FMLA

Parental Leave for Military Families

On February 6, 2013, The Department of Labor 's, Wage and Hour Division issued The Final Rule of the Family and Medical Leave Act which expands protections for military families and airline flight crews and became effective on March 8, 2013.

The  Final Rule  amends certain regulations of the Family and Medical Leave Act of 1993 (FMLA) to implement amendments to the military leave provisions of the FMLA made by the National Defense Authorization Act of Fiscal Year 2010 (NDAA) which extends the availability of FMLA leave to family members of members of the Regular Armed Forces for qualifying exigencies arising out of the service member's deployment and also amends the regulations to implement the Airline Flight Crew Technical Corrections Act (AFCTCA), which establishes eligibility requirements specifically for airline flight crewmembers and flight attendants for FMLA leave and authorizes the Department to issue regulations regarding the calculation of leave for such employees as well as special recordkeeping requirements for their employers. For more information on the AFCTCA go to the Department of Labor's, Wage Hour Division website, www.dol.gov/whd)

The changes implemented to incorporate the NDAA into the FMLA are:

·         Clarifies, that for purposes of leave for childcare and school activities, the child must be the military member's child or a child for whom the military member stands in loco parentis.

·         Expands qualifying exigency leave to include eligible employees with family members serving in the Regular Armed Forces and the addition of the foreign deployment requirements. 

·         Expands military caregiver leave to cover injuries or illnesses that existed prior to the service member's active duty and were aggravated in the line of duty on active duty in the Armed Forces. 

·         Further expands the military caregiver leave provisions to provide leave to eligible family members of certain veterans with a serious injury or illness who are receiving medical treatment, recuperation, or therapy, 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.  Serious injury or illness for a veteran is defined as a "qualifying injury or illness that was incurred by the member in the line of duty on active duty in the Armed forces (or existed before the beginning of the member's active duty and was aggravated by service in the line of duty on active duty in the Armed Forces) and that manifested before or after the member becomes a veteran."

The definition of serious injury or illness was expanded to include pre-existing injuries or illnesses of current service members that were aggravated in the line of duty, and expands military caregiver leave to care for covered veterans.  A covered veteran is an individual who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness and who was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran.  The five-year period excludes the period between the enactment of the FY 2010 NDAA on October 28, 2009 and March 8, 2013, the effective date of this Final Rule to protect the military caregiver leave entitlement of family members of veterans whose five-year period has either expired or has been diminished during that time.

A Serious Injury or Illness of a covered veteran is:

i.        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;

ii.      A physical or mental condition for which the covered veteran has received a U.S. Department of Veterans Affairs Service Related Disability Rating (VASRD) of 50 percent or higher, and such VASRD rating is based, in whole or in part, on the condition precipitating the need for military caregiver leave; 

iii.    A physical or mental condition that substantially impairs the covered 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

iv.    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.

·         Increases the length of time an eligible family member may take for the qualifying exigency leave reason of Rest and Recuperation from five days to a maximum of 15 days.  Leave may be taken in a continuous block of time or intermittently over the duration of the military member's Rest and Recuperation leave.  However, it must be taken during the period of time indicated on the Rest and Recuperation orders.

·         Created a new qualifying exigency leave category Parental Care.  

The military member must be the spouse, parent, son, or daughter of the employee requesting qualifying exigency parental care leave.  In the case of parental care leave, the parent in need of care must be the military member's parent or a person who stood in loco parentis to the military member when the member was less than 18 years old.  Leave may be used for:

i.         Arranging for alternative care for a parent of the military member when the parent is Incapable of Self-Care and the covered active duty or call to covered active duty status of the military member necessitates a change in the existing care arrangements;

ii.      Providing care for a parent of the military member on an urgent, immediate need basis (but not on a routine, regular, or everyday basis) when the parent is Incapable of Self-Care and the need to provide such care arises from the covered active duty or call to covered active duty status of the military member;

iii.    Admitting or transferring a parent of the military member to a care facility when the admittance or transfer is necessitated by the covered active duty or call to covered active duty status of the military member; and,

iv.    Attending meetings with staff at a care facility for the parent of the military member, such as meetings with hospice, or social service providers, when such meetings are necessitated by the covered active duty or call to covered active duty status of the military member (but not for routine or regular meetings).   

Incapable of Self-Care means that the parent requires active assistance or supervision to provide daily self-care in three or more of the "activities of daily living" or "instrumental activities of daily living," Activities of daily living include, but are not limited to, adaptive activist such as caring appropriately for one's grooming and hygiene, bathing, dressing, and eating.  Instrumental activities of daily living include, but are not limited to, cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using a telephone, and directories, using a post office, etc.

For more details go to the Department of Labor's Wage and Hour Division website.