Client Bulletin #492


For a printer-friendly copy, click here.

As we reported last week, the U.S. Department of Labor issued its Final Rule on the Family and Medical Leave Act, to take effect March 8, 2013. This was based on a proposed rule that was issued last February. The 2013 rule will replace the rule issued in late 2008 by the Bush Administration, which took effect January 16, 2009, right before President Obama's first inauguration.

(For clarity, from here on out I will refer to the rule that will take effect March 8 as "the new rule" or "the 2013 rule." I will refer to its predecessor as "the 2009 rule.")

For the most part, the 2013 rule was needed because of two new laws that were enacted after the 2009 rule went into effect. In the fall of 2009, Congress passed the National Defense Authorization Act for Fiscal Year 2010, which liberalized the requirements for employees seeking leave for a military "qualifying exigency" or for "military caregiver" leave. Congress also subsequently passed the Airline Flight Crew Technical Corrections Act, dealing with calculation of FMLA time for members of airline flight crews, including pilots and flight attendants.

The Department of Labor also took the opportunity to make a few tweaks to the old, "traditional," "non-military" provisions in the FMLA as well. But for the most part, those provisions of the 2009 rule are unchanged. The DOL has a "side-by-side" comparison of the 2009 and 2013 rules on its website. (The DOL website refers to the 2009 rule as "the 2008 rule," based on its date of issuance rather than its effective date.)


Qualifying Exigency Leave

The new rule makes clear that it applies to members of the regular armed forces, and the National Guard and Reserves, called to service in a foreign country. The new rule also adds a new type of "qualifying exigency": for care of a parent related to active duty or the call or impending call to active duty in support of a contingency operation. The parent must be the parent of the military member (not necessarily the employee) and must be incapable of self-care. The military member must be the spouse, parent, or child of the employee.

EXAMPLE: Employee Mary's husband is heading to Afghanistan in support of a contingency operation. His absence will require that his elderly mother, who is incapable of self-care, be placed in a nursing home. Mary would be entitled to "qualifying exigency" leave to help make these arrangements.

If Mary's own mother were the one needing to be placed in a nursing home, Mary would not be entitled to "qualifying exigency" FMLA leave to make the arrangements because her mother is not the mother of the "military member." (However, it is possible that Mary would qualify for "regular" FMLA leave for her mother's serious health condition.)

The allowable leave for "Rest and Recuperation" has been increased. Under the 2009 rule, five calendar days was allowed per "R&R" period. Under the 2013 rule, 15 calendar days will be allowed per "R&R" period.

Military Caregiver Leave

In accordance with the statutory changes in the Fiscal Year 2010 NDAA, the new rule provides that covered servicemember includes "covered veterans." A covered veteran is one who was discharged or released for reasons other than "dishonorable" within the five years* preceding the day that the employee's FMLA leave for the veteran's serious injury or illness would begin.

* CAUTION: The DOL is not counting the period between October 28, 2009 (the date that the Fiscal Year 2010 NDAA was enacted) and March 8, 2013, in calculating the five-year period. This amounts to approximately 1,226 days. Employers will have to keep these extra days in mind when determining whether an employer's family member is a "covered veteran" until March 8, 2018.

EXAMPLE: Employee Joe requests leave to care for his wife's serious injury or illness on April 15, 2013. Joe's wife was honorably discharged from the Navy on January 15, 2005. In determining whether Joe's wife was a "covered" veteran, the employer would look back from April 15, 2013, the date that Joe's leave would begin. Although it would seem that his wife should not be a covered veteran because she was discharged more than five years before that date, she would actually be entitled to approximately 1,226 additional days, meaning that she is, in fact, a covered veteran.

Also per the changes made to the statute, "serious injury or illness" for current servicemembers and covered veterans now includes preexisting injuries or illnesses that were aggravated in the course of military service. For covered veterans, "serious injury or illness" also includes (1) a VA Service Related Disability Rating of 50 percent or greater; (2) a disability that "substantially impairs" the veteran's ability to get "substantial gainful employment" or would if untreated; and (3) injuries or illnesses that have been the basis for the veteran's enrollment in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.

Calculating FMLA Leave Eligibility Under USERRA

The 2009 rule provided that, in calculating whether an employee met the 12-months' employment requirement for eligibility, the employer was required to consider all periods of employment unless interrupted by a break of seven years or more. There was an exception for employees whose employment was interrupted because of military service within the meaning of the Uniformed Services Employment and Reemployment Rights Act – for those employees, the interruptions for military service were not counted against the employee.

In calculating whether an employee who had served in the military met the 1,250-hour requirement, the employer was required to consider the number of hours that the employee would have worked absent military service.

The 2013 rule clarifies that these exceptions to the eligibility requirements for members of the military apply to all types of military service, including service in the regular Armed Forces, the National Guard, and the Reserves, and to members of airline flight crews.


Under the new rule, consistent with the Airline Flight Crew Technical Corrections Act, a member of a flight crew is eligible for FMLA leave if he or she has worked or been paid for at least 60 percent of his or her applicable monthly guarantee and has worked or been paid for at least 504 hours. An eligible flight crew member is entitled to 72 days per 12-month period for family/medical and "qualifying exigency" leave, and 156 days "in a single 12-month period" for military caregiver leave.


Minimum Increments of Leave

In a change that is sure to annoy employers, the 2013 rule provides that an employer must charge for intermittent or reduced schedule FMLA leave in the smallest timekeeping increment it uses for other types of leave, and in no event may the employer use an increment larger than one hour. The employer is not allowed to charge for more FMLA leave than the employee actually needs. The only (very narrow) exception to this rule is where it is physically impossible for the employee to interrupt a shift once begun – for example, for a flight attendant who is in the air. In a case like that, in which it is literally impossible for an employee to miss only "part" of a shift, the employer may charge for the entire shift.

New Forms/Certifications

The various FMLA forms have been revised to comply with the NDAA and the flight crew legislation, and they are no longer part of the regulations. The DOL removed the forms from the regulations so that it could amend the forms without being required to go through a full-blown period of notice and comment first. The new forms are available on the DOL website. (Scroll down to forms WH-380-E through WH-385V.) As under the prior rules, employers are allowed to use their own forms as long as they do not ask for more information than is on the corresponding government form.

To certify a need for qualifying exigency "R&R" leave, the 2013 rule provides that an employee can provide a copy of the R&R leave orders for the military member, or other documentation that specifies the dates of the military member's R&R leave.

To certify a need for military caregiver leave, the 2013 rule provides that an employee can provide documentation from health care providers who are not part of the Department of Defense or TRICARE. If the service member is a veteran enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers, the employee can present documentation of the enrollment as the "certification," and this will be considered valid even if the employee is not the designated caregiver on the document. However, the employer can request documentation of the employee's familial relationship with the veteran, as well as the veteran's date of discharge and whether the discharge was under other than "dishonorable" circumstances.

The above is obviously only a summary of the changes in the new FMLA rule.


Employers covered by the FMLA should do the following by March 8, or as soon as possible afterward:

  • Update their FMLA policies in accordance with the new rule.
  • Replace the current FMLA poster with this one.
  • Make sure all FMLA Fact Sheets are up to date. (Scroll down to "Family and Medical Leave Act of 1993.")
  • Use the new DOL notification and certification forms, or adapt their own forms to be consistent with the new ones.
  • Ensure that leave administrators are familiar with the changes that will take effect March 8.

If you have a question about any of the above, please contact the Constangy attorney of your choice.

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Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A "Go To" Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by sources such as Chambers USA, Martindale-Hubbell, and Top One Hundred Labor Attorneys in the United States, and the firm is top-ranked by the U.S. News & World Report/Best Lawyers Best Law Firms survey. More than 140 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Alabama, California, Florida, Georgia, Illinois, Massachusetts, Missouri, New Jersey, North Carolina, South Carolina, Tennessee, Texas, Virginia and Wisconsin. For more information, visit


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