Department of Labor Issues New FMLA Regulations Regarding Military-Related Family Leave

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02/25/2013 8:57 AM

On February 6, 2013, the U.S. Department of Labor issued final Family Medical Leave Act (FMLA) regulations that take effect March 8, 2013. These regulations relate specifically to leave taken by family members of military personnel, among other issues. FMLA provides two types of military-related family leave: qualifying exigency leave and military caregiver leave, both of which allow an employee unpaid leave from work without jeopardy of losing his or her job.

Qualifying exigency leave generally allows for family members of certain military personnel to take leave to attend to matters that arise due to deployment to a foreign country. A military family member is eligible for a total of 12 weeks of qualifying exigency leave per year, which previously could be taken for seven specific reasons. The new regulations add a new basis for taking this kind of leave, which is parental care. This allows a military family member to take exigency leave to make care arrangements for the parent of the military member. Parental care under the regulations is similar to care of the child of a deployed military member. The regulations also increase the number of leave days (from 5 to 15) that an employee may take to spend time with his or her military family member during a time of rest or recuperation from deployment.

Additionally, the FMLA revisions now allow family members of members of the regular armed forces to take qualified exigency leave, as well as those of members of the Reserves and National Guard, and create a more complete definition of "active duty."

Military caregiver leave allows employees to take leave to care for their military spouse, son, daughter, or parent. A military family member is eligible for up to 26 weeks of military caregiver leave. The primary change to the regulations relates to the family members of veterans. The revisions will allow a family member of a covered veteran to take military caregiver leave if the veteran is undergoing medical treatment, recuperation, or therapy for a serious injury or illness. Leave to care for veterans who received a dishonorable discharge is not covered.

The new regulations clarify who may complete the certification of serious health condition for the military member (health care providers from Department of Defense, Veterans’ Affairs, or TRICARE, and others) and when second and third opinions may be sought.

In connection with the new regulations, the DOL has released new forms and a new poster. Employers should update their FMLA policies to reflect these new provisions, and begin using the new forms and posters, by March 8. If you have any questions about the new rules or their implementation, please contact Melissa Jones.

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