On February 6, 2013, the Department of Labor’s Wage and Hour Division (“WHD”) issued a Final Rule which amends the Family and Medical Leave Act (“FMLA”). The Final Rule primarily impacts leave for military service members and becomes effective on March 8, 2013. The WHD published a new poster in connection with the regulations, available here, which employers must display by March 8, 2013. The WHD also updated the optional FMLA forms to reflect the changes made by the new regulations. All available forms can be found here.

The changes made by the Final Rule include:

  • Expanding the availability of military exigency leave to eligible employees with family members in the Regular Armed Forces (no longer limited to the National Guard or the Reserves);
  • Requiring the military member be deployed to a foreign country, instead of requiring the military member be deployed in furtherance of a contingency operation;
  • Increasing the amount of time an employee can take for Rest and Recuperation qualifying leave from 5 days to 15 days;
  • Adding “parental leave” as a new category of qualifying exigency leave;
  • Permitting eligible employees to take military caregiver leave to care for covered veterans (and providing a definition of “serious injury or illness” for veterans);
  • Expanding the definition of serious injury or illness for current service members to include the aggravation of a pre-existing serious injury or illness during active duty;
  • Expanding the definition of authorized health care providers who can certify serious injuries or illnesses to include those who are not affiliated with the Department of Defense, Veterans Affairs, or TRICARE;
  • Adding language clarifying that employers may not require an employee to take more leave than necessary and must track FMLA leave using the smallest increment of time (no greater than one hour) used to track other forms of leave; and
  • Establishing special eligibility requirements for airline flight crew members.

Employers should review their FMLA policies to ensure compliance with these changes and should contact counsel for guidance.