FMLA Military Caregiver and Qualifying Exigency Leave Expanded

February 08, 2013

The U.S. Department of Labor’s Wage and Hour Division has just published a Final Rule, effective March 8, 2013, implementing statutory amendments to the Family and Medical Leave Act of 1993 (FMLA). Of significance to all covered employers, the Final Rule expands the military family leave provisions. In addition, the Final Rule adopts a special eligibility provision for airline flight crew employees and makes regulatory changes to implement the new rules and simplify the regulations overall.

The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. The FMLA covers (1) private sector employers with 50 or more employees, and (2) no matter the number of employees, public agencies and public and private elementary and secondary schools.

1. Military Family Leave — Among other things, FMLA-eligible employees are entitled to two forms of military family leave:

  • 26 workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, child, parent or next of kin (military caregiver leave); and
  • 12 workweeks of leave in a 12-month period for any of eight categories of qualifying exigencies arising out of the fact that the employee’s spouse, child or parent is a covered military member on covered active duty.

The Final Rule broadens military caregiver leave by:

  • Expanding the definition of serious injury or illness to include pre-existing injuries or illnesses of current service members which have been aggravated in the line of duty; and

  • Extending military caregiver leave to care for covered veterans, defined as people undergoing medical treatment, recuperation or therapy for a serious injury or illness, who separated from the military during the five-year period before the first date the eligible employee takes leave to care for that person. A new optional Form WH-385-V, Certification for Leave to Care for Covered Sevicemember (Veteran), is available on the Wage & Hour Division’s website.

Qualifying exigency leave, previously available only to families of members of the National Guard and Reserve components, has been changed by:

  • Extending it to include families of members of the Regular Armed Forces deployed to a foreign country, and requiring that members of the National Guard and Reserve components must be deployed to a foreign country for specified contingency operations;

  • Increasing the amount of exigency leave for spending time with a military member on Rest and Recuperation leave from five to up to 15 days; and

  • Creating a new 9th category of exigency leave for Parental Care, whereby an eligible family member may take leave to care for the parent of a military member, or someone who stood in loco parentis to the military member, when the parent is incapable of self-care and the need for leave arises out of the military member’s covered active duty or call to covered active duty status.

2. Airline Flight Crews — Because of the unique way in which their hours are counted, certain airline personnel and flight crews previously could not meet FMLA eligibility criteria. To rectify this, the Final Rule provides that airline flight crew employees are eligible for FMLA leave if they have worked or been paid for not less than 60 percent of the applicable monthly guarantee (as defined in the new regulations) and for not less than 504 hours during the previous 12-month period.

3. Regulatory Changes — The Final Rule emphasizes the confidentiality of documents relating to any medical certification, recertification, or medical history and the requirement to maintain separate files in accordance with any applicable requirements of the Americans With Disability Act and/or Genetic Information Nondiscrimination Act.
Employers should amend their FMLA policies to reflect these changes and take the occasion to review their practices to ensure they have good documentation of compliance with the FMLA’s extensive notification and recordkeeping requirements.


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    This article was originally published by Bingham McCutchen LLP.