On February 6, 2013, the U.S. Department of Labor ("DOL") issued a revised set of regulations interpreting the Family and Medical Leave Act ("FMLA"), the federal law granting eligible employees a right to take leaves of absence for certain family and medical reasons. After the DOL issued its last revisions to the FMLA regulations in 2008, Congress amended the FMLA to change the provisions relating to military family leave and to add provisions granting leave rights to airline flight crews who, because of the nature of their employment, often had not qualified for FMLA leave. The new revisions to the FMLA regulations are designed primarily to implement these statutory changes.
The Revised FMLA Regulations
The FMLA grants eligible employees the right to take up to 12 weeks of leave in a 12-month period because of "qualifying exigencies" relating to the military service of an employee's parent, child or spouse. Originally, this provision applied only to military service in the National Guard or a reserve unit of the armed forces, but a 2009 statutory amendment expanded this provision to cover service in the regular armed forces as well, while restricting its scope to military service involving deployment to a foreign country. The revised regulations incorporate these changes and define "deployment to a foreign country" to include deployment to international waters. The revised regulations also make certain changes to the list of qualifying exigencies for which leave may be taken. For example, they expand the amount of time available for leaves taken by an employee in connection with a service member's rest and recuperation leave from five days to 15 days and add a new type of qualifying exigency – care for the parent of a service member when the parent is incapable of self-care.
The FMLA also grants eligible employees the right to take up to 26 weeks of leave during a single 12-month period to care for a member of the armed forces with a service-related serious injury or illness. In 2009, Congress amended this provision to add leave rights to care for veterans undergoing treatment, recuperation or therapy for a serious injury or illness (as defined by the DOL) related to military service and to expand the concept of "serious injury or illness" to cover pre-existing conditions aggravated during active military duty as well as conditions originally incurred during active duty. The revised FMLA regulations incorporate these changes and define a veteran's serious injury or illness for the first time. The DOL takes the position that the statutory provision authorizing FMLA leave to care for a veteran with a serious injury or illness does not become effective until the March 8, 2013 effective date of the new regulatory revisions defining a veteran's serious injury or illness. Therefore, the DOL asserts that any leave an employer may have granted to an employee to care for a veteran with a service-related serious injury or illness between the enactment of the statutory amendments on October 28, 2009 and the March 8, 2013 effective date of the new regulations does not constitute FMLA leave and cannot be counted against an employee's leave entitlements under the FMLA.
The statutory provision authorizing leave to care for a veteran undergoing treatment, recuperation, or therapy for a serious injury or illness is limited to veterans who left the military no more than five years before the treatment, recuperation or therapy. The revised regulations specify that an eligible employee is entitled to take up to 26 weeks of FMLA leave to care for a veteran with a serious injury or illness as long as the veteran has not been released from the military for more than five years as of the first day of the leave. Moreover, the regulations provide that the period between the October 28, 2009 enactment of the FMLA amendments adding leave to care for a veteran and the March 8, 2013 effective date of the new regulations may not be counted in determining whether a veteran has reached the five-year limit.
The final regulations expand the list of health care providers who may provide a medical certification supporting a request for leave to care for a service member or veteran and permit employers to obtain a second and third medical opinion in certain circumstances in connection with a medical certification provided by a health care provider who is not affiliated with the Department of Defense, the Department of Veterans Affairs, or the TRICARE military medical services network. The DOL has also revised the medical certification form for service member care leave and has issued for the first time a medical certification form for leave to care for a veteran with a serious injury or illness. These forms, along with a newly revised certification form for qualifying exigency leave, can be found at http://www.dol.gov/whd/fmla/.
The revised regulations also implement the 2009 statutory amendments designed to make it easier for airline flight crews to qualify for FMLA leave. In addition to incorporating the statutory flight crew eligibility standards into the FMLA regulations, the DOL added a provision requiring airline employers to use an increment of no more than one day in accounting for a flight crew member's use of FMLA leave on an intermittent or reduced schedule basis. The revised regulations also include special recordkeeping requirements for employers of airline flight crews.
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