The FMLA Blog

Consensus Suggests that New Military Family Leave Regulations Effective Now

As reported in an earlier post, on October 27, 2009, President Obama signed the 2010 National Defense Authorization Act (2010 NDAA) into law. The 2010 NDAA modified the military family leave provisions of Titles I and II of the FMLA.  As far as I can tell, to date, neither the DOL or OPM have taken an official position regarding the effective date of the amendments.  Based on my review, the consensus of major labor and employment law firms and interested association is that, absent an indication otherwise, the legislation went into effect immediately when President Obama signed it (i.e., October 27, 2009). 

Recall, however, that, at least as far as the DOL was concerned, the 2009 NDAA amendment of the FMLA did not all go into effective immediately.  The DOL took the position that the military caregiver provisions went into effect immediately, but the qualifying exigency leave provisions did not because the statute directed DOL to determine what qualifying exigencies were covered.   

Unless and until the DOL or OPM issue an official statement otherwise, employers would be well-advised to immediately apply the new military family leave provisions.  Until regulations are issued, employers need to do the best they can to comply with the statutory language. 

For federal agency employers covered by Title II, the 2010 NDAA FMLA amendments allow employees to take qualifying exigency leave.  Until OPM issues regulations implementing this right, federal employers should strongly consider applying the Title I regulations on this issue.  The central part of those regulations are codified at 29 CFR 825.112(a)(5), 825.126, and 825.309. 

I offer three thoughts in support of my suggestion.  First, 5 USC 6387 directs the OPM to issue FMLA regulations that are consistent, to the extent appropriate, to the DOL FMLA regulations.  Second, the OPM's recently proposed military family leave regulations are nearly identical to the DOL comparable regulations.  Third, the guidance provided by the DOL regulations is a whole lot better than simply guessing at what might be a qualifying exigency under Title II.

What really needs to happen is that the DOL and OPM need to announce whether the 2010 NDAA FMLA amendments are effective and, if not, when they will be effective (i.e., when regulations are issued).   

  

FMLA To Be Modified Today!

The FMLA will be modified today.  President Obama is set to sign the National Defense Authorization Act of 2010 at 2:30 p.m. EST today. Section 565 of that legislation modifies the FMLA in several important ways:

• Eligible employees will be able to take military caregiver leave for veterans who served in the regular Armed Forces, the Reserves within 5 years of the date the veterans undergoes medical treatment, recuperation, or therapy.  Currently, military caregiver leave is only available to care for current members of the Armed Forces, Guard, or Reserves.
• Military caregiver leave is expanded to cover aggravation of existing or preexisting injuries incurred in the line of duty while on active duty.  Currently, DOL regulations exclude aggravation of existing injuries incurred in the line of duty while on active duty as a basis for taking military caregiver leave.  Only where the serious injury or illness rises to the level of a subsequent injury or illness will an employee be entitled to take military caregiver leave for the same covered servicemember.
• Qualifying exigency leave is expanded to cover members of the regular Armed Forces who are deployed to a foreign country.  Currently, qualifying exigency leave is only available for covered military members in the Reserves or Guard.
• The legislation extend qualifying exigency leave to federal employees covered by Title II of the FMLA.  Currently, federal employees covered by Title II do not have the right to take qualifying exigency leave.

The legislation directs the U.S. Department of Labor and Office of Personnel Management to work with the Secretary's of Defense and the Veterans Administration in formulating regulations to carry out the amendments.  It is unclear whether the legislation is effective immediately or whether it will become effective with the issuance of implementing regulations.  Consultation on this issue with DOL or OPM is highly recommended.

Comment: The legislation effectively implements bills introduced by Senator Dodd (D-CT) and Congressman Woolsey (D-CA)(H.R. 3403, S. 1543).  The amendments should greatly expand the availability and use of military family leave. 

Employers should review and adjust their FMLA leave policies accordingly to reflect the military family leave amendments.  I expect additional expansions of the FMLA in order for President Obama to fulfill his campaign promises to extend FMLA coverage to more employers, and to cover more family members and for more activities (e.g., school functions).  

NEWS FLASH: OPM Issues Proposed Military Family Leave Regulations Covering Federal Employees

On August 26, 2009, the OPM issued proposed FMLA regulations implementing military family leave for purposes of Title II of the FMLA.  The proposed regulations are set forth in 74 Federal Register 43064-43082 (Aug. 26, 2009).  A link to the new regulations is provided below.  

http://frwebgate2.access.gpo.gov/cgi-bin/TEXTgate.cgi?WAISdocID=OvRJay/0/1/0&WAISaction=retrieve

The proposal includes regulations implement a Title II employee's right to take up to 26 administrative workweeks of FMLA leave a year to care for a member of the Armed Forces who is injured in the line of duty while on active duty (military caregiver leave).  It also amends the rules on advancing sick leave, including sick leave that may be substituted for unpaid military caregiver leave.  The OPM is also proposing organizational changes to the existing sick leave and FMLA regulations "to enhance reader understanding and administration of these programs.

SIGNIFICANTLY, the OPM also announced that it was considering whether a comprehensive review of the OPM's FMLA regulations is needed to identify any problems or concerns that stakeholders have encountered.  OPM specifically asks agencies for their recommendations on what significant changes, if any, are needed within the existing OPM FMLA regulatory framework.

Comments regarding the proposed FMLA regulations must be received on or before October 26, 2009. To submit comments, you must use RIN number "3206-AL91."  Comments may be submitted by the following methods:

• Federal eRulmaking Portal: http://www.regulations.gov.  Follow the instructions.
• Mail: Jerome D. Mikowicz, Deputy Associate Director, Center for Pay and Leave Administration, U.S. Office of Personnel Management, Room 7H31, 1900 E Street, NW., Washington DC 20415-8200

For further information, contact: Doris Rippey by telephone at (202) 606-2858; by fax at (202) 606-0824; or by e-mail at pay-performance-policy@opm.gov.

Comment:  Once I review the regulations I will issue another post.  All stakeholders (federal agencies, unions, employee associations, enforcement agencies) are not going to want to pass up the chance to influence the shaping of the Title IIFMLA regulations.  Speak now or forever hold your peace!

Legislation Introduced Expanding Military Family Leave

The parade of legislation to expand the FMLA continues.  On July 30, 2009, Senator Chris Dodd (D-CT) and Congressman Lynn Woolsey (D-CA-6) introduced the "Supporting Military Families Act of 2009" in their respective chambers (H.R. 3403, S. 1543).  The legislation makes three major changes to the availability of military family leave:

• It allows covered family members to take up to 26 weeks of leave a year to care for a seriously injured  veteran for up to five years after separation from military service.  Currently, military caregiver leave is not available to care for veterans;   
• It extends the availability of military caregiver leave where a pre-existing serous injury or illness is aggravated by active duty service.  Under the current DOL regulations, aggravation of an existing serious injury or illness is not covered by the FMLA; and
• It extends the availability of 12 weeks of qualifying exigency leave to cover active duty members in the regular armed forces.  Currently, DOL regulations provide that qualifying exigency leave is limited where a family member is in the Reserve or National Guard.

Comment:  The legislation is worth watching.  Senator Dodd was one of the original sponsors of the FMLA.  His amendment to the FMLA is co-sponsored by Senators Kennedy and Lieberman.  In the House Congressman Woolsey has 34 cosponsors.  I believe this legislation has an excellent chance of being enacted. 

Is Paid Military Caregiver Leave on the Horizon?

On January 28, 2008, the FMLA was amended to allow eligible employees to take up to 26 weeks of FMLA leave in a single 12-month period to care for a covered servicemember suffering from a serious injury or illness incurred in the line of duty while on active duty.  The leave, however, is unpaid.  That may change.

Senator Richard Durbin (D-IL), with 12 cosponsors, introduced S. 543, the Veteran and Servicemember  Support Act of 2009.  The Act directs the VA, in collaboration with the Secretary of Defense, to set up a two-year pilot program at six facilities nationwide to train family member caregivers who agree to provide caregiver services to eligible veterans and members of the Armed Forces.  Caregivers who complete the training program will be certified as caregivers.  The program proposes to pay eligible family caregivers a reasonable amount for providing care service.  The amount will vary depending on the amount and intensity of care needed.   

If enacted, the legislation could lead to the federal government (at the moment) paying certified family members to care for their seriously injured or ill covered servicemembers in the Armed Forces.  If the FMLA applies, the combination would result in taxpayer paid military caregiver leave. 

FMLA military caregiver leave does not apply to veterans.  However, if the veteran is a covered family member and has an FMLA-qualifying serious health condition, the program may also result, as a practical matter, in taxpayer paid FMLA leave. 

Comment:  Legislation proposing paid leave is all the rage this summer.  Given that Senator Durbin in the Majority Whip, the legislation stands a very good chance of passing in the Senate.  However, it will be interesting to see what actually makes it through the legislative sausage factory given the economic climate.   

Back to the Future: Legislation Introduced to Repeal New DOL FMLA Regulations and Restore Former Regulations

On April 29, 2009, Congresswomen Carol Shea-Porter (D-NH), along with 24 cosponsors, introduced H.R. 2161, entitled: To Nullify Certain Regulations Promulgated Under the Family and Medical Leave Act of 1993 and Restore Prior Regulations and Direct the Secretary of Labor to Revise Certain Regulations Under that Act.  Representative Shea-Porter explained that the purpose of H.R. 2132 was to "restore the Family and Medical Leave Act to its original intent and spirit."

The legislation seeks to repeal and restore 825.205(a)(2), 825.207, 825.215, 825.220(d), 825.302, 825.303, 825.307, and 825.312.  It also seeks to modify 825.308(b), 825.115(a) & (c), and to revise the medical certification form. 

A review of the proposed repeal of the new and restoration of the old follows.

Special Alert: New DOL FMLA Regulations to be Published Monday

The U.S. Labor Department announced on Thursday that revised regulations implementing the FMLA will be published in the Federal Register on Monday, November 17, 2008.  The revisions will include regulations implementing the January 28, 2008, military leave amendments to the FMLA.  They will also incorporate changes to the existing FMLA regulations that the DOL proposed in the February 11, 2008 Federal Register.   

The story was reported by Jessie J. Holland of the Associated Press.  http://www.federalnewsradio.com/?nid=78&sid=1517465

Comment:  You can (and should) get the Federal Register version of the FMLA regulations by Goggling to the Federal Register on Monday.  Once there, plug in "family medical leave" as your search term in the current edition of the Federal Register.  The new FMLA regulations should pop up at the top of the search.

Securing the Federal Register version of he regulations is important as the DOL will reveal critical insights into their thinking on the meaning of the regulations. 

DOL Forwards New FMLA Regulations to OMB for Approval

On October 20, 2008, the U.S. Department of Labor forwarded revised FMLA regulations to the Office of Management and Budget for approval.  If approved, the regulations could be issued in the next few weeks.  The White House previously issued a memorandum to all federal agencies setting November 1, 2008, as the deadline for the issuance of any new final regulations.  The White House memo did, however, reserve the right to allow exceptions. 

The scope of the DOL regulations forwarded to OMB is unclear.  The DOL was preparing final regulations to implement the military family leave amendments to the FMLA.  DOL also proposed changes to the existing FMLA regulations in light of case law and statutory developments since the enactment of the original regulations some 15 years ago.     

Stay tuned! 

Thanks to the BLR for the tip.  http://hr.blr.com/news.aspx?id=79032

  

White House Timetable for Agencies to Issue Regulations: What Impact on the FMLA?

On May 9, White House chief of staff Joshua Bolton issued a memorandum to the heads of all executive departments and agencies setting June 1 as the deadline to propose any new regulations, and November 1 as the deadline to issue final regulations. The memo mentioned that exceptions to these deadlines could be granted.  The purpose for establishing these deadlines was to avoid the appearance that the Bush administration was rushing the implementation of new rules on its way out the door.  President Clinton imposed a similar timetable during the last year of his administration. 

FMLA Impact

The DOL issued proposed changes to the existing FMLA regulations on February 11, 2008.  The DOL would appear to have until November 1 to issue final regulations implementing those proposals. 

The DOL has also indicated its intention to skip proposed rules and move directly to the issuance of  final regulations implementing the recently enacted military family leave amendments to the FMLA.  As such, the DOL would appear to have until November 1 to issue the final military family leave regulations. 

Comment:  New/revised FMLA regulations will be here sooner than you think.  Stay tuned! 

Paid Week of "Love Leave" Proposed

Proposed legislation would grant workers the right to a week of paid leave for a "love vacation" to reduce, its sponsor said, the high divorce rate and "revive passion in a population whose workdays are growing longer."  During the seven days, "couples could devote themselves to eachother both at an erotic and emotional level and find their way back to the path of love in order to find the wellspring of love again."  The proposed legislation has 13 co-sponsors. 

Comment: American employers can breathe a sigh of relief as the legislation was proposed in Finland, where employees are already entitled to 25 paid days of vacation a year plus 10 paid public holidays.  Makes the FMLA look rather tame by comparison. 

You can view a news article on the issue at http://www.boingboing.net/2008/03/16/finnish-mp-proposes.html