FMLA Protections Expanded for Military Families

Posted in Employment Law

The U.S. Department of Labor recently celebrated the 20th anniversary of the signing of the Family and Medical Leave Act by issuing a final rule implementing important expansions of FMLA protections. One expansion provides families of eligible veterans with the same job-protected FMLA leave currently available to families of military service members. It also enables more family members to take leave for activities that arise when a service member is deployed.

The final rule, effective March 8, 2013, implements congressional amendments to the FMLA permitting eligible workers to take up to 26 work weeks of leave to care for a current service member with a serious injury or illness. Congress also created qualifying exigency leave, which permits eligible employees to take up to twelve work weeks of leave for qualifying exigencies arising out of active duty or called to active duty in support of a contingency operation for family members serving in the National Guard or Reserves. This means that workers can attend both farewell and welcome home ceremonies, as well as spend time with a family member on leave from active duty service, without being penalized at work.

The major provisions of the final rule applicable to service members include:

  • Defining a covered veteran, consistent with statutory limitations, as limited to veterans discharged or released under conditions other than dishonorable 5 years prior to the date the employee’s military career leave begins.
  • Creating a flexible definition for serious injury or illness of a covered veteran, that includes four alternatives, only one of which must be met.
  • Permitting eligible employees to obtain certification of a service member’s serious injury or illness (both current service members and veterans) from any health care provider as defined in the FMLA regulations.
  • Extending qualifying exigency leave to eligible employees who are family members of members of the Regular Armed Forces and adding the requirement for all military members to be deployed to a foreign country in order to be on “covered active duty” under the FMLA.
  • Increasing the amount of time an employee may take for qualifying exigency leave related to the military member’s Rest and Recuperation (R & R) leave from 5 up to 15 days.
  • Including an additional qualifying exigency leave category for parental care leave to provide care necessitated by the covered active duty of the military member for the military member’s parent who is incapable of self care.

While these changes may only affect a narrow section of your work force, you need to be aware of those that impact and broadly expand the scope of leave for service members and family of service members. You should also visit the U.S. Department of Labor website http://www.dol.gov/whd/fmla to obtain copies of the revised FMLA leave forms and the updated FMLA poster required for your workplace.

Scott Brown

Scott Brown

Scott J. Brown is a partner in the firm’s Chicago office whose practice includes representing small businesses and health care institutions in the defense of employment law claims alleging wrongful termination, discrimination, violation of Title VII and Family Medical Leave Act interference/retaliation.