What Does the DOL’s Surprise Birthday Party for FMLA Mean for You?

It was a surprise birthday party for the Family and Medical Leave Act (FMLA), says Susan Schoenfeld, JD. On February 5, 2013, exactly 20 years after the FMLA was signed, the U.S. Department of Labor (DOL) issued a Final Rule ahead of the planned regulatory schedule.

Just what HR was hoping for—more complicated regulations. The Final Rule, says Schoenfeld, which addresses family military leave and airline flight crew rules, will change the way in which covered employers administer family leave for servicemember caregivers and employees with family members in the military.

Schoenfeld is a senior legal editor on the human resources compliance team at Business & Legal Resources (BLR), CER’s parent company.

The FMLA provisions not already in effect became effective on March 8, 2013.

Summary of Changes

The Final Rule amends certain FMLA regulations implementing amendments to the military leave provisions of the law made by the National Defense Authorization Act (NDAA) for Fiscal Year 2010, says Schoenfeld.

To implement the NDAA’s amendments made to the FMLA’s qualifying exigency provision, the Final Rule:

• Revises the FMLA regulations to reflect the expansion of qualifying exigency leave to include eligible employees with family members serving in the regular armed forces;
• Adds a foreign country deployment requirement;
• Increases the length of time an eligible family member may take for the qualifying exigency leave reason of Rest and Recuperation from 5 days to up to a maximum of 15 days; and
• Creates a new qualifying exigency leave category for parental care.

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With regard to military caregiver leave under the FMLA, the Final Rule:

• Specifically defines which conditions constitute a serious injury or illness for a current member of the armed forces or a covered veteran;
• Expands the definition of “serious injury or illness” to include preexisting injuries or illnesses that were aggravated in the line of duty;
• Adds enrollment in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers as evidence of a covered veteran’s qualifying injury or illness; and
• Allows private physicians, outside of the military healthcare system, to certify a serious injury or illness.

The Final Rule also includes clarifying changes concerning the calculation of intermittent or reduced schedule FMLA leave; the removal of the forms from the regulations; and technical corrections to the current regulations.

In addition, says Schoenfeld, the Final Rule amends the regulations to implement the Airline Flight Crew Technical Corrections Act (AFCTCA), which established eligibility requirements specifically for airline flight crewmembers and flight attendants for FMLA
leave and authorized the DOL to issue regulations regarding the calculation of leave for such employees, as well as special recordkeeping requirements for their employers.

To see DOL’s chart comparing the former and current (final) regulatory changes, visit www.dol.gov/whd/fmla/2013rule/comparison.htm.

For more information on the Final Rule, see DOL’s website at www.dol.gov/whd/fmla/2013rule.

Leave for a Qualifying Exigency

The biggest changes in the new law relate to “qualifying exigency” leave. Under the Final Rule, eligible employees may take leave for a qualifying exigency while the employee’s spouse, son, daughter, or parent (the military member or family member) is on covered active duty or call to covered active duty status (or has been notified of an impending call or order to covered active duty).

For regular armed forces members, the Final Rule defines “covered active duty or call to covered active duty status” as duty during the deployment of the member with the armed forces to a foreign country.

For a member of the reserve components of the armed forces (members of the National Guard and reserves), “covered active duty or call to covered active duty status” means 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.

“Armed forces” is defined as the Army, Navy, Air Force, Marine Corps, or Coast Guard.

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Conditions for Exigency Leave

Under the FMLA, an eligible employee may take FMLA leave for one or more of the following qualifying exigencies listed in the regulations:

• Short-notice deployment
• Military events and related activities
• Child care and school activities
• Financial and legal arrangements
• Counseling
• Rest and recuperation
• Postdeployment activities (arrival ceremonies, arranging or attending funerals, reintegration briefings, and any other official ceremony or program sponsored by the military for a period of 90 days following the termination of the military member’s covered active duty status)
• Parental care (new under the Final Rule)
• Additional activities to address other events arising from active duty or call to active duty

In tomorrow’s CED, details on the parental care requirement.

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