On February 6, 2013, the Department of Labor (DOL) issued final regulations implementing statutory amendments to the FMLA. These regulations incorporate the amendments Congress passed in 2010 relative to military family and airline industry employees. While the new regulations, which become effective on March 8, 2013, may require employers to update their written FMLA policies and forms, the regulations will likely not affect employers’ leave administration procedures.

Qualifying Exigencies Expanded

As required by Congress, the final rule expands qualifying exigency leave to cover not only family members who are members of the National Guard and Reserves, but also family members who are in the regular armed forces and are deployed to a foreign country. The final regulations also make several notable changes to the types of qualifying exigencies for which leave is available:

Exigency Leave for Rest and Recuperation. The new regulation increases the maximum number of days to 15 calendar days for exigency leave to bond with a military member who is on rest and recuperation leave.

Exigency Leave for Post-Deployment Activities. The regulations expand the post-deployment exigency to include leave to address issues that arise from the death of a military member while on covered duty status.

Exigency Leave for Parental Care. The regulation adds parental care as a qualifying exigency for which leave may be taken. This exigency is similar to the childcare exigency provision and allows an eligible employee to take leave to attend to matters related to the care of the military member’s parent who is incapable of self-care. Such parental leave includes leave to do the following:

• Arrange for alternative care for a parent of the military member when the covered active duty or call to covered active duty status of the military member necessitates a change in existing care arrangements.
• Provide care for a parent of the military member on an urgent, immediate-need basis (but not on a routine, regular or everyday basis) when the need to provide such care arises from the covered active duty or call to covered active duty status of the military member.
• Admit or transfer a parent of the military member to a care facility when the admittance or transfer is necessitated by the covered active duty or call to covered active duty status of the military member.
• Attend meetings with staff at a care facility for a parent of the military member when such meetings are necessitated by the covered active duty or call to covered active duty status of the military member.

Exigency Leave for Childcare and School Activities. The drafters of the regulations specifically declined to extend qualifying exigency leave to employees who stand in loco parentis to a child of a military member when that employee does not have the statutorily required relationship with the military member for that leave. For example, while the mother of a military member may take leave to care for the military member’s child, the military member’s mother-in-law is not qualified for such leave, regardless of her relationship with the child, because the military member is not the spouse/son/daughter/parent of the employee requesting leave.

Covered Servicemember to Include Covered Veteran

Congress amended the FMLA to allow time off for employees to care for family members who had served in the military and later manifested serious health problems (e.g., PTSD). The original statute limited the leave to active members of the armed forces. However, the 2010 amendments include veterans as covered individuals for whom employees can seek leave related to an injury or illness. The new regulations provide a definition of covered veteran and incorporate the revisions made by the 2010 amendments, provided such veterans must have been in the military in the five years before the employee first takes FMLA leave.

Medical Certification Requirements Adjusted For Military Caregiver Leave

The existing regulations limit the type of healthcare providers authorized to certify a serious injury or illness for military caregiver leave. The new rule eliminates this distinction and allows any healthcare provider authorized under the general medical certification provisions of the FMLA regulations to certify injury or illness under the military caregiver provisions. The DOL has developed new Forms WH-385 and WH-385-v to help employers meet the FMLA’s certification requirements.

Airline Flight Crew FMLA Leave

The Airline Flight Crew Technical Corrections Act (AFCTCA), which took effect on December 21, 2009, provides that an airline flight crew employee will meet the hours worked eligibility requirement if he or she has worked or been paid for not less than 60% of the applicable total monthly guarantee and has worked or been paid for not less than 504 hours during the previous 12 months. The new regulations include provisions to align the existing regulations with the passage of the AFCTCA. Notably, the rule includes adoption of a uniform entitlement for airline flight crew employees of 72 days of leave per applicable leave year for one or more FMLA-qualifying reasons and 156 days of military caregiver leave.

The DOL’s new regulations take effect on March 8, 2013. Covered employers should review their FMLA policies and forms to confirm that they remain consistent with the new regulations.