Lori Adelson

The U.S. Department of Labor has issued a notice of proposed rulemaking to implement recent statutory amendments to the Family Medical and Leave Act contained in the 2010 National Defense Authorization Act.

The proposed changes affect military servicemember leave and include new provisions for certain airline employees, who would otherwise be ineligible for leave. According to the DOL, the proposed regulations cover the following:

• a flexible, three-part definition for serious injury or illness of a veteran;
• the extension of military caregiver leave to eligible family members of recent veterans with a serious injury or illness incurred in the line of duty;
• the extension of military caregiver leave to cover serious injuries or illnesses for both current servicemembers and veterans that result from the aggravation during military service of a preexisting condition;
• the extension of qualifying exigency leave to eligible employees with covered family members serving in the Regular Armed Forces;
• inclusion of a foreign deployment requirement for qualifying exigency leave for the deployment of all servicemembers (National Guard, Reserves, Regular Armed Forces);
• the addition of a special hours of service eligibility requirement for airline flight crew employees; and
• the addition of specific provisions for calculating the amount of FMLA leave used by airline flight crew employees.

The DOL has created a web page containing links to the proposal, fact sheets, and more here.

Employers may comment on the draft regulations before April 16, 2012. For details on how to comment, see the Notice of Proposed Rulemaking here.

Obama signs legislation

The FMLA has been amended.  President Obama signed the National Defense Authorization Act of 2010 at 2:30 p.m. EST October 28.  The full text of Senate bill  signed by the President can be found here. Section 565 of the Act amends the FMLA by greatly expanding the availability and use of military family leave:

• Eligible employees will be able to take military caregiver leave to care for veterans who served in the regular Armed Forces, the Reserves within 5 years of the date the veterans undergoes medical treatment, recuperation, or therapy.  Currently, military caregiver leave is only available to care for current members of the Armed Forces, Guard, or Reserves.
• Military caregiver leave will be expanded to cover the aggravation of existing or preexisting injuries incurred in the line of duty while on active duty.  Currently, FMLA regulations issued by the Department of Labor exclude the aggravation of existing injuries incurred in the line of duty while on active duty as a basis for taking military caregiver leave.  An employee be entitled to take military caregiver leave more than once for the same covered servicemember only where the serious injury or illness rises to the level of a subsequent injury or illness.
• Qualifying exigency leave is expanded to cover members of the regular Armed Forces who are deployed to a foreign country.  Currently, qualifying exigency leave is only available for covered military members in the Reserves or Guard.
• The FMLA amendments will extend qualifying exigency leave to federal employees covered by Title II of the FMLA.  Currently, federal employees covered by Title II do not have the right to take qualifying exigency leave.

The new law requires the U.S. Department of Labor and Office of Personnel Management to work with the Department of Defense and the Veterans Administration in formulating regulations to carry out the amendments.  It is unclear whether the new FMLA amendments will go into effect immediately or whether they will not become effective until implementing regulations are issued.

The amendments greatly expand the availability and use of military family leave.  Employers will need to review and revise their FMLA leave policies to reflect the new military family leave amendments.  There may be additional expansions of the FMLA in short order as President Obama made campaign promises to extend FMLA coverage to more employers, and to cover more family members and for more activities (e.g., school functions).