New FMLA Rules Expand Leave Eligibility for Military Family Members

Earlier this month, the Department of Labor issued its final rule implementing changes to the Family and Medical Leave Act as mandated by the National Defense Authorization Act of 2010 (NDAA).

The most significant revisions to the law: expansion of the conditions under which military families can take qualified FMLA leave. For your reference, here’s a look at key changes:

1. Expanded justification for caregiver leave:

“The new regulations add language to ensure that for purposes of exigency leave related to childcare and school activities the military member must be the spouse, parent, or child of the employee seeking leave, but the child for whom the leave is sought need not be the child of the employee requesting leave… The new regulations also expressly provide for exigency leave for parental care for a military member’s parent or a person that stood in loco parentis when the parent is incapable of self-care and the need for leave arises out of the military member’s active duty or call to active duty.” (Littler)

2. Caregiver leave now available to families of veterans:

“As for caregiver leave, it now can be taken up to five years after the service member leaves the military and for an injury or illness that results from a condition that predates the individual’s active duty but that was exacerbated by the military service. Prior to the NDAA, caregiver leave was available only to employees caring for current service members, not veterans.” (Franczek Radelet)

3. New definitions of “active duty:”

“The Final Rule replaces the existing definition of ‘active duty’ with two new definitions: (1) ‘covered active duty’ … and (2) ‘covered active duty or call to covered active duty’… The new definition of ‘covered active duty’ … requires that the service member be deployed with the armed forces in a foreign country. The new definition of ‘covered active duty or call to covered active duty’ … requires that the service member be under a call or order to active duty during the deployment of the member to a foreign country under a federal call or order to active duty in support of a contingency operation.” (Morgan Lewis)

4. New definition of “serious illness or injury” for veterans:

“The final rule includes a definition of a covered veteran undergoing medical treatment, recuperation, or therapy for a serious illness or injury, which is defined to include conditions that do not arise until after the veteran has left military service.” (Ogletree Deakins)

5. Leave now covers preexisting conditions aggravated by active duty:

“The Final Rule clarifies that a serious injury or illness can include a preexisting condition aggravated by military service in the line of duty on active duty. The Final Rule explains that a preexisting injury or illness generally will be considered to have been aggravated in the line of duty where there is an increase in the severity of such injury or illness during service, unless there is a specific finding that the increase in severity is due to the natural progression of the injury or illness.” (Morgan Lewis)

6. R&R FMLA leave extended:

“The amount of time allowed for FMLA ‘qualifying exigency leave’ specifically relating to a servicemember’s ‘Rest and Recuperation’ leave (R&R) has been extended to 15 rather than 5 days.” (Miller & Martin)

7. Non-military facilities now authorized to provide care:

The Final Rule expands the list of health care providers who can provide a medical certification to support FMLA military caregiver leave to include health care providers who are not affiliated with the military. If a medical certification is obtained from a non-military affiliated health care provider, the employer may request a second (or third) opinion from the employee.” (Akerman)

The updates:

Find additional commentary and analysis on the Family and Medical Leave Act at JD Supra>>