• U.S. Department of Labor Issues Final Regulations Regarding FMLA’s Qualifying Exigency and Military Caregiver Provisions
  • February 12, 2013 | Author: David J. Freedman
  • Law Firm: Barley Snyder - Lancaster Office
  • On February 5, 2013, the United States Department of Labor issued final regulations implementing amendments to the Family Medical Leave Act (“FMLA”).  These amendments, passed by Congress in 2008 and 2010, created—and then expanded—two classes of military-related FMLA leave: “Qualifying Exigency Leave,” and “Military Caregiver Leave.”  Below is a list of the new regulations’ highlights:

    Qualifying Exigency Leave

    • The definition of a “qualifying exigency” now includes service in the regular armed forces, as well as service in the National Guard or Reserves.  To trigger Qualifying Exigency Leave, however, service must involve deployment to a foreign country.

    • The regulations add a new leave-triggering “qualifying exigency” for employees who must care for the parent of a military member on overseas deployment.

    • The regulations also expand, from five to 15 days, the amount of time an employee may take to spend with a covered military member who is on rest-and-recuperation leave.  Employers, however, may require that employees provide a copy of the military service member’s leave orders, or other similar documentation, to certify the leave.

    Military Caregiver Leave

    • Employees are now permitted to take FMLA leave to care for a veteran discharged from service (other than dishonorably) during the five-year period prior to the leave. The period between October 28, 2009 and March 8, 2013 must not be counted toward the five-year limit, which means that, currently, leave may be taken to care for veterans discharged since approximately October 2003.

    • Leave may be taken to care for a covered service member/veteran whose serious health condition arose either before or after military service, if (1) military service aggravated the injury or illness, (2) the service member/veteran has received a 50% or greater VA Service Related Disability Rating, (3) the physical or mental condition impairs the service member/veteran’s ability to secure or maintain employment, or (4) the service member/veteran has been enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.

    • Previously, only certain health care providers associated with the U.S. Department of Defense and the U.S. Department of Veterans Affairs (“VA”) could certify the need for service member caregiver leave.  Now, any FMLA-qualified health care provider can fill out the certification form.

    • In lieu of providing the FMLA certification form, an employee may now provide documentation establishing his/her enrollment in the VA’s Program of Comprehensive Assistance for Family Caregivers.  Such documentation is sufficient even if the employee is not the caregiver named in the document, although the employer may require confirmation of the employee’s relationship to the covered service member or documentation of the veteran’s discharge date and status.

    The final regulations become effective March 8, 2013.  Employers should update their FMLA policies now to reflect these regulatory changes, and start using the new FMLA certification forms found at http://www.dol.gov/whd/fmla/index.htm#Forms.