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February 2013

Expansion of FMLA Rights for Family Members of Military Personnel

In a new rule published February 6, 2013, the U.S. Department of Labor (DOL) expanded the Family and Medical Leave Act regulations concerning leave available to families of military service members. The primary changes include the following:

• Permitting eligible employees to obtain certification of a service member’s serious injury or illness from any health care provider as defined in the FMLA regulations, not just from those affiliated with the Department of Defense, Department of Veterans Affairs, or TRICARE networks.

• Extending "qualifying exigency" leave to eligible employees who are family members of members of the regular armed forces and adding the requirement for all military members to be deployed to a foreign country in order to be on “covered active duty” under the FMLA. (Deployment to disaster areas, such as the tri-state area after Hurricane Sandy, would not qualify as active duty.)

• Increasing the amount of time an employee may take for qualifying exigency leave related to the military member's rest and recuperation leave from five days to up to 15 days.

• Expanding the definition of “serious injury” or “illness” for current service members to include pre-existing injuries or illnesses that were aggravated in the line of duty.

• Discussing the rights of veterans in addition to active personnel. The new rule defines a “covered veteran” as 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.

• Expanding the definition of a “serious injury or illness of a covered veteran” to include: (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.

The expansion of rights of veterans in addition to active personnel may significantly expand the scope of the caregiver rights, particularly since psychological injuries — such as post-traumatic stress disorder — may take years to manifest. As a result of this change, we may begin to see many more employees seek leave under the caregiver provisions, meaning six months of time away from work to care for a returned veteran.

The new rule, which includes regulations on FMLA rights in addition to leave for families of military service members, can be reviewed here.

In addition, all covered employers (those with 50 or more employees) are required to display and keep displayed a poster prepared by the DOL summarizing the major provisions of the FMLA and telling employees how to file a complaint. The poster must be displayed in a conspicuous place where employees and applicants for employment can see it. A poster must be displayed at all locations even if there are no eligible employees. The new poster must be posted no later than March 8 and can be downloaded here.

Employment Law

Mark A. Saxon

Employment Law