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New military caregiver leave rules continue FMLA expansion

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in FMLA Guidelines,Human Resources

by Michael M. Shetterly, Esq., Ogletree Deakins

The U.S. Department of Labor (DOL) has issued new regulations implementing statutory changes to the FMLA that increase coverage for military families.

The FMLA grants employees the right to take leave from work to deal with family and medical issues without fear of losing their jobs. Over the past several years, both Congress and the DOL have increased the scope of who may take FMLA leave.

First, as the wars in Iraq and Afghan­­is­­tan continued to slowly boil, Con­­gress created two new types of leave: military caregiver leave and qualifying exigency leave. Military caregiver leave was originally enacted to give leave to care for current members of the military who were injured. Qua­­li­­fy­­ing exigency leave made sure that the families of National Guard and Reserve members could take leave if stand-by forces were called to duty.

Congressional action

A few years ago, Congress amended the FMLA to broaden coverage for both military caregiver leave and qualifying exigency leave. Amend­­ments to the military caregiver rules allowed families to care for injured soldiers who were either actively serving or who had been discharged within the previous five years. Con­­­­gress also extended qualifying exigency leave to apply to any immediate family member of a soldier serving in a foreign country.

This meant that the law now applied to families of members of the regular U.S. Armed Forces in addition to members of the National Guard and Reserve.

Now the DOL has finally implemented the new statutes by issuing regulations that became effective on March 8.

Military caregiver leave

The new caregiver regulations implement the increase in coverage to veterans who are less than five years removed from military service.

What’s more, both the statute and the regulations now make clear that the injury or illness can be pre­existing and merely aggravated by military service. The injury or illness does not need to manifest itself during the individual’s service in the military, as long as it is deemed to have been caused by or aggravated by military service.

The injury or illness can be proven in one of several ways:

  • It is tied to an injury or illness incurred or aggravated in the line of duty, while on active duty, and it rendered the individual unable to perform his or her duties.
  • The individual’s U.S. Department of Veterans Affairs (VA) Service Disability Rating is 50% or greater.
  • A mental or physical condition substantially impairs the individual’s ability to obtain gainful employment.
  • The VA enrolls the individual in the Department of Veteran Affairs Program of Comprehensive Assist­­ance for Family Caregivers.

The certification can now be completed by any health care provider. If the physician is not a military doctor or connected with the military (for example, through TRICARE health coverage), then the employer has a right to a second opinion.

Qualifying exigency leave

Qualifying exigency leave applies to employees who have a spouse, child ­­or parent in any branch of the U.S. armed forces if that family member is deployed in a foreign country.

The leave can be used for all the reasons described in the 2009 regulations, but also to care for the military member’s parent who may be incapable of self-care.

The regulations expanded the amount of leave an employee can take to be with his or her family member while on rest and recuperation leave. The amount of leave has now been expanded from five days to a maximum of 15 calendar days.

Final note: The new DOL regulations also extended the FMLA protections available to airline flight attendants, who previously found themselves excluded from the FMLA on a regular basis because of the way eligibility was calculated.

Online resource: FMLA and adult children

New military caregiver regulations aren’t the only FMLA arena in which the DOL has been active lately. In January, it issued guidance on when employees are entitled to take FMLA leave to care for adult children with serious health conditions. For details, see "New DOL guidance on FMLA leave to care for adult children."

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Contact Ogletree Deakins shareholder Michael M. Shetterly at (864) 271-1300 or mike.shetterly@ogletreedeakins.com.

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