The Department of Labor issued a Final Rule to implement and interpret statutory amendments to the military family leave provisions of the Family and Medical Leave Act (FMLA) made by the National Defense Authorization Act for FY 2010 (FY 2010 NDAA).
The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. An eligible employee may take up to 12 workweeks of FMLA leave in a 12-month period for the birth of a child or the placement of a child for adoption or foster care; to care for the employee’s spouse, son, daughter, or parent with a serious health condition; or for the employee’s own serious health condition. See Fact Sheet #28: The Family and Medical Leave Act - Overview for further information about the FMLA.
The FMLA was amended by the National Defense Authorization Act for Fiscal Year 2008 to add two special military family leave entitlements: (1) to permit an eligible employee who is 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 on active duty to take up to 26 workweeks of FMLA leave during a single 12-month period to care for the servicemember (military caregiver leave); and (2) to allow an eligible employee whose spouse, son, daughter, or parent is a member of the National Guard or Reserves 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 in support of a contingency operation (qualifying exigency leave).
The FY 2010 NDAA expanded the military caregiver leave provisions to entitle an eligible employee to take leave to care for certain veterans with a serious injury or illness incurred or aggravated in the line of duty on active duty and that manifested before or after the veteran left active duty, and to allow military caregiver leave for current servicemembers with serious injuries or illnesses that existed prior to service and that were aggravated by service in the line of duty on active duty. The FY 2010 NDAA also expanded the qualifying exigency leave provisions to entitle an eligible employee whose spouse, son, daughter, or parent is a member of the Regular Armed Forces to take qualifying exigency leave, and added a foreign deployment requirement for qualifying exigency leave for all military members (National Guard, Reserves, and Regular Armed Forces).
The Department’s Final Rule implements these expanded military family leave protections. Highlights of the Final Rule include:
- Expansion of the definition of a covered servicemember to include certain veterans. The Final Rule expands the 26-workweek military caregiver leave provision to include leave to care for covered veterans who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness incurred or aggravated in the line of duty on active duty and that manifested before or after the veteran left active duty.
- Definition of a covered veteran. The Final Rule defines a covered veteran as a veteran who has been discharged or released under conditions other than dishonorable within the five-year period preceding the date the employee first takes military caregiver leave to care for the veteran. For a veteran who was discharged before the effective date of this Final Rule, the rule excludes the period of time between October 28, 2009 (the FY 2010 NDAA’s enactment date) and the effective date of this Final Rule in calculating the veteran’s five-year period. By excluding this period of time, the Final Rule protects the military caregiver leave entitlement for the family members of veterans whose five-year period either expired or was diminished between October 28, 2009 and the effective date of this Final Rule, March 8, 2013.
- Definition of a serious injury or illness of a covered veteran. The Final Rule defines a serious injury or illness of a covered veteran as an injury or illness that was incurred by the veteran in the line of duty on active duty or that existed before the beginning of the veteran’s active duty and was aggravated by service in the line of duty on active duty, and that manifested itself before or after becoming a veteran, and is either: (1) a continuation of a serious injury or illness that was incurred or aggravated when the veteran was a member of the Armed Forces and rendered the servicemember unable to perform the duties of his or her office, grade, rank, or rating; or (2) a physical or mental condition for which the veteran has received a U.S. Department of Veterans Affairs Service-Related Disability Rating (VASRD) of 50 percent or greater, and the need for military caregiver leave is related to that condition; or (3) a physical or mental condition that substantially impairs the veteran’s ability to work because of a disability or disabilities related to military service, or would do so absent treatment; or (4) an injury, including a psychological injury, on the basis of which the veteran is enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers. The family member of a veteran only needs to show that the veteran meets one of these definitions to establish that the veteran has a serious injury or illness.
- Inclusion of pre-existing injuries or illnesses aggravated in the line of duty on active duty. The Final Rule expands military caregiver leave to cover current servicemembers with serious injuries or illnesses that existed before the servicemember’s active duty but were aggravated by service in the line of duty.
- Expansion of health care providers authorized to certify a current servicemember’s or veteran’s serious injury or illness. The Final Rule expands the list of health care providers who can provide a medical certification to support FMLA military caregiver leave for current servicemembers and covered veterans 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. The Final Rule retains the provisions that health care certifications obtained from health care providers associated with the military may not be subject to second and third opinions.
- Expansion of qualifying exigency leave for employees with family members in the Regular Armed Forces. The Final Rule expands the qualifying exigency leave entitlement to employees whose spouse, son, daughter, or parent serve in the Regular Armed Forces.
- Foreign deployment requirement. The Final Rule implements the new foreign country deployment requirement for qualifying exigency leave. The Final Rule defines deployment to a foreign country as deployment to areas outside of the United States, the District of Columbia, or any Territory or possession of the U.S. Deployment to a foreign country includes deployment to international waters.
- Increasing the amount of time an eligible employee may take qualifying exigency leave related to the military member’s Rest and Recuperation leave to a maximum of 15 calendar days. This leave may only be used while the military member is on Rest and Recuperation leave.
- Creating a new qualifying exigency category that allows an eligible employee to take FMLA leave for certain activities related to the care of the military member’s parent who is incapable of self-care where those activities arise from the military member’s deployment or impending deployment, such as arranging for alternate care for the parent; providing care for the parent on an urgent, immediate need basis; admitting or transferring the parent to a care facility; and attending certain meetings with staff at a care facility. The employee taking qualifying exigency leave for parental care does not need to be related to the military member’s parent. However, the military member must be the spouse, parent, son or daughter of the employee taking leave.
Certain changes to the categories of qualifying exigency leave, including:
The full text of the FMLA Final Rule can be found here.
The Final Rule is effective on March 8, 2013.
For additional information on the FMLA, including information on the military family leave entitlements, please visit www.dol.gov/agencies/whd/fmla.
For Information on the effective date, click here.
Military caregiver leave for a veteran will not be available until the effective date of the Final Rule on March 8, 2013