New FMLA Regulations to Take Effect March 8, 2013: Sweeping Changes Will Affect Military Service members, Veterans and their Families

Significant changes to the military-related provisions of the Family Medical Leave Act (FMLA) regulations will take effect on March 8, 2013. The changes are briefly summarized as follows:

Qualified Exigency Leave (29 C.F.R. §825.126)

Under the current provision, an eligible employee can take qualified exigency leave when the employee’s spouse, son, daughter or parent who is a “covered military member” is on “active duty” or has been notified of impending “active duty.” The existing regulations list eight reasons for an employee to take leave under this provision: (1) short notice deployment; (2) military events and related activities; (3) childcare and school activities; (4) to make financial and/or legal arrangements; (5) to undergo counseling; (6) for rest and recuperation; (7) for post-deployment activities (such as medal ceremonies, debriefings, etc.); and (8) miscellaneous additional activities.

The new regulations change several aspects of qualified exigency leave:

1. The term “covered military member” has been changed to “military member,” and thereby expanded to include members of the National Guard and Reserves in addition to members of the Regular Armed Forces.
2. The concept of “active duty” has been clarified and now requires that military members be deployed to a foreign country. This clarification means that military members who are placed on active duty within the United States are not eligible to receive qualified exigency leave.
3. The reasons for qualified exigency leave have been expanded to cover leave needed to care for the parent of a military member who is not capable of self-care.
4. The amount of qualified exigency leave available in conjunction with a military member’s rest and recuperation has been expanded from five (5) days to fifteen (15) days. However, employees requesting leave in conjunction with a military member’s rest and recuperation must now provide a copy of the military member’s leave orders. See 29 C.F.R. §825.309.

Military Caregiver Leave (29 C.F.R. §825.127)

The concept of “covered servicemember” has been expanded by the new regulations, affecting a number of FMLA provisions. Under existing law, “covered servicemember” included members of the Armed Forces, National Guard and Reserves. Under the new expanded definition, “covered servicemember” also includes some military veterans. To be considered a “covered servicemember” as a veteran, the individual must have been honorably discharged from the Armed Forces, National Guard or Reserves within the five-year period prior to the FMLA leave request.

The expansion of “covered servicemember” also affected the definition of “serious injury or illness” in the Military Caregiver Leave provision as it relates to both active duty members of the military and veterans. Under the existing regulation regarding active duty members of the military, a covered servicemember was considered to have a serious injury or illness only if that condition was incurred in the line of duty or on active duty. Since the new FMLA regulations now include veterans as covered servicemembers, however, an entirely new definition of “serious injury or illness” has been created.

A covered servicemember is considered to have a “serious injury or illness” under four circumstances:

1. The continuation of a serious injury or illness that was incurred and/or aggravated in the line of duty that rendered the covered servicemember unable to perform the duties of his office, grade, rank or rating;
2. A physical or mental condition for which the covered servicemember was given a 50% or greater on the Veteran’s Affairs Service Related Disability Rating (VASRD);
3. A physical or mental condition that substantially impairs a covered servicemember’s ability to secure gainful employment after military service; and
4. An injury forming the basis of the covered service member’s enrollment in the Department of Veteran’s Affairs Program of Comprehensive Assistance for Family Caregivers.

The new regulations also provide a comprehensive list of ways in which an employee’s need for Military Caregiver Leave may be certified. Of particular note is the new provision which prohibits employers from requesting second or third opinions if the medical certification is completed by a medical provider from the Department of Defense, Veteran’s Affairs or TriCare (the government healthcare provider used by the United States Military). See 29 C.F.R. §825.310.

Employee Eligibility under USERRA (29 C.F.R. §825.110)

The new regulations make clear that, in accordance with the Uniformed Services Employment and Reemployment Rights Act (USERRA), when an employee misses time from work due to USERRA-covered military service (including active duty and reserve duty), that time is counted toward the employee’s FMLA minimums (i.e., 12 months/1,250 hours requirements). This also means that employees who are on the payroll but away from work due to USERRA-covered military service must also be counted by employers for purposes of the employer’s FMLA threshold of 50 employees within 75 miles of the worksite.

New Regulations for Airline Flight Crew Employees (29 C.F.R. §§825.800-.803)

In addition to the changes described above regarding military servicemembers, veterans and their families, the revised FMLA regulations contain provisions affecting the eligibility threshold, calculation of leave time and record-keeping requirements for Airline Flight Crew Employees. For more information about these provisions, see 29 C.F.R. §§ 825.800 through 825.803.

New posters setting forth these sometimes complicated changes have been issued by the Department of Labor and must be posted when the new regulations take effect on March 8, 2013. The posters can be secured from the U.S. Department of Labor at http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf.

Employers should revise their FMLA policies to reflect the forgoing changes at their earliest opportunity.