Military Family Leave Act Grows – Long Time Coming or Too, Too Much?

First Lady Michele Obama and Labor Secretary Hilda Solis recently announced proposed rules for implementation of changes to the Family and Medical Leave Act required by the National Defense Authorization Act for Fiscal Year 2010. That act was signed into law by President Obama on October 28, 2009.

The changes apply to the families of Active Duty Military Personnel, Reservists, National Guard members and Veterans!

The Notice of Proposed Rulemaking to implement the law was published in the Federal Register on February 15, 2012 (Vol. 77, No. 31, pp. 8960-9020).

Military Family Leave, as it has come to be known, originated in the National Defense Authorization Act for Fiscal Year 2008. That legislation provided for two benefits for National Guard members and Reservists:

Qualifying Exigency Leave.

Twenty-six workweeks of leave in a single 12-month period for an eligible employee to care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember.

The proposed rules change the eligibility for Qualifying Exigency Leave to include all family members of regular and reserve forces “during the deployment of the member with the Armed Forces to a foreign country.” The new rules expand the eligibility to family members of regular forces and restrict the eligibility of Reserve and National Guard forces to those involved with deployments to foreign countries. Such deployments include deployments to international waters but do not include regular changes of duty stations.

Exigency leave categories are: short-notice deployment, military events and related activities, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, and additional activities. The maximum leave allowed, except for rest and recuperation (15 days), would be twelve workweeks in a twelve month period. Other enhancements include:

Increasing the time an eligible employee may take to spend time with the a military member on rest and recuperation leave from five days to fifteen days.

Expands the caregiver provision to include regular forces, allowing an eligible employee who is a covered servicemember’s spouse, son, daughter, parent, or next of kin to take up to 26 workeeks of leave during a single 12-month period to care for a servicemember receiving treatment for a serious injury or illness.

These new rules further expand the military caregiver leave to include in the definition of covered servicemembers to mean a covered veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness. The veteran’s eligibility would run for five years beginning when the first FMLA leave is taken. The Department of Labor is proposing to use a VA disability rating of 50% as a qualifying serious injury or illness.

Existing Family and Medical Leave Act regulations require employers to maintain any preexisting group health plan coverage for an employee on FMLA protected leave under the same conditions that would apply if the employee had not taken leave. Once the leave period is concluded, the employer is required to restore the employee to the same or an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.

Please note that not every employer is covered by the Family and Medical Leave Act nor is every employee. Generally an employer must have at least fifty employees and an employee must have worked for the employer for at least a year.

Your comments on the proposed rules are solicited but must be received before April 16, 2012 (Use Regulatory Information Number (RIN) 1235-AA03) at www.regulations.gov. You may mail your comments to Mary Ziegler, Director of The Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U. S. Department of Labor, Room S-3510, 200 Constitution Avenue NW., Washington, DC 20210. Please email or snail mail but not both. Comments are posted without change, including personal information.

The changes in the Family and Medical Leave Act are law, but the details in these proposed rules are not. Whether you agree or disagree make your voice heard.