Military family leave, enacted in 2009, provides for two forms of Family Medical Leave Act (FMLA) leave benefits related to military service: Qualifying Exigency and Military Caregiver Leave. On February 5, 2013, on the twentieth anniversary of the FMLA, the U.S. Department of Labor (DOL) issued a Final Rule expanding FMLA protections. One of the expansions provides families of eligible veterans with the same job-protected FMLA leave currently available to families of military service members. The expansion also enables more military families to take leave for activities that arise when a service member is deployed. The expansions will go into effect March 8, 2013.
Current FMLA Military Family Leave Benefits:
FMLA Qualifying Exigency Leave:
- A non-medical activity that is directly related to the covered military member’s active duty or call to active duty
- Seven categories of qualifying exigencies include:
- Short notice deployment
- Military events and related activities
- Childcare and school activities
- Financial and legal arrangements
- Rest and recuperation
- Post-deployment activities
FMLA Military Caregiver Leave:
- Twenty-six workweeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness.
- Employee must be the son, daughter, spouse, parent or the “next of kin” of the covered service member
The 2013 Final Rule highlights include:
- Expansion of the definition of a covered service member: Includes veterans who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness incurred or aggravated in the line of duty on active duty and that manifested before or after the veteran left active duty.
- Definition of a covered veteran: The Final Rule defines a covered veteran as a veteran who has been discharged or released under conditions other than dishonorable within the five-year period preceding the date the employee first takes military caregiver leave to care for the veteran.
- Inclusion of Pre-Existing Injuries: Expands the military caregiver leave provision to provide leave to eligible family members if the veteran was a member of the Armed Forces at any time during the period of five years preceding the date of the medical treatment, recuperation, or therapy.
- Expansion of qualifying exigency leave for employees with family members in the Regular Armed Forces: The Final Rule expands the qualifying exigency leave entitlement to employees whose spouse, son, daughter, or parent serve in the Regular Armed Forces, and incorporates the statutory requirement that the military member, whether in the Regular Armed Forces or the Reserve components, must be deployed to a foreign country.
- Certain changes to the categories of qualifying exigency leave, including:
- Increasing the amount of time an eligible employee may 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 allows an eligible employee to take FMLA leave for certain activities related to the care of the military member’s parent who is incapable of self-care where those activities arise from the military member’s deployment or impending deployment, such as arranging for alternate care for the parent; providing care for the parent on an urgent, immediate need basis; admitting or transferring the parent to a care facility; and attending certain meetings with staff at a care facility.
- Expansion of health care providers authorized to certify a current service member’s or veteran’s serious injury or illness: The Final Rule expands the list of health care providers who can provide a medical certification to support FMLA military caregiver leave to include health care providers who are not affiliated with the military.
- If a medical certification is obtained from a non-military affiliated health care provider, the employer may request a second (or third) opinion from the employee. The Final Rule retains the provisions that healthcare certifications obtained from healthcare providers associated with the military may not be subject to second and third opinions.