military member begins each Rest and Recuperation leave.

• The DOL added military funerals to the types of post-deployment activities for which the employee may take FMLA leave.

• The DOL added a new category of qualifying exigency: Caring for a parent of the military member, when the parent is incapable of self-care and an urgent, non-routine need for leave arises because of the military member’s covered active duty or call to covered active duty.

For FMLA compliance, you should post the DOL’s new poster by March 8, 2013, and begin using the new forms. Links to all the forms are available in the poster section of Vigilant’s member website. Vigilant is in the process of updating our model FMLA policy and other FMLA guidance in light of the DOL’s new regulations (78 Fed Reg 8834, Feb. 6, 2013). In the meantime, if you have questions regarding FMLA or employment compliance, please browse our employment law blog or contact your Vigilant staff representative.