POSTED BY ARLENE KLINE ON MARCH 26, 2013

There is some very interesting news in the world of the Family and Medical Leave Act (FMLA)!  The Family and Medical Leave Act is a federal law enacted by President Clinton that entitles eligible employees of covered employers to take unpaid, job-protected leave for specified reasons with continuation of group health insurance coverage under the same terms and conditions as if they had not taken leave. Some examples of the reasons for permissible leave include exigency leave and military caregiver leave for families of military service members, caring for a newborn or recently adopted child or a family member with a serious health condition, or an employee's own serious health condition.  

The U.S. Department of Labor recently released an updated version of its FMLA Advisor. The FMLA Advisor has been updated to reflect the expansions of FMLA protections that became effective on March 8, 2013. The Family and Medical Leave Act was amended to provide families of eligible veterans with the same job-protected FMLA leave currently available to families of military service members and allow more military families to take leave for activities that arise when a service member is deployed. The expansions also address the application of the FMLA to airline personnel and flight crews.  Due to the amendment, employers should ensure that their FMLA policies are up to date and encompass all of the changes to the Act.

I will discuss more on this topic at the 18th Annual Akerman Labor & Employment Law Seminar.

POSTED BY ELINA BASHAM ON FEBRUARY 8, 2013

Military family leave, enacted in 2009, provides for two forms of Family Medical Leave Act (FMLA) leave benefits related to military service: Qualifying Exigency and Military Caregiver Leave.  On February 5, 2013, on the twentieth anniversary of the FMLA, the U.S. Department of Labor (DOL) issued a Final Rule expanding FMLA protections. One of the expansions provides families of eligible veterans with the same job-protected FMLA leave currently available to families of military service members. The expansion also enables more military families to take leave for activities that arise when a service member is deployed.  The expansions will go into effect March 8, 2013.

Current FMLA Military Family Leave Benefits:

FMLA Qualifying Exigency Leave:

• A non-medical activity that is directly related to the covered military member's active duty or call to active duty
• Seven categories of qualifying exigencies include:
• Short notice deployment
• Military events and related activities
• Childcare and school activities
• Financial and legal arrangements 
• Counseling
• Rest and recuperation
• Post-deployment activities

FMLA Military Caregiver Leave:

• Twenty-six workweeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness.
• Employee must be the son, daughter, spouse, parent or the "next of kin" of the covered service member

The 2013 Final Rule highlights include: 

• Expansion of the definition of a covered service member: Includes veterans who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness incurred or aggravated in the line of duty on active duty and that manifested before or after the veteran left active duty.

• Definition of a covered veteran: The Final Rule defines a covered veteran as a veteran who has been discharged or released under conditions other than dishonorable within the five-year period preceding the date the employee first takes military caregiver leave to care for the veteran.

• Inclusion of Pre-Existing Injuries:  Expands the military caregiver leave provision to provide leave to eligible family members if the veteran was a member of the Armed Forces at any time during the period of five years preceding the date of the medical treatment, recuperation, or therapy.

• Expansion of qualifying exigency leave for employees with family members in the Regular Armed Forces: The Final Rule expands the qualifying exigency leave entitlement to employees whose spouse, son, daughter, or parent serve in the Regular Armed Forces, and incorporates the statutory requirement that the military member, whether in the Regular Armed Forces or the Reserve components, must be deployed to a foreign country.

• Certain changes to the categories of qualifying exigency leave, including:
• Increasing the amount of time an eligible employee may take qualifying exigency leave related to the military member's Rest and Recuperation to a maximum of 15 calendar days. This leave may only be used while the military member is on Rest and Recuperation leave.

• Creating a new qualifying exigency category that allows an eligible employee to take FMLA leave for certain activities related to the care of the military member's parent who is incapable of self-care where those activities arise from the military member's deployment or impending deployment, such as arranging for alternate care for the parent; providing care for the parent on an urgent, immediate need basis; admitting or transferring the parent to a care facility; and attending certain meetings with staff at a care facility.

• Expansion of health care providers authorized to certify a current service member's or veteran's serious injury or illness: The Final Rule expands the list of health care providers who can provide a medical certification to support FMLA military caregiver leave to include health care providers who are not affiliated with the military. 

• If a medical certification is obtained from a non-military affiliated health care provider, the employer may request a second (or third) opinion from the employee. The Final Rule retains the provisions that healthcare certifications obtained from healthcare providers associated with the military may not be subject to second and third opinions.

POSTED BY KAREN M. BUESING ON SEPTEMBER 24, 2012

When she sued for FMLA interference and retaliation, the employer argued that her claims should be dismissed, because, as a matter of law, she did not satisfy the basic prerequisite for FMLA leave.  While the court agreed that her claim of interference with FMLA rights failed, because she had no actual FMLA right, her claim for retaliation survived – for that claim she only needed to show that she was treated adversely because she took FMLA leave. Actual entitlement to leave under the FMLA is not an element of the claim, the court said.

Employers should be careful in explaining their leave policies to employees and in calculating eligibility.

POSTED BY SCOTT T. SILVERMAN ON FEBRUARY 2, 2012

On January 30, 2012, Secretary of Labor Hilda L. Solis announced that the U.S. Department of Labor is issuing a notice of proposed rulemaking to implement new statutory amendments to the Family and Medical Leave Act that would expand military family leave provisions and incorporate a special eligibility provision for airline flight crew employees.

The National Defense Authorization Act for Fiscal Year 2010 recent statutory amendments expanded the FMLA’s military caregiver leave and qualifying exigency leave provisions. The amendments extended military caregiver leave to eligible employees whose family members are recent veterans with serious injuries or illnesses, and expanded the definition of a serious injury or illness to include serious injuries or illnesses that result from preexisting conditions. The amendments also expanded qualifying exigency leave to eligible employees with family members serving in the Regular Armed Forces, and added a requirement that for all qualifying exigency leave the military member must be deployed to a foreign country.

The Airline Flight Crew Technical Corrections Act established a special FMLA hours of service eligibility requirement for airline flight crew members, such as airline pilots and flight attendants, based on the unique scheduling requirements of the airline industry. Under the amendment, an airline flight crew employee will meet the FMLA hours of service eligibility requirement if he or she has worked or been paid for not less than 60 percent of the applicable total monthly guarantee and has worked or been paid for not less than 504 hours during the previous 12 months.

The major provisions of the NPRM include:

• the extension of military caregiver leave to eligible family members of recent veterans with a serious injury or illness incurred in the line of duty;
• a flexible, three-part definition for serious injury or illness of a veteran;
• the extension of military caregiver leave to cover serious injuries or illnesses for both current servicemembers and veterans that result from the aggravation during military service of a preexisting condition;
• the extension of qualifying exigency leave to eligible employees with covered family members serving in the Regular Armed Forces;
• inclusion of a foreign deployment requirement for qualifying exigency leave for the deployment of all servicemembers (National Guard, Reserves, Regular Armed Forces);
• the addition of a special hours of service eligibility requirement for airline flight crew employees; and
• the addition of specific provisions for calculating the amount of FMLA leave used by airline flight crew employees.