U.S. Department of Labor Issues Final FMLA Rules with Amendments that Add Military Family Leave

On November 14, 2008, the U.S. Department of Labor issued its anticipated final revised regulations relating to the recent amendments to the Family and Medical Leave Act (“FMLA”). The new rules are set forth in 750 pages and were published in the Federal Register on November 17, 2008, and will be effective January 16, 2009. In addition to other changes, the regulations implement statutory amendments that were signed into law by President Bush on January 28, 2008 that provided two new leave entitlements (known as “military family leave provisions”) under the FMLA: (1) qualifying exigency leave, and (2) military caregiver leave.

Qualifying Exigency Leave:

The first military family leave provision, qualifying exigency leave, allows an eligible employee to take 12 weeks of leave (over a 12-month period) for a qualifying exigency arising when the employee's spouse, son, daughter, or parent (the “covered military member”) is on active duty or called to active duty. The final regulations define “qualifying exigency” by providing a specific and exclusive list of reasons for which an eligible employee can take leave. These reasons are divided into seven general categories: (1) short-notice deployment; (2) military events and related activities; (3) childcare and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; (7) post-deployment activities; and (8) additional activities (agreed to by the employer and the employee).

The final regulations also makes clear who is entitled to qualifying exigency leave. Only members of the Reserve components and the National Guard, and also certain retired members of the Regular Armed Forces and retired Reserve who are on active duty or called to active duty trigger entitlement to qualifying exigency leave. This leave entitlement does not extend to family members of the Regular Armed Forces on active duty status. Moreover, the final rule provides that leave taken because of a qualifying exigency refers to a Federal call to active duty. State calls to active duty are not covered unless under order by the President.

The final rule also establishes a separate definition of “son or daughter on active duty or call to active duty status” for the purpose of qualifying exigency leave. A “son or daughter on active duty or call to active duty status” is defined as an “employee's biological, adopted, or foster child, stepchild, legal ward, or a child for whom the employee stood in loco parentis , who is on active duty or call to active duty status, and who is of any age.”

Military Caregiver Leave:

The second military leave provision, military caregiver leave, allows an eligible employee who is the spouse, son, daughter, parent, or next of kin of a “covered servicemember” to take up to 26 weeks of leave to care for a covered servicemember with a serious injury or illness during a “single 12-month period.” Under this provision, a “covered servicemember” means a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in “outpatient status,” or is otherwise on the temporary disability retired list, for a “serious injury or illness.” The final rule defines a “serious injury or illness” as an “injury or illness incurred by a covered servicemember in the line of duty on active duty that may render the servicemember medically unfit to perform the duties of his or her office, grade, rank or rating.”

Under this leave, employers will not have the option of using the calendar-year method as they do for other types of FMLA leave. An eligible employee is only entitled up to 26 weeks of leave in a single 12-month period. The single 12-month period begins on the first day the employee takes the leave, and ends 12 months after that date. The 26 weeks of leave is applied on a per-covered servicemember, per-injury basis. This means that an eligible employee may take 26 weeks of leave to care for one covered servicemember in a “single 12-month period” and then take another 26 weeks of leave in a different “single 12-month period” to care for another covered servicemember or to care for the same covered servicemember with a subsequent serious injury or illness.

The per-injury entitlement is limited to subsequent serious injuries and illnesses. This means, for example, that if a covered servicemember incurs a serious injury or illness during one deployment and then incurs another serious injury or illness during a second deployment, then an employee would be entitled to two separate 26-week periods of leave during separate “single 12-month” periods to care for the covered servicemember. Additionally, if the covered servicemember incurs one serious injury or illness and at a later time he or she subsequently manifests another serious injury or illness, then an employee would be entitled to another 26 weeks of leave to care for the covered servicemember in a separate “single 12-month” period. However, if a covered servicemember experiences an aggravation or complication of the initial serious injury or illness, an employee would not be entitled to an additional period of leave to care for the covered servicemember.

Additionally, an employee cannot carry-over unused weeks of military caregiver leave from one 12-month period to another. The final regulation provides that once an employee begins taking leave to care for a covered servicemember, the employee is entitled to take up to 26 weeks of leave during that 12-month period. Any unused time the employee does not take during this period will be forfeited. Also, an employee is entitled to a combined total of 26 weeks for military caregiver leave and leave for any other FMLA-qualifying reason. For example, if an employee has already used 6 weeks to care for a sick relative under the standard FMLA provisions, then the employee would have only 20 weeks left for military caregiver leave during the single 12-month period.

What this means for employers:

With the publication of the final revised FMLA regulations, employers should update their employment handbooks to incorporate the new changes and amendments to the FMLA. Additionally, employers should revise their FMLA leave forms to include the new military family leave provisions. Employers should familiarize themselves with the new changes and modifications to the FMLA, and train Human Resources and office management staff to be aware of the new changes. Also, employers are required to post a new Family and Medical Leave poster notifying employees of these changes to the FMLA.

The FMLA final rules can be found at: http://www.dol.gov/dol/topic/benefits-leave/fmla.htm