Family and Medical Leave Act (FMLA) policies have been
the subject of many changes over the past several years. The FMLA entitles an
eligible employee to take up to 12 weeks (and in some situations 26 weeks) of
unpaid leave during a 12-month period for a qualifying reason. The addition of
the military leave provisions and the amendments clarifying and revising the
implementing regulations have resulted in changes to the policies, forms and
paperwork that should be provided to employees.
The regulations implementing the FMLA were recently
amended again by the Department of Labor to modify and expand the military
leave provisions that were first introduced as part of the National Defense
Authorization Act for 2010. The changes went into effect March 8, 2013, and
necessitate that companies revise their policies accordingly. The notable
changes impact the following leaves:
Qualifying Exigency Leave
Qualifying exigency leave is easily the most complex type
of leave. It is available for employees who experience any qualifying exigency
arising from their spouse, child or parent being called to covered active
military duty (including individuals in the Reserves, National Guard and
Regular Armed Forces), or notified of an impending call or order to active
duty, in support of a contingency operation. The maximum amount of leave is 12
The amendments specify that National Guard, Reserves and
Regular Armed Forces are all included in this policy. Previously, members of
the Regular Armed Forces were not considered covered active military members
for purposes of this leave. Additionally, the rules clarify that active duty
requires deployment to a foreign country.
The regulations also expand the situations that may be
considered a "qualifying exigency." A qualifying exigency includes the
following: short-notice deployment (up to seven calendar days leave), military
events and related activities, childcare and school activities, financial and
legal arrangements, counseling, rest and recuperation (changed from five days
to 15 days leave), post-deployment activities, parental care (if the parent is
incapable of self-care) and additional activities upon which the employer and
Military Caregiver Leave
Up to 26 weeks of leave may be taken to provide care to a
spouse, child, parent or next of kin who (1) is a military servicemember
(including individuals in the Reserves, National Guard and Regular Armed
Forces) who incurred or aggravated a serious injury or illness in the line of
active duty for which the servicemember is undergoing medical treatment,
recuperation, or therapy, in outpatient status, or on the temporary disability
retired list; or (2) is a covered veteran who is undergoing medical treatment,
recuperation, or therapy for a serious injury or illness incurred or aggravated
in the line of active duty.
The important change in military caregiver leave is that
covered veterans are now included. A covered veteran is someone who was
discharged or released under conditions other than dishonorable at any time
during the five-year period prior to the first date the eligible employee takes
FMLA leave to care for the covered veteran. In other words, the leave can be
initiated up to five years after the service member leaves the military.
A "serious injury or illness" was also expanded to
include pre-existing injuries or illnesses that were aggravated in the line of
duty, rather than just those that were incurred in the line of duty.
There are other changes and clarifications of the
regulations to be aware of, including the following:
The Department of Labor has prepared a helpful
side-by-side comparison that identifies the changes that were made between the
2008 regulations and the 2013 regulations. It is located here.
Additionally, new forms are available here.
**I originally drafted this article for my
firm's Workplace Word Newsletter. You can read the original article here.
Read more articles on employment law issues
at Employment and the
Law, a blog by Ashley Kasarjian.
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