On February 5, 2013, the Department of Labor announced the final rules for changes to the Family and Medical Leave Act (FMLA) permitted under the National Defense Authorization Act of 2010. From the time the act was passed until now, there has not been any final guidance for employers on the DOL’s position with respect to the changes to the law. Now, final rules which become effective March 8, 2013, are available to assist employers to properly handle service member leave.
Highlights to the changes are:
1. Putting more meat on the bone regarding coverage for “covered veterans” which previously were not protected under the act.
2. Providing guidance on what is considered a serious injury or illness for a covered veteran. Serious injury will include:
- A continuation of a serious injury or illness that was incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the service member unable to perform the duties of the service member’s office, grade, rank, or rating;
- A physical or mental condition for which the covered veteran has received a VA Service Related Disability Rating (VASRD) of 50 percent or greater and such VASRD rating is based, in whole or in part, on the condition precipitating the need for caregiver leave;
- A physical or mental condition that substantially impairs the veteran’s ability to secure or follow a substantially gainful occupation by reason of a disability or disabilities related to military service or would do so absent treatment; or
- An injury, including a psychological injury, on the basis of which the covered veteran has been enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.
3. Permitting eligible employees to obtain certification of a service member’s serious injury or illness (both current service members and veterans) from any health care provider as defined in the FMLA regulations, not only those affiliated with the DOD, VA, or TRICARE networks.
4. Extending “qualifying exigency” leave to eligible employees who are family members of members of the Regular Armed Forces (previously limited to National Guard and Reserves) and adding the requirement for all military members to be deployed to a foreign country (not previously required) in order for service member leave to apply under the FMLA.
5. Increasing the amount of time an employee may take for qualifying exigency leave related to the military member’s Rest and Recuperation (R&R) leave from five days to up to 15 days.
6. Creating an additional qualifying exigency leave category for parental care leave to provide care necessitated by the covered active duty of the military member for the military member’s parent who is incapable of self-care.
And, finally, outside the service member revisions, the new rules create a unique method of calculation of leave for airline flight crew employees.
What does this mean for employers? You need to update your policies and your thinking. If your FMLA policy in your handbook is specific enough to list the details of service member leave, it now will be out of date.