United States: Update Your Family And Medical Leave Act Policy And Use The New FMLA Poster And Forms By March 8, 2013

Last Updated: February 27 2013
Article by Anthony J. Rao

On February 5, 2013, the Department of Labor finalized the new Family Medical Leave Act regulations.  The new regulations provide families of eligible veterans with the same FMLA leave currently available to families of military servicemembers, and change certain definitions related to leave under the FMLA.  The regulations also enable more military families to take leave for activities that arise when a servicemember is deployed.  Finally, the new regulations mandate the use of a new FMLA poster and forms.

A "covered veteran" is an individual who was discharged or released (not dishonorably) any time during the five-year period prior to the time an employee takes leave to care for the "covered veteran."  The employee's first date of leave must be within the five-year period; however, the employee may continue to take such leave throughout the "single 12-month period" that is applicable to military caregiver leave, even if the leave extends beyond the five-year period.  For a veteran who was discharged before March 8, 2013, the final rule excludes the period of time between October 28, 2009 (the enactment of the legislation) and March 8, 2013 in calculating the veteran's five-year period.  For example, if a servicemember retired on October 28, 2007, on October 28, 2009 he or she would have had three years remaining of the five-year period.  The family member will have three years, starting on March 8, 2013, within which he or she can begin to take military caregiver leave to care for the veteran. 

The FMLA definitions of "serious injury or illness" for current servicemembers and veterans "are distinct from the FMLA definition of 'serious health condition.'"  The final rule expands the definition of serious injury or illness for current servicemembers to include preexisting conditions that were aggravated by service in the line of duty on active duty.  The final rule defines a serious injury or illness for a covered veteran as an injury or illness that was incurred by the veteran in the line of duty on active duty in the Armed Forces or that existed before the veteran's active duty and was aggravated by service in the line of duty on active duty, and that manifested before or after becoming a veteran, and that is:

  1. A continuation of a serious injury or illness that was incurred or aggravated when the veteran was a member of the Armed Forces and rendered the servicemember unable to perform the duties of the servicemember's office, grade, rank, or rating; or
  2. 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 greater, and the need for military caregiver leave is related to that condition; or
  3. A physical or mental condition that substantially impairs the veteran's ability to work because of a disability or disabilities related to military service, or would do so absent treatment; or
  4. An injury, including a psychological injury, on the basis of which the veteran is enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers. 

Additionally, airline flight crew employees will have greater access to the FMLA and a special method of calculating leave.  The final rule provides that an airline flight crewmember or flight attendant will meet the FMLA hours of service eligibility requirement if he or she has worked or been paid for not less than 60 percent of the applicable total monthly guarantee (or its equivalent) and has worked or been paid for not less than 504 hours (not including personal commute time or time spent on vacation, medical, or sick leave) during the previous 12 months.  Airline employees who are not flight crew employees continue to be covered under the general hour of service eligibility requirement which requires 1,250 hours of service in the previous 12 months.  Eligible airline flight crew employees are entitled to 72 days of leave during any 12-month period for FMLA-qualifying reasons other than military caregiver leave, and 156 days of leave during any single 12-month period for military caregiver leave.  In addition to the existing FMLA recordkeeping requirements, covered employers of airline flight crew employees must maintain other required records. 

Military caregiver leave for veterans, qualifying exigency leave for parental care, and the special leave calculation method for flight crew employees are not effective until March 8, 2013.  (The expansion of qualifying exigency leave to families of members of the Regular Armed Forces and the special eligibility hours of service requirement for flight crew employees became effective on February 15, 2012). 

A helpful side-by-side comparison of the 2008 regulations and the 2013 regulations can be found here

The new poster is found here.

The new forms can be found here.

This article is for general information and does not include full legal analysis of the matters presented. It should not be construed or relied upon as legal advice or legal opinion on any specific facts or circumstances. The description of the results of any specific case or transaction contained herein does not mean or suggest that similar results can or could be obtained in any other matter. Each legal matter should be considered to be unique and subject to varying results. The invitation to contact the authors or attorneys in our firm is not a solicitation to provide professional services and should not be construed as a statement as to any availability to perform legal services in any jurisdiction in which such attorney is not permitted to practice.

Duane Morris LLP, a full-service law firm with more than 700 attorneys in 24 offices in the United States and internationally, offers innovative solutions to the legal and business challenges presented by today's evolving global markets. Duane Morris LLP, a full-service law firm with more than 700 attorneys in 24 offices in the United States and internationally, offers innovative solutions to the legal and business challenges presented by today's evolving global markets. The Duane Morris Institute provides training workshops for HR professionals, in-house counsel, benefits administrators and senior managers.

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