Changes to Military Leave and FMLA

This information comes from Michael Best & Freidrich LLP. – Reeve


In our experience, the military leave provisions of the FMLA have not been a problem for employers. However, the changes do impact employer policies and forms. Of significant note:

  • The regulations address FMLA leave taken by an employee
    to care for the serious illness or injury of a veteran of the Armed
    Forces. The regulations: (i) define who constitutes a “covered
    veteran”; and (ii) incorporate four different alternative standards
    by which the veteran’s serious illness or injury may be determined. The
    regulations also announce the DOL’s stance that leave granted to veterans
    pursuant to the 2009 statutory changes to the FMLA, but prior to the
    effective date of the final regulations would not “count” as
    leave for a covered service member’s illness or injury (even though
    employers may have fully complied with the statutory requirements at the
    time). Thus, the DOL has created in the new regulations an eligibility
    “amnesty” period for an employee seeking leave to care for a
    seriously ill or injured veteran who achieved such status after, or had
    such status on, the date of the 2009 adoption of the change in the law.
  • The regulations permit eligible employees to obtain
    certification of a service member’s serious injury or illness from any
    health care provider, not only those affiliated with the Department of
    Defense, Veterans Administration, or TRICARE Networks (as was previously
    the requirement).
  • The regulations extend qualifying exigency leave to
    eligible employees who are family members of members of the regular Armed
    Forces and adding the requirement for all military members to be deployed
    to a foreign country in order to be on “active duty” under the
  • The regulations increase the amount of time an employee
    may take for qualifying exigency leave related to the military member’s
    Rest and Recuperation leave from five days to up to fifteen days.
  • The regulations create an additional qualifying
    exigency leave category permitting employees to take FMLA to care for the
    military member’s parent who is incapable of self-care while the military
    member is on covered active duty.

In addition, concurrent with the new
regulations, the DOL has issued a model certification form to address leave to
care for the serious illness or injury of a veteran.