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March 06, 2013 | Leave a Comment
On February 6, 2013, the U.S. Department of Labor (“DOL”) published a Final Rule implementing certain changes to the Family and Medical Leave Act (“FMLA”). These changes take effect on March 8, 2013.
The Final Rule primarily focuses on military leave and military caregiver leave. The March 8th changes expand FMLA coverage for qualifying veterans, extends exigency leave for military members, and creates a special hours of service requirement to bring certain airline personnel within the FMLA’s eligibility criteria. Employers subject to FMLA requirements (those with 50 or more employees) are required to post the updated FMLA Poster in a location visible to all employees.
The key points include:
- Expanded coverage to include caregivers of qualifying veterans discharged or released within five years of the need for caregiver leave, provided the veteran was not dishonorably discharged;
- Allows any approved healthcare provider to certify a service member’s injury or illness rather than restricting certification to DOD, VA or TRICARE providers;
- Amends the definition of serious injury or illness of a covered veteran and provides four qualifying alternatives (see below);
- Extends qualifying exigency leave to eligible employees with family members in any branch of the Armed Forces;
- Increases the amount of qualifying military exigency leave from 5 to 15 calendar days;
- Modifies the work hour threshold for airline flight crews to account for the special way flight crew hours are counted.
The Final Rule expands the definition of a serious injury or illness to include four alternatives, only one of which must be satisfied for coverage. The four alternatives are:
- A continuation of a serious injury or illness that was incurred or aggravated when the veteran was a member of the Armed Forces, rendering the service member unable to perform his or her duties;
- 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 higher, if based on the specific condition;
- A physical or mental condition that substantially impairs the veteran’s ability to secure a gainful occupation as a result of disability related to military service; or
- An injury, including psychological injury, on the basis of which the veteran has been enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.
The Final Rule also extends qualifying exigency leave to eligible employees who have family members in any branch of the Armed Forces. Previously, exigency leave was limited to eligible employees with family members in the National Guard and Reserves. Exigency leave allows family members extra time to handle the exigencies involved with foreign deployment, such as financial, legal, and childcare arrangements, and also provides bonding time for military members on rest and recuperation leave. The maximum amount of time an employee may take under this type of leave also will increase from 5 to 15 calendar days.
In addition, the U.S. Department of Labor’s Wage and Hour Division (WHD), has issued an interpretation regarding a son or daughter with a disability. According to Administrator’s Interpretation No. 2013-1, the WHD clarifies that the age of a son or daughter at the onset of a disability is not relevant in determining the parent’s entitlement to FMLA leave.