The 2010 defense spending bill amended theby expanding the law’s military exigency and caregiver leave provisions to include more employees and cover veterans. Final regulations issued by the Department of Labor (DOL) implement these provisions and make some additional clarifying changes to the FMLA regs in general. The regs became effective March 8, 2013. (78 F.R. 8833, 2-6-13)
The FMLA’s military caregiver leave provisions allow eligible employees who are service members’ spouses, children, parents or next of kin to take up to 26 weeks of unpaid leave during a 12-month period to care for them.
The final regs expand the 26-week military caregiver leave provision to include covered veterans who are undergoing medical treatment, recuperation or therapy for a serious injury or illness sustained or aggravated in the line of duty, which became apparent before or after they left active service. Covered vets are those who received discharges (other than dishonorable discharges) at any time during the five-year period prior to the first date employees take FMLA caregiver leave.
COUNT CAREFULLY: The period between the enactment of the 2010 defense spending bill (Oct. 28, 2009) and the regs’ effective date (March 8, 2013) doesn’t count when determining the five-year period. Key: While caregiver leave must begin within five years of vets’ active service, the single 12-month period for employees may extend beyond that five-year period.
For current service members, the regs similarly expand the definition of a serious injury or illness to include pre-existing injuries or illnesses that were aggravated by active duty.
For both vets and current service members, in addition to certifications presented by military personnel, employees may now present certifications from health care providers who aren’t associated with the Department of Defense, the Department of Veterans Affairs or TRICARE. On the other hand, employers may require employees who submit certifications by nonmilitary providers to get second (or third) opinions, which was never allowed before.
Under the FMLA, employees may take up to 12 weeks of exigency leave. The regs expand exigency leave beyond the National Guard and Reserves to include service members of the regular military, but limit leave to service members who are deployed to a foreign country. In addition to the eight categories of exigency leave, a new category is created for parental-care leave. This leave applies when a service member’s parent is incapable of self-care, and the care is necessary because of the member’s call to active duty (e.g., arranging for alternative care).
The regs expand the length of time employees may take for rest and recuperation leave to 15 days, up from five days. The list of information for certification of R&R leave now includes a copy of the service member’s R&R leave orders or other documents listing the member’s leave dates.
The final regs clarify thethat employees are allowed to take time off intermittently, by specifying that employees can’t be required to take more leave than necessary, and that leave may only be counted against employees’ entitlement for leave taken, and not for time worked. If you track leave in varying increments at different times of the day or shift, you must track FMLA leave using the smallest increment of time used for other forms of leave, subject to the one-hour maximum.
NEW POSTER: You’re required to post a notice regarding employees’ Employers: Display updated FMLA poster by March 8.". The DOL has updated its poster to conform to these regulations. The new poster is downloadable at "
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