Labor Department Publishes Final FMLA Regulations – Part 2

In Part 1 of my review of the new FMLA regulations adopted by the US Department of Labor, we took a look at what types of events would constitute “qualifying exigencies,” since the FMLA was amended to require that employers provide 12 weeks of unpaid leave for employees for such a purpose.

The recent amendments to the FMLA, however, include a second new reason for which an employee can qualify for leave.  An employee now is entitled to up to 26 weeks of unpaid leave – not just the normal 12 weeks for all other FMLA qualifying events – “to care for a covered service member with a serious injury or illness.”  This type of FMLA leave is available only for a spouse, parent, child or next of kin of the service member.

The new regulations, which become effective January 16, 2009, explain how this new type of FMLA-qualifying leave is to be applied.  The main language of the regulations provide the following:

Eligible employees are entitled to FMLA leave to care for a current member of the Armed Forces, including a member of the National Guard or Reserves, or a member of the Armed Forces, the National Guard or Reserves who is on the temporary disability retired list, who has a serious injury or illness incurred in the line of duty on active duty for which he or she is undergoing medical treatment, recuperation, or therapy; or otherwise in outpatient status; or otherwise on the temporary disability retired list.

Note first that the regulations clearly require that the care be for a current service member.  In fact, they go on to explicitly exclude care for a retired service member.

The regulations then go to define the term “serious injury or illness” as an injury or illness that is incurred by a covered service member in the line of duty that may render the service member medically unfit to perform the duties of his or her office, grade, rank or rating.

One interesting difference between this type of FMLA leave and all other FMLA-qualifying leave is that an eligible employee may take up to 26 weeks per 12 month period for this type of leave, as opposed to the typical 12 weeks for all other FMLA purposes.

The new regulations address how this works, when an employee may need to use both types of leave in the same 12 month period.  For example, if an employee takes 12 weeks of unpaid FMLA leave for the birth of a child (another FMLA-qualifying event), the regulations require that the employee still could take another 14 weeks during that same 12 month period to care for a spouse who has a serious injury or illness incurred in active duty military service.

Similarly, if an employee has taken 20 weeks of unpaid leave to care for a service member with a serious injury or illness, he or she only will be able to take another 6 weeks of FMLA leave, during that same 12 month period, for any other FMLA qualifying purpose.

In some cases, a leave that is to care for a service member with a serious injury or illness also will meet the criteria for a leave that is to care for a family member with a serious health condition, which was one of the original types of FMLA leave.  The new regulations make clear that when a leave could qualiofy for both, the employer must first consider the leave against the employee’s 26-week entitlement for the care for a service member’s serious injury or illness.

Finally, the last item of note with respect to this new type of FMLA-qualifying leave is that the regulations make clear that when a husband and wife are both employed by the same employer, they are entitled to a combined 26 weeks for this purpose.  This is consistent with prior regulations, which made clear that a husband and wife who work for the same employer are entitled to a combined 12 weeks for all other FMLA purposes.

In addition to new regulations that are designed to address the two new types of FMLA-qualifying leave, the new regulations also make some changes to the existing scheme.  That will be our topic for Part 3 of this series on the new FMLA regulations.  Stay tuned.

–  Read Part 1 of the review of the FMLA regulations

–  Read Part 3 of the review of the FMLA regulations

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3 responses to “Labor Department Publishes Final FMLA Regulations – Part 2

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