On February 6, 2013, the United States Department of Labor (DOL) marked the occasion of the 20th anniversary of the Family and Medical Leave Act (FMLA) by issuing a new rule expanding FMLA protections available to employees who serve in the military and their family members, among other changes.  The new rule became effective March 8, 2013.  In light of these revised and expanded regulations, employers should immediately review their FMLA polices to ensure that they are in compliance with the provisions of this rule.

The new rule provides military families with more opportunities to take leave for purposes related to activities arising from the deployment of a family military service member.  The rule extends FMLA leave to family members of military service members for “qualifying exigencies” arising from the family member’s deployment.  In relevant part, the rule:

  • Extends qualifying exigency leave to eligible employees who are family members of members of the regular armed forces. (Previously, such leave was only available to eligible employees with a family member in the National Guard or Reserves);
  • Requires that all military members must be deployed to a foreign country in order to be on “covered active duty” under the FMLA;
  • Increases to a maximum of 15 calendar days the time an eligible employee may take as qualifying exigency leave related to a military member’s rest and recuperation;
  • Creates a new qualifying exigency category that permits an eligible employee to take FMLA leave for certain activities relating to the care of a military service member’s parent who is incapable of self-care, when such care is necessitated by the covered active duty of a military member;
  • Allows military caregiver leave for current service members with a serious injury or illness that existed prior to service and that was aggravated by service in the line of duty while on active duty;
  • Allows eligible employees to take leave to care for certain covered veterans with a serious injury or illness incurred or aggravated in the line of duty while on active duty, which manifested before or after the veteran left active duty.

These new provisions would allow an eligible employee job-protected leave from work to attend a spouse’s farewell or welcome-home ceremony, make child-care arrangements, attend counseling or to make or update financial or legal arrangements arising from the military service member’s covered active duty service.  Of particular note, the rule increases the amount of leave, from five days to 15 days to spend time with a military service member who is on “Rest and Recuperation” leave.  However, such leave may only be used while the military service member is on such leave during covered active duty.

More information regarding the new rule, including a comparison of the new rule against the prior version, is available on DOL’s website.  Consistent with the new rule, DOL also updated the forms to be utilized by employers when certifying leaves made necessary by a qualifying exigency, a serious injury or illness of a current military service member, or a serious injury or illness of a veteran.  These revised and updated forms are available at DOL’s website.  Finally, DOL also updated the FMLA poster that all covered employers are required to display.  The new required poster may also be accessed on DOL’s website.

Employers covered by the FMLA should now take the time to review and become familiar with DOL’s new rule and ensure that their existing FMLA policies are up to date.  Of course, employers should also ensure that they have replaced their existing FMLA certification forms with the updated forms available at DOL’s website, and post the revised FMLA poster in their workplace if they have not already done so.