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New Family and Medical Leave Act (“FMLA”) Law Expected to Benefit Thousands of Military Families

More than 43,000 employees will take advantage of new benefits under the Family and Medical Leave Act (“FMLA”), according to the U.S. Department of Labor. In the National Defense Authorization Act for Fiscal Year 2010, Congress expanded the scope of the FMLA to benefit families of service members and veterans. In separate legislation, Congress expanded FMLA benefits for airline crew members. Last week, the Department of Labor issued regulations that will implement the new benefits. The Department’s action came on the 20th anniversary of the FMLA’s enactment. The regulations go into effect on March 8, 2013. 

Under the newly issued regulations, the FMLA will be expanded for the following employees:

  • Family members of Regular Armed Forces for certain situations that arise during the service member’s deployment to a foreign country. The law previously provided unpaid leave in certain circumstances to employees who had family members in the National Guard or Reserves who were being called to active duty. The new regulations extend the unpaid leave benefits for family members of Regular Armed Forces personnel being deployed to a foreign country. Family members might take unpaid leave to address issues arising from deployments on short-notice, to attend informational briefings relating to the active duty, to arrange for child care or schools, to make financial and legal arrangements to address the military member’s absence, to spend time with the military member who is on short-term temporary, Rest and Recuperation leave, and to attend arrival ceremonies for the returning military member.
  • Family members of certain veterans with serious injuries or illnesses. The law previously covered only family members of current service members with a serious injury or illness; it provided those family members up to 26 weeks of military caregiver leave in a 12-month period. The new regulations provide caregiver leave to family members of veterans suffering from a serious injury or illness, if the veteran was a member of the Armed Forces at any time during the preceding five years. The regulations also provide caregiver leave to family members of current service personnel whose pre-existing injury or illness was aggravated by service in the line of duty and that renders them medically unfit to perform their duties;
  • Airline flight crew members and flight attendants. The new regulations establish special eligibility requirements for airline flight crew members and flight attendants. These regulations are designed to accommodate the unique schedules of flight crews and to make it easier for them to take advantage of the FMLA. Employers are tasked with special recordkeeping requirements.

The Department of Labor estimates that 381,000 employers and government agencies which cumulatively employ 91.1 million workers will potentially be affected by new regulations. The annual cost of providing the new benefits will average $43 million over the next 10 years, according to the agency. The largest component of the costs, the Department projects, will relate to the provision of health benefits.

Despite the costs, the Department anticipates what it terms “significant benefits” from the new regulations. As one example, it states that “providing job-protected leave for caregivers of covered veterans under the military caregiver provision is expected to increase family involvement in the veteran’s recovery, improve self-reliance and access to resources for caregivers, and reduce negative outcomes for covered veterans and their families.”

The FMLA generally covers employers with 50 or more employees. To be entitled to leave, employees must have been employed for at least a year and have worked at least 1,250 hours in the prior 12 months. Employees who are eligible for FMLA leave may take it in a block or, under certain circumstances, intermittently or may work a reduced schedule. Once their leave is completed, the employees have the right to return to the same or an equivalent position with equivalent pay, benefits and working conditions. While on leave, employees have the right to continue their group health care coverage as if they were still working and the responsibility, if they desire continued coverage, to pay their share of the premiums.

© 2020 Dinsmore & Shohl LLP. All rights reserved.National Law Review, Volume III, Number 65


About this Author

Dinsmore’s Labor & Employment Practice Group is one of the largest in the region. The Group’s attorneys represent numerous public and private employers, including Fortune 500 companies, in matters throughout the country in all phases of employment law. We also assist national companies with respect to international labor and employment issues, as well as international companies with respect to their U.S. operations. Controversies that involve allegations of employment discrimination because of race, sex, religion, disability, national origin, veterans’ status, family...