By Susan Schoenfeld, JD, Senior Legal Editor
Earlier this month, the U.S. Department of Labor (DOL) issued a Final Rule for the Family and Medical Leave Act (FMLA). The rule, which addresses family military leave and airline flight crew rules, was issued ahead of the planned regulatory schedule. The provisions not already in effect will become effective on March 8, 2013.

Overview of changes

The Final Rule amends certain FMLA regulations implementing amendments to the military leave provisions of the law made by the National Defense Authorization Act (NDAA) for Fiscal Year 2010.

To implement the NDAA’s amendments made to the FMLA’s qualifying exigency provision, the Final Rule:

1. Revises the FMLA regulations to reflect the expansion of qualifying exigency leave to include eligible employees with family members serving in the Regular Armed Forces;
2. Adds a foreign country deployment requirement;
3. Increases the length of time an eligible family member may take for the qualifying exigency leave reason of Rest and Recuperation from 5 days to up to a maximum of 15 days; and
4. Creates a new qualifying exigency leave category for parental care.

With regard to miltary caregiver leave under the FMLA, the Final Rule:

1. Specifically defines what conditions constitute a serious injury or illness for a current member of the Armed Forces or a covered veteran;
2. Expands the definition of “serious injury or illness” to include preexisting injuries or illnesses that were aggravated in the line of duty;
3. Adds enrollment in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers as evidence of a covered veteran’s qualifying injury or illness; and
4. Allows private physicians, outside of the military healthcare system, to certify a serious injury or illness.

The Final Rule also includes clarifying changes concerning the calculation of intermittent or reduced schedule FMLA leave; the removal of the forms from the regulations; and technical corrections to the current regulations.

In addition, the Final Rule amends the regulations to implement the Airline Flight Crew Technical Corrections Act (AFCTCA), which established eligibility requirements specifically for airline flight crewmembers and flight attendants for FMLA leave and authorized the DOL to issue regulations regarding the calculation of leave for such employees, as well as special recordkeeping requirements for their employers.

To see a chart comparing the former and current (final) regulatory changes, see the DOL’s chart at www.dol.gov/whd/fmla/2013rule/comparison.htm.

For more information on the Final Rule, see DOL’s website at www.dol.gov/whd/fmla/2013rule.

Susan Schoenfeld, J.D., is a Senior Legal Editor for BLR’s human resources and employment law publications. Ms. Schoenfeld has practiced in the area of employment litigation and counseling, covering topics such as disability discrimination, wrongful discharge, sexual harassment, and general employment discrimination. She has litigated numerous cases before the U.S. Court of Appeals, state court, and at the U.S. Department of Labor. In addition to litigating employment cases in state and federal court, she provided training and counseling to corporate clients regarding employment-related issues. Prior to entering private practice, Ms. Schoenfeld was an attorney with the Civil Rights Division at the U.S. Department of Labor in Washington, D.C., where she advised federal agencies, drafted regulations, conducted inspector training courses, and litigated cases for the Office of Federal Contract Compliance Programs, the Directorate of Civil Rights, and the Mine Safety and Health Administration. Ms. Schoenfeld received her undergraduate degree, cum laude, with honors, from Union College, and her law degree from the National Law Center at George Washington University.