Executive Summary: The Department of Labor (DOL) published a Final Rule implementing the changes to the Family and Medical Leave Act (FMLA) made by the 2010 National Defense Authorization Act (NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA). The AFCTCA amended the FMLA to incorporate a special eligibility provision for airline flight crewmembers and flight attendants.
The 2010 NDAA, among other things, amended the FMLA's military caregiver leave provision to permit eligible employees to take leave to care for certain veterans with a serious injury or illness incurred or aggravated in the line of duty on active duty, which manifested before or after the veteran left active duty, and to allow military caregiver leave for current service members with a serious injury or illness that existed prior to service and that was aggravated by service in the line of duty on active duty. The NDAA also expanded the qualifying exigency provision to permit eligible employees to take qualifying exigency leave for covered family members in the Regular Armed Forces and added a foreign deployment requirement for qualifying exigency leave for all military members (National Guard, Reserves, and Regular Armed Forces).
The DOL's Final Rule implements and interprets these amendments and makes certain additional clarifying changes. FordHarrison attorneys will be providing a more detailed analysis of the amendments pertaining to the NDAA and the AFCTCA; however, some of the more significant provisions relating to the NDAA revisions include:
- Clarifying that while the qualifying exigency leave provision of the 2010 NDAA was effective on October 28, 2009, the military caregiver leave provision to care for a covered veteran does not take effect until the effective date of the Final Rule (March 8, 2013). Thus, the DOL takes the position that any leave to care for a veteran voluntarily provided by an employer before March 8, 2013 that does not otherwise qualify as FMLA leave to care for a family member with a serious health condition is not FMLA-protected and does not count against an employee's FMLA entitlement.
- Defining covered veteran as a veteran discharged or released under conditions other than dishonorable within the five-year period prior to the date the employee's military caregiver leave began.
- Clarifying that, for a veteran who is discharged before the effective date of the Final Rule (March 8, 2013), the calculation of this five-year period excludes the period of time between October 28, 2009 (the 2010 NDAA's effective date) and March 8, 2013.
- Providing four alternatives for the definition of serious injury or illness of a covered veteran, only one of which must be met.
- Increasing the amount of time an employee can take qualifying exigency leave related to the military member's Rest and Recuperation to a maximum of 15 calendar days. This leave may only be used while the military member is on Rest and Recuperation leave.
- Creating a new qualifying exigency category that permits an eligible employee to take FMLA leave for certain activities relating to the care of a military member's parent who is incapable of self-care, when the care is necessitated by the covered active duty of a military member.
The Final Rule was published in the February 6, 2013 issue of the Federal Register, available at: http://www.gpo.gov/fdsys/pkg/FR-2013-02-06/pdf/2013-02383.pdf. More information regarding the rule, including a side-by-side comparison of the new rule with the prior version, frequently asked questions and a fact sheet, is available on the DOL's web site at: http://www.dol.gov/WHD/fmla/2013rule/.
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