eTrends - DOL Issues Final Rule Implementing Amendments to the FMLA

On February 6, 2013, the 20th anniversary of the enactment of the federal Family and Medical Leave Act ("FMLA"), the U.S. Department of Labor issued a Final Rule amending certain regulations under the FMLA to expand military-related leave protections and to create greater access to FMLA benefits for airline flight crews. The Final Rule, which implements statutory amendments made to the FMLA by the National Defense Authorization Act for Fiscal Year 2010 ("NDAA") and the Airline Flight Crew Technical Corrections Act ("AFCTCA"), becomes effective March 8, 2013. In addition, the Department of Labor issued a new poster summarizing the major provisions of the FMLA and reflecting the changes made by the Final Rule. Employers must start using the new poster by March 8, 3013.

Some of the changes and clarifications made by the Final Rule relating to military-related leave protections include the provision of a broad definition for "serious injury or illness" for a covered veteran that includes four alternatives, only one of which must be met, and the expansion of the definition of "serious injury or illness" for current service members to include pre-existing injuries or illnesses that were aggravated by service in the line of duty on active duty. A covered veteran is defined as one who was discharged or released under conditions other than dishonorable within five years prior to the date the employee's military caregiver leave begins, but, for veterans who were discharged before March 8, 2013, the effective date of the Final Rule, the period of October 28, 2009, the NDAA's enactment date, to March 8, 2013 is excluded. The Final Rule also adds a new category of qualifying exigency leave that will allow an eligible employee to take leave for certain activities related to the care of a military member's parent who is incapable of self-care when the activities are necessitated by the military member's covered active duty status. The Final Rule also increases 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 fifteen days. Additionally, the Final Rule expands the list of health care providers who can provide a medical certification to include health care providers who are not affiliated with the military.

Employers should review their FMLA policies, revise those policies as necessary, and begin using the new FMLA poster by March 8, 2013. Additional information, including a comparison of the new rule with the prior version, and Frequently Asked Questions is available on the Department of Labor's website. The final rule was published in the February 6, 2013 issue of The Federal Register. Download the new FMLA poster.

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