The Department of Labor (“DOL”) recently published “29 CFR Part 825, The Family and Medical Leave Act; Final Rule,” (“Final Rule”) which amended the Family Medical Leave Act (“FMLA”) with regard to coverage of military caregiver and exigency leaves. These changes become effective March 8, 2013. Some critical points include:
- Pursuant to the Final Rule, in order to qualify for the exigency leave, the military member must be the spouse, son, daughter, or parent of the employee requesting leave. The child at issue can be “the military member’s biological, adopted, or foster child, stepchild, legal ward, or child for whom the military member stands in loco parentis, who is either under age 18 or age 18 or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence.” The child for whom child care leave is sought need not be the child of the employee requesting leave. For example, if Amy is called up for active duty, her mother or son could take exigency leave to care for Amy’s younger daughter. One hole to note, Amy’s mother-in-law cannot take leave to help with the childcare regardless of her relation as grandmother to Amy’s child.
- Under the Final Rule, family members now get 15 calendar days (up from five) for exigency leave to bond with a military member on rest and recuperation leave. The timing and amount of leave is to be consistent with that given by the military, starting on the date the military member begins his or her rest and recuperation leave, and for the same amount of time. Thus, if the military gives Amy, our military member, 10 days of rest and recuperation leave, the employee can only take up to 10 days. This leave may be taken intermittently so long as it is during the period of time indicated on the military member’s rest and recuperation orders. Thus, if Amy has a 30 day rest and recuperation order, her husband could spread the 15 days out over the entire month as he chooses.
- The Final Rule amends the FMLA to now allow a qualifying exigency for which leave may be taken to care for the parent of a military member. This amendment is similar to the child care exigency provision and allows parental care exigency leave for the spouse, parent, son, or daughter of a military member in order to take care of military member’s parents who are incapable of self-care, which is defined as requiring active assistance or supervision to provide daily self-care in three or more “activities of daily living” (e.g., grooming, dressing, and eating) or “instrumental activities of daily living” (e.g., cooking, cleaning, and paying bills).
- Previously, military caregiver leave provided a 26-week leave for eligible family members to care for seriously ill or injured military members, but specifically excluded former members of the military, as well as members on the permanent disability list from the definition of a “covered service member.” The Final Rule removes this exclusion so that military caregiver leave now covers to former members of the military.
- The Final Rule, defines a serious injury or illness to bean injury or illness that renders the military member medically unfit to perform the duties of that member’s office, grade, rank, or rating. Additionally, the Final Rule allows a preexisting condition aggravated by military service in the line of duty on active duty to qualify as a serious injury or illness.
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