FMLA Service Member Requirements Expanded

Contributed by Julie Proscia

On February 6, the U.S. Department of Labor (DOL) published a final rule that amended the Family and Medical Leave Act (FMLA) regulations addressing the coverage of military caregiver and exigency leaves. The changes go into effect on March 8, 2013 and impact the recordkeeping, definitions and leave requirements for the FMLA provisions of leave for service members and their families. The highlights of the final rules are as follows:

 Summary of Major Changes:

 Applicable to FMLA Leave for Service Members

  • Clarifies the scope of exigency leave for family members of those in the regular armed forces (for example, leave to arrange for child care or attend certain school activities is only available if the service member is the spouse, son, daughter, or parent of the employee requesting leave—in-laws of a service member are not eligible for this type of leave);
  • “Covered military member” is now “military member” and includes both members of the National Guard and Reserves and the Regular Armed Forces. 
  • “Active duty” is now “covered active duty” and requires deployment to a foreign country. 
  • A new qualifying exigency leave category for parental care leave is added. Eligible employees may take leave to care for a military member’s parent who is incapable of self-care when the care is necessitated by the member’s covered active duty. Such care may include arranging for alternative care, providing care on an immediate need basis, admitting or transferring the parent to a care facility, or attending meetings with staff at a care facility.  
  • The amount of time an eligible employee may take for Rest and Recuperation qualifying exigency leave is expanded to a maximum of 15 calendar days. 
  • The definition of a serious injury or illness for a current service member is expanded to included injuries or illnesses that existed before the beginning of the member’s active duty and were aggravated by service in the line of duty on active duty in the Armed Forces. 
  • If an employer requests certification, an employee may submit documentation of enrollment in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers as sufficient certification of the covered veteran’s serious injury or illness. The documentation is sufficient even if the employee is not the named caregiver on the document. 
  • Clarifying language is added that an employer may not require the employee to take more leave than necessary to address the circumstances that precipitated the need for leave, and that FMLA leave may only be counted against an employee’s FMLA entitlement for leave taken and not for time that is worked for the employer. 
  • Clarifying language is added noting that the physical impossibility provision is to be applied in only the most limited circumstances, and the employer bears the responsibility to restore the employee to the same or equivalent position as soon as possible.

The DOL has also developed several new FMLA forms, as well as an updated FMLA poster.  The revised FMLA Caregiver Leave form will not be available from the DOL until after March 8, 2013. The changes are both broad and narrow in scope at the same time. While they will affect a narrow section of your workforce, service members and family of service members, they broadly expand those sections.