ILNews

New FMLA rule expands provisions for military families

Back to TopCommentsE-mailPrintBookmark and Share
Indiana Lawyer Focus

The U.S. Department of Labor marked the 20th anniversary of the Family and Medical Leave Act by doing something that rarely happens in Washington, D.C. – it issued a new rule before the deadline.

Clarifying the amendments to the FMLA made by the 2010 fiscal year National Defense Authorization Act, this final rule focuses on expanding the leave provisions for military families. The expansion, especially for the military spouses and children, is seen as a reaction to the country’s extended military involvement in Iraq and Afghanistan.

taylor Taylor

The final rule also provides airline flight crews, who often work erratic schedules, greater access to FMLA benefits and clarifies changes for calculating intermittent FMLA leave.

Indiana companies will most likely be impacted by the military provisions since the state has a healthy number of National Guard and Reserve members. Still, the changes introduced by the final rule are not sending clients to the phones to call their attorneys. The provisions were expected, the language of the final rule is mostly clear and, to date, many attorneys say there are no gray areas.

However, questions may arise as the final rule gets implemented.

“I don’t think that any of this was a huge surprise,” said Patricia Ogden, partner at Barnes & Thornburg LLP. “I think expanding coverage to military members was kind of an evolving issue.”

The FMLA was originally enacted on Feb. 5, 1993. It was designed to allow workers to take up to 12 weeks of unpaid leave from their offices and factory floors without having to worry about losing their jobs. Initially the qualifying events for FMLA were limited to the employee needing time to attend to his or her own serious health condition; to care for a spouse, parent, son or daughter with a serious medical problem; or to provide care after the birth or adoption of a child.

The 2013 final rule is the latest expansion of the FMLA. Also, it is an example of the Act growing beyond its original intention.

Military leave

Under the final rule, families of military members will have more circumstances for which they can take time off work.

Key provisions include:

• Qualifying exigency leave – a situation requiring an urgent response – has been expanded to include eligible employees with family members serving in the regular Armed Forces and deploying to a foreign country. Previously, only employees with a relative in the National Guard or Reserves were entitled to take leave for a qualifying exigency. For qualifying exigency events, spouses, adult children and parents of military members will be able to take FMLA leave for such circumstances as to prepare for a quick deployment, to attend to military activities, to attend to childcare or school events, to make financial and legal arrangements, counseling, and to attend to post-deployment activities.

• Military family members can take FMLA to provide parental care. In the instance where a military member is taking care of his or her infirmed parent when called to duty, the spouse or adult children may take leave to arrange for the parent’s care.

• The final rule expands the “military caregiver leave” provision to allow family members time off to care for eligible veterans with a serious injury or illness who are receiving medical treatment, recuperating or receiving therapy.

cassman Cassman

• Another expansion of the “military caregiver leave” provision enables family to take leave to care for service member’s injuries or illnesses that were pre-existing to deployment and were aggravated in the line of duty.

The new provision covering pre-existing conditions is an area where Lewis Wagner LLP attorney Stephanie Cassman sees a gap in the final rule that may lead to some confusion. Disputes might arise over whether the injury or illness is related to active duty in the first place and if the deployment actually did aggravate the condition.

The language “aggravated” is unclear, she said.

The final rule became effective March 8. Although the changes to the FMLA were not unexpected, Ogden noted employers will have to update their forms and hang the new poster that informs employees of the alterations.

Act’s anniversary

In the 20 years since the FMLA was enacted, attorneys say it is one of the most significant employment laws ever created, comparable to Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990. Also, it is a rule they frequently deal with because employers often have questions caused by the complexity of the rule and the array of issues they are required to navigate.

Violating the FMLA, whether retaliating against a worker who took FMLA leave or interfering with an employee’s ability to take leave, can result in litigation. Consequently, when employers have doubts about an employee’s eligibility or if the reason for the leave is covered by the Act, they usually grant the leave rather than face a possible lawsuit.

Christopher Taylor, of counsel at Bingham Greenebaum Doll LLP, compared the reaction that employers had when the FMLA was first introduced as being similar to how they are receiving the Patient Protection and Affordable Care Act.

Initially, employers were resistant, confused and angry. However, Taylor said, FMLA is now part of the landscape and businesses accept it.

“I think it has certainly been the most significant employment law of the last 20 years,” he said.

As for the future of FMLA, Cassman predicted the Act will continue to expand beyond its original medical focus.

She pointed to the 2013 final rule which increases the number of days from five to 15 that a family member can take when the service member comes home for rest and recuperation. Truly, she said, this provision provides leave just to visit and has nothing to do with any health care concerns.

wilson Wilson

“In my opinion, it has expanded more than what was ever anticipated when the FMLA was enacted 20 years ago,” Cassman said.

She observed the reason for the growth of FMLA is probably because of changes in the expectations around work and family. No longer do employees keep their office life and home life completely separated. The two are merging and employers have to recognize the need for workers to address family issues.

Amy Wilson, attorney at the Indianapolis office of Frost Brown Todd LLC, echoed Cassman. She noted that the new provisions allowing military family members leave to take care of child care and financial obligations exceeds the medical intent of the original language.

Looking ahead, Wilson can foresee the Act being expanded to give protection for time off to attend activities of children and grandchildren, or maybe even routine medical appointments.

However, she believes a more likely expansion of FMLA would be to include smaller employers. Currently the Act covers employers with 50 workers or more.

Another possible future change is mandating that FMLA leave be paid. States and even some cities have enacted legislation requiring employers to pay for FMLA leave. Part of the reasoning, Wilson said, is that the employee will need to have the paycheck during the leave in order to take care of the medical need.•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

ADVERTISEMENT