The Family and Medical Leave Act was enacted on February 5, 1993. The new law was effective on August 5, 1993, for most employers. If a collective bargaining agreement (CBA) was in effect on that date, the Act became effective on the expiration date of the CBA or February 5, 1994, whichever was earlier.

FMLA entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave each year for specified family and medical reasons. An eligible employee's right to FMLA leave began on August 5, 1993. Any leave taken before that date does not count as FMLA leave. However, events qualifying under the Act for FMLA leave purposes (e.g., the birth of a child) occurring before August 5, 1993, still entitle eligible employees to the benefits of FMLA on and after August 5, 1993.

The new law contains provisions relating to employer coverage; employee eligibility for the benefits of the law; entitlement to leave, maintenance of health benefits during leave, and job restoration after leave; notice and certification of the need for FMLA leave; and protections for employees who request or take FMLA leave. In addition, the law includes certain employer recordkeeping requirements.

Final Rules and state law. On January 6, 1995, the Department of Labor published the final FMLA regulations which consist of approximately 40 pages in a question and answer format. The final regulations were effective April 6, 1995, and can be obtained from the Wage and Hour Division office in your area. The FMLA is a complicated law to administer, and this chapter provides an overview of some of the FMLA requirements under the rules of the Department of Labor. Note that state law may have additional family and medical leave requirements, and you should consult an attorney in your state for compliance with both the FMLA and state law.

Purposes of the FMLA. The FMLA allows employees to balance their work and family life by taking reasonable unpaid leave for certain reasons. The FMLA is intended to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity. The FMLA seeks to accomplish these purposes in a manner that accommodates the legitimate interests of employers, and which minimizes the potential for employment discrimination on the basis of sex, while promoting equal employment opportunity for men and women.

The enactment of the FMLA was predicated on two fundamental concerns - the needs of the U.S. workforce and the development of high-performance organizations. Increasingly, American children and growing numbers of the elderly are dependent on working family members who spend long hours on the job. When family emergencies arise, requiring employees to attend to their seriously-ill children or parents, or to newly-born or adopted infants, or even to their own serious illness, workers need reassurance that they will not need to choose between their job security and meeting their personal and family obligations or tending to vital needs at home.

Employer coverage. FMLA applies to all:

1. Public agencies, including state, local and federal employers, and local education agencies (schools); and
2. Private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year and who are engaged in commerce or any industry or activity affecting commerce- including joint employers and successors of covered employers.

For FMLA purposes, most federal and Congressional employees are under the jurisdiction of the U.S. Office of Personnel Management (OPM) or the Congress.

Employee eligibility. To be eligible for FMLA benefits, an employee must:

1. work for a covered employer;
2. have worked for the employer for at least a total of 12 months;
3. have worked at least 1,250 hours over the prior 12 months; and
4. work at a location where at least 50 employees are employed by the employer within 75 miles.

Leave entitlement. A covered employer must grant an eligible employee up to a total of 12 work-weeks of unpaid leave during any 12-month period for one or more of the following reasons:

1. for the birth or placement of a child for adoption or foster care;
2. to care for an immediate family member (spouse, child, or parent) with a serious health condition; or,
3. to take medical leave when the employee is unable to work because of a serious health condition.

Spouses employed by the same employer are jointly entitled to a combined total of 12 workweeks of family leave for the birth or placement of a child for adoption or foster care, and to care for a parent (but not a parent "in-law") who has a serious health condition.

Determining the 12-month period in which leave is taken. An employer is permitted to choose any one of four methods for determining the 12-month period in which the 12 weeks of leave entitlement occurs:

1. The calendar year;
2. Any fixed 12-month "leave year;"
3. The 12-month period measured forward from the date any employee's first FMLA leave begins; or
4. A rolling 12-month period measured backward from the date an employee uses any FMLA leave.

An employer wishing to choose another alternative is required to give at least 60 days notice to all employees. This method must be applied uniformly to all employees unless there is a state law which mandates a particular method for determining the 12-month period. If an employer fails to select one of the above methods, the employee may use the method that is most beneficial to that employee.

Intermittent leave. Under some circumstances, employees may take FMLA leave intermittently - which means taking leave in blocks of time, or by reducing their normal weekly or daily work schedule.

Where FMLA leave is for birth or placement for adoption or foster care, use of intermittent leave is subject to the employer's approval. FMLA leave may be taken intermittently whenever it is medically necessary to care for a seriously ill family member, or because the employee is seriously ill and unable to work.

If the need for intermittent leave is foreseeable based on planned medical treatment, the employee is responsible for scheduling the treatment in a manner that does not unduly disrupt the employer's operations, subject to the approval of the health care provider. In such cases, the employer may also transfer the employee temporarily to an alternative job with equivalent pay and benefits that better accommodates recurring periods of leave than the employee's regular job.

Substitution of paid leave. Subject to certain conditions, employees or employers may choose to use or require the use of accrued paid leave (such as sick or vacation leave) to cover some or all of the otherwise unpaid FMLA leave.

The employer is responsible for designating if paid leave used by an employee counts as FMLA leave, based on information provided by the employee. In no case can an employee's paid leave be credited as FMLA leave after the leave has been completed.

Serious health condition. What is a "serious health condition" entitling an employee to FMLA leave? The definition of "serious health condition" was significantly revised by the final rules. The new rules define the term to mean an illness, injury, impairment, or physical or mental condition that involves any of the following:

1. 1. Hospital care and subsequent treatment or incapacity in connection with such inpatient care;
2. Incapacity of more than three consecutive calendar days that also involves treatment by a health care provider;
3. Incapacity due to pregnancy or prenatal care;
4. Chronic conditions requiring treatments;
5. A permanent or long term period of incapacity due to a condition for which treatment may not be effective. The person must be under the continuing supervision of a health care provider. Examples in this category include Alzheimer's, a severe stroke, or the terminal stages of a disease.
6. Absences due to multiple treatments by or under the supervision or refer ral of a health care provider for restorative surgery after an accident or injury or a condition that is likely to result in incapacity for more than Three consecutive calendar days in the absence of medical treatment.

The rules specifically exclude colds, flu, ear aches, upset stomach, minor ulcers, headaches other than migraines, routine dental or orthodontia problems, periodontal disease, routine physical, eye or dental examinations from the definition of serious health condition, unless complications develop. FMLA leave may be taken for treatment of substance abuse by a health care provider or by a provider of health care services on referral by a health care provider. On the other hand, absence because of the employee's use of the substance, rather than for treatment, does not qualify for FMLA leave.

Note that the final rules provide a more detailed explanation of each of the above categories. An excellent reference is the last page of the DOL's Certification of Health Care Provider form, reproduced at the end of this chapter.

Health care provider. Health care providers who qualify under the regulations to provide certification of a serious health condition for an employee or an immediate family member include doctors of osteopathy or medicine who are authorized to practice in the State, podiatrists, dentists, clinical psychologists, optometrists, and chiropractors authorized to practice in the State, nurse practitioners, nurse midwives and clinical social workers authorized in the State, Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, providers recognized by the employer or the employer's group health plan, and a health care provider licensed to practice in another country, and who is performing within the scope of his or her practice.

Maintenance of health benefits. A covered employer is required to maintain group health insurance coverage for an employee on FMLA leave whenever such insurance was provided before the leave was taken, and on the same terms as if the employee had continued to work.

Where appropriate, arrangements will need to be made for employees taking unpaid FMLA leave to pay their share of health insurance premiums while on leave. For example, if the group health plan involves co-payments by the employer and the employee, an employee on FMLA leave must continue making insurance premium payments to maintain insurance coverage, as must the employer. The employee and employer need to work out the method for the employee to pay his or her share of health insurance premiums while on unpaid FMLA leave.

An employer's obligation to maintain health benefits under FMLA will stop if and when an employee informs the employer of an intent not to return to work at the end of the leave period, or if the employee fails to return to work when the FMLA leave entitlement is used up. In some instances, the employer may recover premiums it paid to maintain health insurance coverage for an employee who fails to return to work from FMLA leave.

Other benefits. Certain types of earned benefits, such as seniority, need not continue to accrue during periods of unpaid FMLA leave. For other benefits, such as elected life insurance coverage, the employer and the employee need to make arrangements so that the benefits may be maintained during periods of unpaid FMLA leave. Except for accrued or earned benefits (such as seniority), the employee must be restored to the same benefits upon return from FMLA leave as if the employee had continued to work the entire FMLA leave period. Use of FMLA leave cannot result in the loss of any benefit that accrued before the employee's leave began. Accordingly, an FMLA leave period cannot be counted as a break in service for purposes of vesting or eligibility to participate in benefit programs.

Job restoration. Upon return from FMLA leave, an employee must be restored to his or her original job, or to an equivalent job with equivalent pay, benefits, and other employment terms and conditions.

In addition, an employee's use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave.

"Key" employee exception. Under specified and limited circumstances where restoration to employment will cause substantial and grievous economic injury to its operations, the employer may refuse to reinstate certain highly-paid "key" employees after using FMLA leave during which health benefits are maintained. In order to do so, the employer must:

1. notify the employee of his/her status as a "key" employee in response to the employee's notice of intent to take FMLA leave;
2. notify the employee as soon as the employer decides it will deny job restoration and explain the reasons for this decision;
3. offer the employee a reasonable opportunity to return to work from FMLA leave after giving this notice; and,
4. make a final determination as to whether reinstatement will be denied at the end of the leave period if the employee then requests restoration.

A "key" employee is a salaried "eligible" employee who is among the highest paid ten percent of employees within 75 miles of the work site.

Employee notice and certification. Employees seeking to use FMLA leave may be required to provide:

1. 30-day advance notice of the need to take FMLA leave when the need is foreseeable;
2. medical certifications supporting the need for leave due to a serious health condition affecting the employee or an immediate family member;
3. second or third medical opinions and periodic recertification, at the employer's expense;
4. periodic reports during FMLA leave on the employee's status and intent to return to work; and,
5. a "fitness-for-duty" certification to return to work.

When leave is needed to care for an immediate family member or the employee's own illness and is for planned medical treatment, the employee must attempt to schedule treatment so that it will not unduly disrupt the employer's operation.

Medical certification required of employees. An employer may require the employee to provide medical certification of a serious health condition of the employee or if the employee desires to care for a seriously ill spouse, son, daughter or parent. The DOL has developed a form for use in obtaining medical certification from health care providers that meets the FMLA's certification requirements. The form is contained in the new rules. Another form may be used by employers, but it may not request more information than what is contained in the form. Employers should be careful to limit the persons who have access to medical information, and keep such information confidential among those who need to know about the information. Note: The Certification of Health Care Provider form is reproduced at the end of this chapter.

Questions on the adequacy of a medical certification. An employer may not request additional information from the employee's health care provider. However, a health care provider representing the employer may contact the employee's health care provider, with the employee's permission, for purposes of clarification and authenticity of the medical certification. If the leave is concurrent with a workers' compensation leave, and the workers' compensation statute permits the employer to have direct contact with the employee's health care provider, then the employer may follow the workers' compensation provisions of that state.

An employer who has reason to doubt the certification may request a second opinion at the employer's expense. The employer may not regularly contract with or otherwise regularly utilize the services of the health care provider furnishing the second opinion unless the employer is located in an area where access to health care is extremely limited.

If the opinions differ, the employer may require the employee to obtain certification from a third health care provider, agreed to by both the employer and employee, again at the employer's expense. The third opinion will be final and binding. The employer must reimburse the employee or family member for out of pocket expenses in obtaining the second and third opinions.

Employer notices. First, every employer must post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the Act's provisions and providing information concerning procedures for filing complaints with the Wage and Hour Division of the Department of Labor. Copies of the required notice may be obtained from local offices of the Wage and Hour Division.

In addition to the posting requirement, the rules also require employers with any written guidance to employees concerning employee benefits or leave rights, such as employee handbooks, to provide information concerning FMLA entitlements and employee obligations under the FMLA in the handbook or other document. If the employer does not have written policies, manuals, or handbooks describing employee benefits and leave provisions, the employer shall provide written guidance to an employee concerning all the employee's rights and obligations under the FMLA. The DOL suggests that the FMLA Fact Sheet provided by the Wage and Hour Division be adapted for this purpose. You should consult an attorney to assist you in properly preparing this company policy.

Employers must also provide the employee with written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations. The notice must include, as appropriate:

1. That leave will be counted against the employee's annual FMLA leave entitlement;
2. Requirements for the employee to furnish medical certification of a serious health condition and the consequences of failing to do so;
3. The employee's right to substitute paid leave, whether the employer will require the substitution of paid leave, and any conditions;
4. Requirement that the employee make health insurance premium payments, and the consequences for failure to pay or late payments;
5. Requirement that the employee present a fitness for duty certificate to return to employment;
6. The employee's status as a "key employee" and the potential consequence that restoration may be denied following FMLA leave;
7. The employee's right to the same or equivalent job upon return from leave;
8. The employee's liability for premiums if the employee does not return to work after taking FMLA leave.

The notice may include other items, but must include the above items. A protoype notice, the Employer Response to Employee Request for Family or Medical Leave, is provided by the Department of Labor in the final rules, and is reproduced at the end of this chapter.

Designation of FMLA leave. In all circumstances, it is the employer's responsibility to designate leave as FMLA leave and to give notice of the designation to the employee. An employee does not need to expressly assert rights under the Act in order to qualify for leave under the Act. The employee merely needs to state a qualifying reason for the needed leave.

When an employer has acquired knowledge that leave is being taken for an FMLA required reason, the employer must notify an employee within two business days that the paid leave is designated and will be counted as FMLA leave. The notice may be oral or written, but if oral, it must be followed with a written confirmation by the next payday, unless the payday is less than one week, in which the notice must be made by the subsequent payday.

The U.S. Supreme Court in Ragsdale et al. v. Wolverine World Wide, Inc. held that the categorical penalty the Secretary of Labor imposes for a breach of Section 825.700(a) is contrary to the FMLA's remedial design. The regulation is entitled "What if an employer provides more generous benefits than required by the FMLA?" This is the sentence on which Ragsdale relied:

If an employee takes paid or unpaid leave and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee's FMLA entitlement. 29 CFR 825.700(a)

The Supreme Court found that this provision unfairly punishes an employer's failure to provide timely notice of the FMLA designation by denying it any credit for leave granted before the notice. If an employee takes an undesignated absence of 12 weeks or more, the regulation always gives him or her the right to 12 more weeks of leave that year.

Indeed, the employer would be required to grant the added 12 weeks even if the employee had full knowledge of the FMLA and expected the absence to count against the 12-week entitlement. In so holding the Supreme Court did not decide whether the notice and designation requirements are themselves valid or whether other means of enforcing them might be consistent with the statute.

If an employee wants an absence to be considered FMLA leave, the employee must notify the employer within two business days of returning to work that the leave was for an FMLA reason. If timely notification is not made, the employee may not assert FMLA protections.


DOL Reminds Employers that Military Service Time Counts Toward FMLA Eligibility

The Department of Labor has issued a memorandum that clarifies its position on the rights of returning uniformed service members to family and medical leave under the Uniformed Services Employment and Reemployment Rights Act. USERRA entitles returning service members to all the benefits of employment that they would have obtained if they had been continuously employed.

Under ordinary circumstances, a worker becomes eligible for leave under the FMLA after working for a covered employer for at least 12 months, during which he or she completed at least 1,250 hours of work. The memorandum says that employers should count the months and hours that reservists or National Guards would have worked if they had not been called up for military service towards FMLA eligibility.

A member of the National Guard or Reserve who is absent from employment for an extended period of time due to military service and who requests FMLA leave shortly after returning to civilian employment may not have actually worked for his or her employer for a total of 12 months or may not have performed 1250 hours of actual work with the employer in the 12 months prior to the start of the FMLA leave.

The memorandum clarifies that the months and hours that the employee would have worked, but for his or her military service, should be combined with the months employed and the hours actually worked to meet the 12-months and the 1250 hours of employment required by the FMLA.


Interaction of FMLA, ADA and workers' compensation. The final FMLA rules discuss the interaction of the FMLA, the ADA and workers' compensation. Each law has its own requirements and employers must address compliance with these laws separately. If the statutes cover the same issues, employers must provide the employee rights under the statute which grants the greatest rights to the employee. For example, an employee may be on a workers' compensation absence due to an on-the-job injury or illness which also qualifies as a serious health condition under the FMLA. The workers' compensation absence and FMLA leave may run concurrently (subject to proper notice and designation by the employer).

At some point the physician providing medical care pursuant to the workers' compensation injury may certify the employee is able to return to work in a "light duty" position. If the employer offers such a position, under the FMLA the employee is permitted but not required to accept the position. As a result, the employee may no longer qualify for payments from the workers' compensation benefit plan, but the employee is entitled to continue on unpaid FMLA leave either until the employee is able to return to the same or equivalent job the employee left or until the 12-week FMLA leave entitlement is exhausted.

The analysis does not stop here, however, because the employee's rights under the ADA must also be considered. If the employee returning from the workers' compensation injury is a qualified individual with a disability, he or she will have rights under the ADA, including reasonable accommodations by the employer. This may also include leave in addition to the FMLA leave, as long as it is not an undue hardship.

If the employer requires certifications of an employee's fitness for duty to return to work, as permitted by FMLA under a uniform policy, it must comply with the ADA requirement that a fitness for duty physical be job-related and consistent with business necessity.

Affect of the FMLA on COBRA continuation coverage. The IRS issued a notice in December, 1994, regarding the affect of the FMLA on COBRA continuation coverage issues. The following questions were answered.

1. When does a COBRA qualifying event occur? The taking of leave under the FMLA does not constitute a qualifying event. However, if an employee is covered under an employer's group health plan on the day before the first day of FMLA leave or becomes covered during the FMLA leave, the employee does not return to employment with the employer at the end of the FMLA leave, and the employee, spouse or dependent child of the employee would lose coverage (in the absence of COBRA coverage), then a COBRA qualifying event occurs.
2. When does the COBRA qualifying event occur, and how is the maximum coverage period measured? The qualifying event occurs, in the above example, when the employee does not return to work at the end of the FMLA period. It is at this time that the maximum coverage period (generally 18 months) starts to run. The qualifying event occurs on the last day of FMLA leave, even if the insurance coverage lapses during FMLA leave due to failure to pay premium.
3. Does a State law that requires a longer period of coverage than the FMLA affect the above rules? No. State law is disregarded when determining when a qualifying event occurs under COBRA.

FMLA recordkeeping requirements. Covered employers who have eligible employees must maintain records that disclose the following:

1. Payroll data.
2. Dates FMLA leave is taken. Leave must be designated as FMLA leave in the records.
3. If FMLA leave is taken in increments of less than one full day, the hours of the leave.
4. Copies of employee notices of leave, if in writing, and copies of all general and specific written notices given to employees as required under FMLA.
5. Copies of policies regarding the taking of leave.
6. Premium payments of employee benefits.
7. Records concerning any disputes between the employer and employee regarding designation as FMLA leave.

Unlawful acts. FMLA makes it unlawful for any employer to interfere with, restrain, or deny the exercise of any right provided by this law. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice, or because of involvement in any proceeding, related to FMLA.

Enforcement. FMLA is enforced by the Wage and Hour Division of the U.S. Labor Department's Employment Standards Administration. This agency investigates complaints of violations. If violations cannot be satisfactorily resolved, the Department may bring action in court to complete compliance. An eligible employee may bring a private civil action against an employer for violations.

Other provisions. Specific rules apply to employees of local education agencies. Generally, these rules provide for FMLA leave to be taken in blocks of time when the leave is needed intermittently or when leave is required near the end of a school term (semester).

Salaried executive, administrative, and professional employees of covered employers who meet the Fair Labor Standards Act (FLSA) criteria for exemption from minimum wage and overtime under Regulations, 29 CFR Part 541, do not lose their FLSA-exempt status by using any unpaid FMLA leave. This special exception to the "salary basis" requirements for FLSA's exemption extends only to "eligible" employees' use of leave required by FMLA.

The FMLA does not affect any other federal or state law which prohibits discrimination. It does not supersede any state or local law which provides more generous family or medical leave protection. Nor does it affect an employer's obligation to provide greater leave rights under a collective bargaining agreement or employment benefit plan. The FMLA also encourages employers to provide more generous leave rights.

GINA and FMLA

Employers covered by the FMLA should take note of regulations under the Genetic Information Nondicrimination Act (GINA) published by the U.S. Equal Employment Opportunity Commission (EEOC). Although the FMLA is enforced by the U.S. Department of Labor, not the EEOC, the new GINA regulations require employers who seek medical certifications in support of leave or accommodation requests - including FMLA leave - to provide new disclosures or risk violating GINA.

GINA's prohibition on acquiring genetic information does not apply to "inadvertent" acquisition of such information, or to an employer's request for family medical history in a lawful request for certification under the FMLA.

The exception for inadvertent disclosure seemed to provide some assurance to employers that lawfully requesting medical information as permitted by the FMLA, ADA and other state and federal laws would not result in a violation of GINA, even if the request happened to result in the disclosure of genetic information.

However, under GINA’s final rules, employers can rely upon this "safe harbor" only if they affirmatively notify employees of GINA's limitations on requests for genetic information. Specifically, the regulations state:

If a covered entity acquires genetic information in response to a lawful request for medical information, the acquisition of genetic information will not generally be considered inadvertent unless the covered entity directs the individual and/or health care provider from whom it requested medical information (in writing, or verbally, where the covered entity does not typically make requests for medical information in writing) not to provide genetic information.

The rules go on to state that employers can satisfy this notice requirement by using the following language in a request for medical information, such as an FMLA certification form:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information.

Genetic information may be obtained by an employer without violating GINA when it requests family medical history to comply with the certification provisions of the FMLA, state or local family leave laws, or pursuant to a policy that permits the use of leave to care for a sick family member and that requires all employees to provide information about the health condition of the family member to substantiate the need for leave. In this circumstance, the above-quoted “safe harbor” language is not required (but may be included).

• Employers should update their FMLA medical certification forms to include the "safe harbor" language above. 
• Employers who use the DOL model forms should consider including the safe harbor language as an additional attachment or addendum to the forms. 
• The disclosure language should also be included on other requests for medical information, such as requests for documentation of an employee's need for an accommodation and fitness for duty certifications. 

Military Family Leave, Family Members of Veterans, and Airline Flight Crew FMLA Leave

On March 8, 2013, the DOL issued rules to implement statutory amendments to the FMLA: the National Defense Authorization Act for Fiscal Year 2010 (FY 2010 NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA). Below is a summary of these rules.

Two types of Military Family Leave. There are 2 types of Military Family Leave entitlements:

1.Military Caregiver Leave

2.Qualifying Exigency Leave

Military Caregiver Leave. Eligible employees may take up to 26 work weeks of leave during "a single 12-month period" to care for a seriously injured or ill servicemember. An employee may be eligible for military caregiver leave if he or she is a spouse, child or parent of a servicemember or a servicemember's "next of kin." A covered servicemember is a current member of the Armed Forces, including the National Guard or Reserves, who has a serious injury or illness incurred in the line of duty.

The "single 12-month period" begins on the first day the eligible employee takes leave and ends 12 months after that date. The employer does not have discretion on how to calculate this 12-month period, regardless of how its FMLA policy defines the 12-month period for traditional FMLA leave.

Next of kin. A covered servicemember may designate in writing a blood relative as his or her “next of kin”. When no such designation is made, and there are multiple family members with the same level of relationship to the covered servicemember, all such family members shall be considered the covered servicemember’s next of kin and may take FMLA leave to provide care to the covered servicemember, either consecutively or simultaneously.

Multiple Military Caregiver Leaves. Military caregiver leave is a “per servicemember, per injury” entitlement. Accordingly, an eligible employee may take 26 workweeks of leave to care for one covered servicemember in a “single 12 month period” and take another 26 workweeks of leave to care for another servicemember in a different “single 12 month period”.

An eligible employee may also take 26 weeks of military caregiver leave for a servicemember’s injury, and then take another 26 weeks of leave for a different injury in another “single 12 month period” after the servicemember was returned to duty.

Leave that is both military caregiver leave and leave to care for a family member with a serious health condition. The regulations provide that an employer must designate the leave as military caregiver leave first. An employer is prohibited from counting leave that qualifies as both military caregiver leave and leave to care for a qualifying family member against both the 26 workweeks of military caregiver leave and 12 workweeks of leave for other FMLA-qualifying reasons.

An eligible employee is entitled to a maximum of 26 weeks of military caregiver leave and traditional FMLA leave in a "single 12-month period." Therefore, an eligible employee may, during "a single 12-month period" take 16 weeks of military caregiver leave to care for a covered servicemember and 10 weeks of FMLA leave to care for a newborn.  However, after the end of the "single 12-month period" for military caregiver leave, an employee may be entitled to non-military FMLA leave to care for a qualifying family member.

Military Caregiver Leave Expanded to Family Members of Veterans. The March, 2013 Final Rule expanded military caregiver leave to eligible employees who are the family members of certain veterans with a serious injury or illness incurred or aggravated in the line of duty on active duty and that manifested before or after the veteran left active duty. The Final Rule expanded the definition of serious injury or illness for a current servicemember to include injuries or illnesses that existed prior to the servicemember’s active duty but were aggravated in the line of duty on active duty.

Military caregiver leave - Covered veterans. The March, 2013 Final Rule limits FMLA military caregiver leave to family members of certain covered veterans. A veteran who is undergoing medical treatment, recuperation or therapy for a serious injury or illness is a covered veteran if he or she:

1. was member of the Armed Forces (including a member of the National Guard or Reserves); 
2. was discharged or released under conditions other than dishonorable; and 
3. was discharged within the five-year period before the eligible employee first takes FMLA military caregiver leave to care for the veteran. The employee’s first date of leave must be within the five-year period; however, the employee may continue to take such leave throughout the “single 12-month period” that is applicable to military caregiver leave, even if the leave extends beyond the five-year period. 

For a veteran who was discharged before the effective date of this Final Rule, the Final Rule excludes the period of time between October 28, 2009 (the law’s enactment date) and the effective date of the Final Rule (March 8, 2013) in calculating the veteran’s five-year period.

Qualifying Exigency Leave. The second type of Military Family Leave is a Qualifying Exigency Leave. Eligible employees with a spouse, son, daughter or parent on active duty or call to active duty status in the National Guard or Reserves in support of a contingency operation may use their 12-week leave entitlement to address certain qualifying exigencies.

Types of Qualifying Exigencies. Employers must provide eligible family members 12 work weeks of leave for "any qualifying exigency," which includes (1) short-notice deployment; (2) military events and related activities; (3) childcare and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; (7) post-deployment activities; and (8) additional activities not encompassed in the other categories, but agreed to by the employer and employee. 

Who qualifies. Qualifying exigency leave was limited to family members of National Guard and Reserves, and certain retired military. The March, 2013 rules expanded qualifying exigency leave to family members of servicemembers in the Regular Armed Forces on covered active duty. The Final Rule also includes a foreign country deployment requirement in the definition of covered active duty for both members of the Regular Armed Forces and members of the National Guard and Reserves.

The March, 2013 rules also created a new qualifying exigency leave category that allows an eligible employee to take leave for certain activities related to the care of the military member’s parent who is incapable of self-care where those activities arise from the military member’s covered active duty, such as arranging for alternative care; providing care on a non-routine, urgent, immediate need basis; admitting or transferring the military member’s parent to a new care facility; and attending certain meetings with staff at a care facility, such as meetings with hospice or social service providers. 

Airline Flight Crew FMLA Leave Entitlement and Usage. Eligible airline flight crew employees are entitled to 72 days of leave during any 12-month period for FMLA-qualifying reasons other than military caregiver leave, and 156 days of leave during any single 12-month period for military caregiver leave. If an airline flight crew employee takes leave intermittently or on a reduced schedule, the employer must account for the leave using an increment no greater than one day. This method of leave calculation applies only to airline flight crew employees.

Airline Flight Crew Hours of Service. The Final Rule provides that an airline flight crewmember or flight attendant will meet the FMLA hours of service eligibility requirement if he or she has worked or been paid for not less than 60 percent of the applicable total monthly guarantee (or its equivalent) and has worked or been paid for not less than 504 hours (not including personal commute time or time spent on vacation, medical, or sick leave) during the previous 12 months.

Airline employees who are not flight crew employees continue to be covered under the general hour of service eligibility requirement which requires 1,250 hours of service in the previous 12 months.

Posters

• The Family and Medical Leave Act Poster
• The Family and Medical Leave Act Poster — in Spanish

Forms

• WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition (PDF)
• WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition (PDF)
• WH-381 Notice of Eligibility and Rights & Responsibilities (PDF)
• WH-382 Designation Notice (PDF)
• WH-384 Certification of Qualifying Exigency For Military Family Leave (PDF)
• WH-385 Certification for Serious Injury or Illness of Covered Servicemember -- for Military Family Leave (PDF)
• WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (PDF)

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SOURCES

1. Adapted from the Compliance Guide to the Family and Medical Leave Act, WH Publication 1421, U.S. Department of Labor, Wage and Hour Division, June, 1993; the final Family and Medical Leave Act regulations published on January 6, 1995, by the Department of Labor; and, the December, 1994, IRS notice regarding the affect of the FMLA on COBRA continuation coverage issues.