Final Family Medical Act Regulations

07/05/2013

On February 6, 2013, the Department of Labor (DOL) published the Final Rule amending the regulations for the Family and Medical Leave Act (FMLA). Back in 2009, President Obama signed the 2010 National Defense Authorization Act (NDAA) into law which included ,b>an additional expansion of family leave rights under FMLA. At that time, the NDAA’s FMLA provisions contained no specific effective date; however, most employers treated the expansion as being effective immediately. Therefore, covered employers (those with 50 employees working within a 75 mile radius) may find that they have already implemented many of the changes but confirmation of such is recommended.

As of March 8, 2013, all covered employers were required to comply with the Final Rule,which increases the leave options available to the families of service members,including the posting of the newly updated FMLA poster.

Covered Active Duty

Eligible employees may take FMLA leave for a qualifying exigency while a military member is on covered active duty, call to covered active duty status or has been notified of an impending call or order to covered active duty. “Active duty” is defined by the Final Rule as duty during deployment to a foreign country.

Exigency Leave

The Final Rule implements the NDAA’s expansion of exigency leave rights to family-member employees to care for the urgent needs of not only reservists, but also active duty service members. Family members include the employee’s spouse, son, daughter or parent. For purposes of qualifying exigency leave, an employee’s son or daughter on covered active duty refers to a child of any age.

The Final Rule includes a new exigency category for leave taken to care for parents: An employee may take leave to care for a military member’s parent who is incapable of self-care, such as arranging for alternative care, providing care on a non-routine, urgent, immediate need basis, admitting or transferring a parent to a new care facility and attending certain meetings with staff at a care facility, such as meetings with hospice or social service providers. The employee taking this leave does not need to be related to the military member’s parent; however, (1) the military member must be the parent, spouse, son or daughter of the employee taking FMLA leave and (2) the parent must be the parent of the military member.

The other categories of qualifying exigencies include:

  • Short notice deployment (i.e., deployment within seven or less days of notice).
    • For a period of up to seven days from the day the military member receives notice of deployment, an employee may take leave to address any issue that arises from the deployment.
  • Attendance in military events and related activities.
    • Attending official ceremonies, programs, events and informational briefings, or family support or assistance programs sponsored by the military, military service organizations, or the American Red Cross related to deployment.
  • Child care and school activities.
    • Arranging for alternative childcare, providing childcare on a non-routine, urgent, immediate need basis, enrolling in or transferring a child to a new school or day care facility. The employee taking this leave does not need to be related to the military member’s child.
  • Financial and legal arrangements.
    • Making or updating financial and legal arrangements to address a military member’s absence while on covered active duty, including preparing and executing financial and healthcare powers of attorney, enrolling in the Defense Enrollment Eligibility Reporting System (DEERS), or obtaining military identification cards.
  • Counseling.
    • Attending counseling for the employee, the military member, or the child of the military member when the need for that counseling arises from the covered active duty of the military member and is provided by someone other than a health care provider.
  • Rest and Recuperation.
    • Taking up to 15 days of leave to spend time with a military member who is on short-term, temporary Rest and Recuperation Leave during deployment. The Final Rules extended the amount of time available for this category of leave from 5 days to 15 calendar days.
      • Post-deployment activities.
        • Certain post-deployment activities within 90 days of the end of the military member’s covered active duty, including attending arrival ceremonies, reintegration briefings and events and other official ceremonies or programs sponsored by the military and addressing issues arising from the death of a military member, including attending the funeral.
      • Any other event that the employee and employer agree is a qualifying exigency.
      • Caregiver Leave
        • Military caregiver leave entitles an eligible employee who is the spouse, parent, son, daughter or next of kin of a covered service member with a serious illness or injury to take up to a total of 26 work weeks of unpaid, job-protected leave during any single 12-month period to care for the service member. The NDAA expanded the definition of covered service members to include veterans who are undergoing medical treatment, recuperation or therapy for serious injury or illness that occurred while on active duty any time during the five years preceding the date of treatment.

 

The Final Rule adds the following change to caregiver leave:

  • Expands the definition of “serious injury or illness.”
    • The definition of “serious injury or illness” is revised to include injuries that pre-existed a service member’s active duty that were aggravated by service in the line of duty on active duty. The injury or illness may manifest itself either before or after the member became a veteran and must fit one of four categories of injuries/illnesses as defined by the Final Rule.

To view The Final Rule to Implement Statutory Amendments to the Family and Medical Leave Act form go to: http://www.dol.gov/whd/fmla/2013rule/militaryForms.htm

Courtesy: Woodruff Sawyer