On January 30, 2012, the Department of Labor (DOL) issued proposed revisions to regulations involving the Family Medical Leave Act (“FMLA”). To a significant degree, the proposed regulations simply memorialize certain interpretive changes announced last year regarding eligibility for exigent circumstances and military care giver leave. The remaining proposals are an interesting mix of tweaks and fine-tuning.
Exigent Circumstances
The new proposed regulations memorialize last year’s announcement by the DOL that exigent circumstances leave would now cover the families of members of the regular armed forces (e.g., army, navy, air force), but that the exigency had to arise from deployment in a foreign country. Foreign deployment will now include deployment in international waters. Other proposed include expanding the time available for “Rest and Recuperation” from five days to fifteen, adding attendance at a funeral as a qualifying post-deployment event and permitting leave for child care and school activities even if the employee is not the parent of the deployed military member’s child.
Military Caregiver
The proposed regulations also memorialize interpretative changes announced last year for military care giver leave. These changes included covering care provided to veterans for up to five years following release from service and including aggravation of preexisting conditions as a serious illness or injury warranting care. Other changes include:
- Providing that military care giver leave need only begin within the five years after discharge; the employee could continue exhausting the allotted 26 weeks into the sixth year if needed;
- Expanding “serious injury or illness” to cover a physical or mental condition:
- for which a VA Servife Related Disability Rating of 50 percent or higher was issued, or
- where the condition substantially impairs the veteran’s ability to secure or follow a substantially gainful occupation.
- Allowing non-military health care providers to certify the serious illness or injury arising from military duty.
General Provisions
The proposed regulations also seek to eliminate a recent rule allowing employers to delay reinstatement from FMLA leave if it was a physical impossibility (e.g., a flight attendant seeking to return to an assignment on an airborne plane) and remove the certification forms from the regulations (even though the DOL would still maintain them on their web site and encourage their continued use).
Bottom Line
The DOL is seeking public comment on the new regulations, after which they will reexamine the proposals and likely issue a final version.