DOL Celebrates FMLA’s 20th Anniversary with New Regulations

Written by Robert G. Brody and Rebecca Goldberg on February 12, 2013

The federal Family and Medical Leave Act (“FMLA”) turned 20 years old on February 5, 2013.  In celebration, the U.S. Department of Labor (“DOL”) issued new regulations.  The new regulations cover 1) leave related to members or veterans of the military and 2) leave for airline flight crew employees.  This article focuses on the former.

If you are covered by FMLA, there are circumstances in which you must provide leave to an employee whose spouse, child, or parent is a servicemember or veteran of the United States military.   Many of these provisions were enacted over the past few years, but have been modified by these new regulations.  These leaves are divided into two categories: Qualifying Exigency Leave and Military Caregiver Leave.  As with all FMLA leaves, there is no requirement that these be paid.  However, employers must generally protect the employee’s job during the leave period, as they would with other FMLA leaves.

Qualifying Exigency Leave

Qualifying Exigency Leave applies when an eligible employee’s spouse, child, or parent is deployed to a foreign country as part of his or her service in the Regular Armed Forces (Army, Navy, etc.) or the National Guard and Reserves, subject to some limitations.  Prior to these regulations, there was no requirement that National Guard and Reserves members be deployed internationally in order to be eligible for this leave.

Under this provision, employees must be allowed to take leave to address the military member’s absence, such as making alternative child care arrangements for a child of the military member, attending military ceremonies, making financial and legal arrangements pertaining to the military member’s absence, and to spend time with the military member when he or she is on “rest and recuperation” leave from military service.  The new regulations expand the amount of leave permitted to spend time with a military member on “rest and recuperation” leave from five days to fifteen days.  In addition, the new regulations now allow an employee to take leave to care for a military member whose parent is not capable of self-care, provided the need for coverage is caused by the military member’s departure.  For example, an employee may take leave to care for his wife’s infirm mother when the wife normally provided care but is now deployed internationally.

Military Caregiver Leave

The FMLA allows employees to take leave to care for a spouse, child, parent, or next of kin of a “covered servicemember.”  The new regulations expand the definition of “covered servicemember” to include not only current members of the Regular Armed Forces and the National Guard and Reserves, but also veterans.  The veteran must have been released from military service within the previous five years, but cannot have been dishonorably discharged.  When a covered servicemember is undergoing treatment for a serious medical condition, a spouse, child, parent, or next of kin may take FMLA leave to care for that person.

Eligibility for Leave

In order to be eligible for FMLA leave, military-related or otherwise, an employee must have been employed at the same employer for 12 months and have worked at least 1,250 hours for that employer in the immediately preceding 12 months.  The new regulations provide that when an employee misses work for reasons covered by The Uniformed Services Employment and Reemployment Rights Act (“USERRA”), that time counts as hours worked toward the 1,250-hour threshold for FMLA eligibility.

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This is just a brief overview of an employer’s obligation to provide FMLA leave for military-related reasons.  The regulations are rather detailed and each case will need to be evaluated on an individual basis.

Brody and Associates regularly advises on compliance with the FMLA and on employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More