New FMLA rule expands provisions for military families

The U.S. Department of Labor marked the 20th anniversary of the Family and Medical Leave Act by doing something that rarely happens in Washington, D.C. – it issued a new rule before the deadline.

Clarifying the amendments to the FMLA made by the 2010 fiscal year National Defense Authorization Act, this final rule focuses on expanding the leave provisions for military families. The expansion, especially for the military spouses and children, is seen as a reaction to the country’s extended military involvement in Iraq and Afghanistan.

Taylor

The final rule also provides airline flight crews, who often work erratic schedules, greater access to FMLA benefits and clarifies changes for calculating intermittent FMLA leave.

Indiana companies will most likely be impacted by the military provisions since the state has a healthy number of National Guard and Reserve members. Still, the changes introduced by the final rule are not sending clients to the phones to call their attorneys. The provisions were expected, the language of the final rule is mostly clear and, to date, many attorneys say there are no gray areas.

However, questions may arise as the final rule gets implemented.

“I don’t think that any of this was a huge surprise,” said Patricia Ogden, partner at Barnes & Thornburg LLP. “I think expanding coverage to military members was kind of an evolving issue.”

The FMLA was originally enacted on Feb. 5, 1993. It was designed to allow workers to take up to 12 weeks of unpaid leave from their offices and factory floors without having to worry about losing their jobs. Initially the qualifying events for FMLA were limited to the employee needing time to attend to his or her own serious health condition; to care for a spouse, parent, son or daughter with a serious medical problem; or to provide care after the birth or adoption of a child.

The 2013 final rule is the latest expansion of the FMLA. Also, it is an example of the Act growing beyond its original intention.

Military leave

Under the final rule, families of military members will have more circumstances for which they can take time off work.

Key provisions include:

• Qualifying exigency leave – a situation requiring an urgent response – has been expanded to include eligible employees with family members serving in the regular Armed Forces and deploying to a foreign country. Previously, only employees with a relative in the National Guard or Reserves were entitled to take leave for a qualifying exigency. For qualifying exigency events, spouses, adult children and parents of military members will be able to take FMLA leave for such circumstances as to prepare for a quick deployment, to attend to military activities, to attend to childcare or school events, to make financial and legal arrangements, counseling, and to attend to post-deployment activities.

• Military family members can take FMLA to provide parental care. In the instance where a military member is taking care of his or her infirmed parent when called to duty, the spouse or adult children may take leave to arrange for the parent’s care.

• The final rule expands the “military caregiver leave” provision to allow family members time off to care for eligible veterans with a serious injury or illness who are receiving medical treatment, recuperating or receiving therapy.

Cassman

• Another expansion of the “military caregiver leave” provision enables family to take leave to care for service member’s injuries or illnesses that were pre-existing to deployment and were aggravated in the line of duty.

The new provision covering pre-existing conditions is an area where Lewis Wagner LLP attorney Stephanie Cassman sees a gap in the final rule that may lead to some confusion. Disputes might arise over whether the injury or illness is related to active duty in the first place and if the deployment actually did aggravate the condition.

The language “aggravated” is unclear, she said.

The final rule became effective March 8. Although the changes to the FMLA were not unexpected, Ogden noted employers will have to update their forms and hang the new poster that informs employees of the alterations.

Act’s anniversary

In the 20 years since the FMLA was enacted, attorneys say it is one of the most significant employment laws ever created, comparable to Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990. Also, it is a rule they frequently deal with because employers often have questions caused by the complexity of the rule and the array of issues they are required to navigate.

Violating the FMLA, whether retaliating against a worker who took FMLA leave or interfering with an employee’s ability to take leave, can result in litigation. Consequently, when employers have doubts about an employee’s eligibility or if the reason for the leave is covered by the Act, they usually grant the leave rather than face a possible lawsuit.

Christopher Taylor, of counsel at Bingham Greenebaum Doll LLP, compared the reaction that employers had when the FMLA was first introduced as being similar to how they are receiving the Patient Protection and Affordable Care Act.

Initially, employers were resistant, confused and angry. However, Taylor said, FMLA is now part of the landscape and businesses accept it.

“I think it has certainly been the most significant employment law of the last 20 years,” he said.

As for the future of FMLA, Cassman predicted the Act will continue to expand beyond its original medical focus.

She pointed to the 2013 final rule which increases the number of days from five to 15 that a family member can take when the service member comes home for rest and recuperation. Truly, she said, this provision provides leave just to visit and has nothing to do with any health care concerns.

Wilson

“In my opinion, it has expanded more than what was ever anticipated when the FMLA was enacted 20 years ago,” Cassman said.

She observed the reason for the growth of FMLA is probably because of changes in the expectations around work and family. No longer do employees keep their office life and home life completely separated. The two are merging and employers have to recognize the need for workers to address family issues.

Amy Wilson, attorney at the Indianapolis office of Frost Brown Todd LLC, echoed Cassman. She noted that the new provisions allowing military family members leave to take care of child care and financial obligations exceeds the medical intent of the original language.

Looking ahead, Wilson can foresee the Act being expanded to give protection for time off to attend activities of children and grandchildren, or maybe even routine medical appointments.

However, she believes a more likely expansion of FMLA would be to include smaller employers. Currently the Act covers employers with 50 workers or more.

Another possible future change is mandating that FMLA leave be paid. States and even some cities have enacted legislation requiring employers to pay for FMLA leave. Part of the reasoning, Wilson said, is that the employee will need to have the paycheck during the leave in order to take care of the medical need.•