• DOL Proposes a New Rule Expanding Leave Under the FMLA for Family Members of Those Serving in the Military
  • March 1, 2012 | Author: Patricia F. Weisberg
  • Law Firm: Walter & Haverfield LLP - Cleveland Office
  • On January 30, 2012, the Department of Labor announced a proposed rule that expands leave for military caregivers under the FMLA.

    The 2010 amendments to the FMLA allowed the family of regular Armed Forces members, in addition to family of Reserve and National Guard members, to take up to twelve weeks of job-protected leave in a twelve-month period for a "qualifying exigency" arising out of the active duty or call to active duty status of a spouse, son, daughter or parent. The proposed regulation clarifies that, for purposes of exigent leave related to child care and school activities, the military member must be the spouse, parent or child of the employee seeking leave, but the child for whom the leave is sought does not need to be the child of the employee requesting leave. For example, the DOL states that the employee may be the mother of the military member who may need qualifying exigency leave for child care and school activities for the military member's child (grandchild).

    In addition, in 2010, the FMLA extended qualifying exigency leave from families of Reserve and National Guard members to include eligible employees with family members serving in the regular Armed Forces, but it added the requirement that the military member must be deployed to a foreign country in order for eligible family members to take advantage of a leave for a qualifying exigency. The proposed rule updates the regulations to incorporate these changes.

    The proposed rule also clarifies the definition of "deployment to a foreign country," providing by way of example that deployment in international waters is deployment to a foreign country. It also seeks to expand, from 5 days to 15 days, the amount of FMLA leave an eligible employee would be able to take to spend with the covered military family member during rest and recuperation periods.

    The DOL is also proposing alternative definitions of "serious injury or illness" for veterans when a family member is taking leave to provide care for a covered veteran. The first proposed definition covers veterans whose serious injury or illness renders the servicemember unable to perform the duties of the servicemember's office, grade, rank or rating. This definition is similar to the definition used for active duty servicemember. The second proposed definition covers servicemembers who have received a Department of Veterans Affairs service-related disability rating of 50% or higher when the rating is at least, in part, based on the condition that has created a need for leave. The third proposed definition includes as a "serious injury or illness," a physical or mental impairment that: (i) substantially impairs the veteran's ability to secure or follow a gainful occupation due to the service-related disability; or (ii) would do so absent treatment.

    Finally, the proposed regulations make it clear that a military caregiver would be eligible to take military caregiver leave for the same servicemember both when the servicemember is on active duty and when the servicemember is a veteran.

    The DOL has posted a fact sheet on the proposal which can be found at:

    What you need to do now:

    The rules are still in proposed form; however, employers should review their FMLA policies to ensure they are up-to-date and reflect the current state of the law. Additionally, employers should assess whether they want to provide comments on the proposed rules to the DOL. The public comment period on these proposed rules will close 60 days after the proposed rules are officially published in the Federal Register.