New FMLA Regulations and What it Means for Military Families

In 2008 and 2010 the Family and Medical Leave Act (FMLA) was amended, expanding the military-related leave protections and included a special eligibility provision for airline flight crew employees. Effective March 8, 2013 more regulations will be added to the complexities of FMLA. 

What’s the reasoning behind these changes? For military families, caring for an injured service member or arranging alternative childcare when a spouse is deployed can present difficulties, however, the FMLA intends to ease such burdens. For airline flight crew employees with unique work schedules, the proposed rules allow greater access to the benefits of the FMLA and a special method of calculating leave. While this article mainly covers changes pertaining to military families, please contact your FMLA Case Manager if you would like to discuss the new rules pertaining to flight crews.

Exigency Leave

Under the old regulations a covered service member was either a member of the National Guard or the Reserves that had been called to active duty in support of a contingency operation. The new regulations have expanded exigency leave to include members of the Regular Armed Forces, and “active duty” requires deployment to a foreign country. (§ 825.126)

Employees taking exigency leave for rest and recuperation (R&R) were limited to 5 days leave under the old regulations, but the new regulations have expanded the duration for R&R to a maximum of 15 calendar days. (§ 825.126)

Under the old regulations exigency
leave could be taken for any of the following reasons:

1. Short term deployment
2. Military events and related activities

3. Childcare and school activities

4. Financial and legal arrangements

5. Counseling

6. R&R

7. Post-deployment activities

8. Additional activities


The new regulations introduced the ninth categoryparental leave care. Employees may take this leave to care for a military member’s parent who is incapable of self-care when the care is necessitated by the member’s covered active duty.  (§ 825.126)

Another change to exigency leave is the required information/documentation for certifying R&R. The new rules state the employee must include either the R&R orders or any other documentation from the military that establish the dates of the R&R (§ 825.309)


Caregiver Leave

The 2008 regulations limited caregiver leave to current service members in the Armed Forces, National Guard and the Reserves. The new 2013 regulations have expanded the coverage to include veterans during a five year period starting on the discharge date.  Veterans covered under the new regulations can be discharged for any reason other than dishonorable. (§ 825.127)

The definition of an illness or injury has also been expanded. The 2008 rules limited a covered illness or injury specifically to illness or injuries related to active duty. The new rules expand the coverage to incorporate pre-existing conditions that were aggravated during active duty. (§ 825.127)

Caregiver leave is expanded to include health care providers, as defined in § 825.122, who are not a part of the DOD, VA, or Tricare Network. In the past you were not allowed to ask for a second or third opinion for caregiver leave. This is still true for certifications from health care providers from the DOD, VA, or Tricare Network. If the certification is completed by a health care provider as defined in § 825.125 the employer has the right to ask for a second or third opinion. (§ 825.310)


Employee Eligibility

Under the 2008 amendments eligibility was based on 12 months of employment and 1,250 hours worked during a 12 month period preceding the FMLA request. This is still the rule, but the main difference between the 2008 and now is the new regulations apply time missed due to USERRA-covered service toward the 12 month/1,250 hour eligibility rules. (§ 825.110)

Example: If the employee is unable to work his or her schedule over the weekend             because of the monthly reserve requirement, then that time missed would be counted towards the 1,250 requirement.  


Language Clarification

The new rules added clarifying language for the Minimum Increments of Leave and the Physical Impossibility (§ 825.205). The clarification languages does not change how this section is administered, but it is important to note that the increments of leave should be measured using the smallest increment of time used for other forms of leave and the “impossibility provision” should be used in the most limited circumstance.


Record Keeping

Record keeping requirements have not necessarily changed but the new rule incorporates the protections of the Genetic Information Non-Discrimination Act (GINA). (§ 825.500)

Click here to view the The Employer’s Guide to Military Family Leave



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