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New FMLA rule expands provisions for military families

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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The FMLA was originally enacted on Feb. 5, 1993.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.•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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