U.S. Department of Labor Issues Final Rule to Implement Amendments to FMLA

On February 5, 2013, the United States Department of Labor marked the twentieth anniversary of the signing of the Family and Medical Leave Act (FMLA) by issuing a Final Rule that implements and interprets two statutory expansions of FMLA protections.

The Final Rule relates to amendments to the FMLA by the National Defense Authorization Act for Fiscal Year 2010 and the Airline Flight Crew Technical Corrections Act. These amendments expanded the FMLA’s military family leave provisions and modified existing rules with the purpose of enabling airline personnel and flight crews better able to make use of the FMLA’s protections. Some highlights of the Final Rule as it relates to the military family leave provisions are outlined below.

The FMLA includes two special military family leave entitlements: military caregiver leave and qualifying exigency leave. Prior to the recent amendments to the FMLA, military caregiver leave was limited to eligible employees who are the spouse, son, daughter, parent, or next of kin of a current servicemember with a serious injury or illness incurred in the line of duty to take up to 26 workweeks of FMLA leave during a single 12-month period to care for the servicemember. The Final Rule now expands this military caregiver provision to include leave to care for certain veterans with a serious injury or illness that was incurred or aggravated in the line of duty. Likewise, the Final Rule further expands military caregiver leave to allow leave for current service members with a serious injury or illness that existed prior to service but was aggravated in the line of active duty. Military caregiver leave for a veteran is not available until the Final Rule becomes effective on March 8, 2013.

The Final Rule also 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. However, if a medical certification is obtained from a non-military affiliated health care provider, the employer may request a second or third opinion. In contrast, health care certifications obtained from healthcare providers associated with the military are not subject to second or third opinions.

The second type of military family leave entitlements under the FMLA is qualifying exigency leave. This leave permits an eligible employee whose spouse, son, daughter, or parent is a member of the military to take up to 12 workweeks of leave for qualifying exigencies arising out of the military member’s active duty or call to active duty. Prior to the amendments to the FMLA, such leave was limited to eligible employees who spouse, son, daughter, or parent is a member of the National Guard or Reserves. The Final Rule implements amendments to the FMLA that expanded such leave to now include eligible employees whose spouse, son, daughter, or parent is a member of the Regular Armed Forces. The Final Rule further incorporates the statutory requirement that the military member (whether in the National Guard, Reserves, or Regular Armed Forces) must be deployed to a foreign country.

The full version of the Final Rule can be found here: http://www.ofr.gov/OFRUpload/OFRData/2013-02383_PI.pdf

Contact: Emily Wilcheck

419.254.5260

ewilcheck@ralaw.com