Department of Labor Issues New Regulations Regarding FMLA Military Leave

The Department of Labor published a final rule amending Family Medical Leave Act regulations military leave last month. The new rule contains some noteworthy changes.

The new rule generally:

  • military leaveAdds a new category of exigency leave for parental care (i.e., care for a military member’s parent when the parent is incapable of self-care);
  • Expands from five to fifteen days the amount of R&R FMLA leave an eligible employee would be able to take to spend with a covered service person; and
  • Clarifies rules for calculating intermittent and/or reduced schedule leave.

Exigency Leave for Parental Care

29 CFR 825.126(b)(8) provides that an employee who is a spouse, parent, son or daughter of a military member may take exigency leave to 1) arrange for alternative care for a parent of the military member, if the parent is incapable of self-care; 2) provide care for the parent on an immediate-need basis while the military member is on active duty or call to covered duty status; 3) admit or transfer the parent to a care facility when the transfer was necessary due to the military member’s call up; 4) attend members with the staff of the facility that is caring for the parent.

Rest and Recuperation

29 CFR 825.126(b)(7) increases the maximum number of days from five to fifteen that an employee can take to “bond” with a service member who is on rest and recuperation leave. The amount of time that an employee receives must correspond with the amount of leave that the military member receives, up to a maximum of fifteen days.

Intermittent Leave Clarification

29 CFR 825.205 simply clarified that an employee’s entitlement to FMLA leave should not be reduced beyond the actual leave taken, and added language which states that an employer may not require an employee to take more leave than is necessary to address the circumstances that precipitated the need for leave. Therefore, if your company already complies with the shortest increment rule, no changes are necessary. The new rule also emphasizes that if an employee is working, the time cannot count against him or her for FMLA entitlement, regardless of what the shortest increment is.

The new rules, which will become effective March 8, 2013, will require employers to begin to use a new FMLA poster on March 7, 2013. The new poster can be downloaded from the DOL website: http://www.dol.gov/whd/regs/compliance/posters/fmla.htm

The final rule can be accessed at: http://www.dol.gov/WHD/fmla/2013rule/

The DOL Wage and Hour Division has created a Side-by-Side Comparison of Current/Final Regulations which can be found on their website: http://www.dol.gov/whd/fmla/2013rule/comparison.htm

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