The Family and Medical Leave Act
Federal RegisterFeb 6, 2013
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DEPARTMENT OF LABOR
Wage and Hour Division
29 CFR Part 825
RIN 1215-AB76, RIN 1235-AA03
The Family and Medical Leave Act
AGENCY:
Wage and Hour Division, Department of Labor.
ACTION:
Final rule.
SUMMARY:
This Final Rule amends certain regulations of the Family and Medical Leave Act of 1993 (the FMLA or the Act) to implement amendments to the military leave provisions of the Act made by the National Defense Authorization Act for Fiscal Year 2010, which extends the availability of FMLA leave to family members of members of the Regular Armed Forces for qualifying exigencies arising out of the servicemember's deployment; defines those deployments covered under these provisions; extends FMLA military caregiver leave for family members of current servicemembers to include an injury or illness that existed prior to service and was aggravated in the line of duty on active duty; and extends FMLA military caregiver leave to family members of certain veterans with serious injuries or illnesses. This Final Rule also amends the regulations to implement the Airline Flight Crew Technical Corrections Act, which establishes eligibility requirements specifically for airline flight crewmembers and flight attendants for FMLA leave and authorizes the Department to issue regulations regarding the calculation of leave for such employees as well as special recordkeeping requirements for their employers. In addition, the Final Rule includes clarifying changes concerning the calculation of intermittent or reduced schedule FMLA leave; reorganization of certain sections to enhance clarity; the removal of the forms from the regulations; and technical corrections to the current regulations.
DATES:
This Final Rule is effective March 8, 2013.
FOR FURTHER INFORMATION CONTACT:
Mary Ziegler, Director of the Division of Regulation, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW., Washington, DC 20210; telephone: (202) 693-0406 (this is not a toll-free number). Copies of this rule may be obtained in alternative formats (large print, Braille, audio tape or disc), upon request, by calling (202) 693-0675 (this is not a toll-free number). TTY/TDD callers may dial toll-free 1-877-889-5627 to obtain information or request materials in alternative formats.
Questions of interpretation and/or enforcement of the agency's regulations may be directed to the nearest Wage and Hour Division (WHD) district office. Locate the nearest office by calling the WHD's toll-free help line at (866) 4US-WAGE ((866) 487-9243) between 8 a.m. and 5 p.m. in your local time zone, or log onto the WHD's Web site for a nationwide listing of WHD district and area offices at
http://www.dol.gov/whd/america2.htm.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
Purpose of the Regulatory Action
This Final Rule amends certain regulations of the FMLA to implement amendments to the military leave provisions of the Act made by the National Defense Authorization Act for Fiscal Year 2010 (FY 2010 NDAA), to implement amendments to the hours of service requirements made by the Airline Flight Crew Technical Corrections Act (AFCTCA) and add new leave calculation regulations for flight crew employees, and to clarify existing regulatory provisions related to intermittent leave and make other clarifying changes.
On November 17, 2008, the Department issued a Final Rule (2008 Final Rule) implementing amendments to the FMLA made by the National Defense Authorization Act for Fiscal Year 2008 (FY 2008 NDAA). 73 FR 67934. The FY 2008 NDAA created two new categories of leave: qualifying exigency leave and military caregiver leave. Under the FY 2008 NDAA's qualifying exigency leave provision, eligible family members of members of the National Guard and Reserves are entitled to take FMLA leave for qualifying exigencies, as defined by the Secretary of Labor, arising out of the military member's deployment in support of a contingency operation. In the 2008 Final Rule, the Secretary defined qualifying exigency using eight categories:
short notice deployment, military events and related activities,
childcare and school activities, financial and legal arrangements,
counseling, rest and recuperation,
post-deployment activities,
and
additional activities
to which both the employer and employee agree. Under the FY 2008 NDAA's military caregiver leave provision, eligible family members of current servicemembers are entitled to take up to 26 workweeks of military caregiver leave in a single 12-month period to care for a current servicemember who incurred a serious injury or illness in the line of duty on active duty that renders the servicemember unable to perform the duties of his or her office, grade, rank, or rating. The Secretary implemented the FY 2008 amendments in the 2008 Final Rule.
The FY 2010 NDAA further amends the FMLA by expanding the qualifying exigency leave provision to include leave for eligible family members of members of the Regular Armed Forces and by adding a foreign deployment requirement for both members of the Regular Armed Forces and the National Guard and Reserves. The FY 2010 NDAA amendments also expands military caregiver leave to cover injuries or illnesses that existed prior to the servicemember's active duty and were aggravated in the line of duty on active duty in the Armed Forces. 29 U.S.C. 2611(18)(A). It further expands the military caregiver leave provision to provide leave to eligible family members of certain veterans with a serious injury or illness who are receiving medical treatment, recuperation, or therapy, if the veteran was a member of the Armed Forces at any time during the period of five years preceding the date of the medical treatment, recuperation, or therapy. 29 U.S.C. 2611(15)(B). The amendments define a serious injury or illness for a veteran as a “qualifying (as defined by the Secretary of Labor) injury or illness that was incurred by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member's active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that manifested before or after the member becomes a veteran.” 29 U.S.C. 2611(18)(B).
The AFCTCA establishes special hours of service eligibility requirements for airline flight crewmembers and flight attendants (collectively referred to as airline flight crew employees) for FMLA leave. The amendments provide that an airline flight crew employee meets the hours of service requirement if during the previous 12-month period, he or she (1) has worked or been paid for not less than 60 percent of the applicable total monthly guarantee (or the equivalent) and (2) has worked or been paid for not less than 504 hours, not including personal commute time or time spent on vacation, medical, or sick leave. Congress authorized the Department to issue regulations providing a method of calculating leave for airline flight crew employees as well as regulations regarding employers' maintenance of
certain information specific to airline flight crew employees.
Finally, in this rulemaking, the Department also took the opportunity to make organizational improvements and clarifying edits to enhance the regulated community's understanding of the regulations.
Summary of the Major Provisions of the Final Rule
To implement the amendments made to the FMLA by the FY 2010 NDAA, this Final Rule revises the FMLA regulations to reflect the expansion of qualifying exigency leave to include eligible employees with family members serving in the Regular Armed Forces and the addition of the foreign deployment requirement. It also increases the length of time an eligible family member may take for the qualifying exigency leave reason of Rest and Recuperation from five days to up to a maximum of 15 days and creates a new qualifying exigency leave category for
parental care.
In military caregiver leave, the Final Rule expands the definition of
serious injury or illness
to include pre-existing injuries or illnesses of current service members that were aggravated in the line of duty, and expands military caregiver leave to care for covered veterans. It defines a
covered veteran
as an individual who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness and who was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran. The Final Rule interprets the five-year period of eligibility for a covered veteran to exclude the period between the enactment of the FY 2010 NDAA on October 28, 2009, and the effective date of this Final Rule to protect the military caregiver leave entitlement of family members of veterans whose five-year period has either expired or has been diminished during that time. The Final Rule defines a
serious injury or illness of a covered veteran
as: (i) A continuation of a serious injury or illness that was incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the servicemember unable to perform the duties of the servicemember's office, grade, rank, or rating; (ii) a physical or mental condition for which the covered veteran has received a U.S. Department of Veterans Affairs Service Related Disability Rating (VASRD) of 50 percent or higher, and such VASRD rating is based, in whole or in part, on the condition precipitating the need for military caregiver leave; (iii) a physical or mental condition that substantially impairs the covered veteran's ability to secure or follow a substantially gainful occupation by reason of a disability or disabilities related to military service, or would do so absent treatment; or (iv) an injury, including a psychological injury, on the basis of which the covered veteran has been enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.
In addition to revising the regulations to reflect the statutory amendments, the Final Rule also increases the length of time an eligible family member make take for the qualifying exigency leave reason of
Rest and Recuperation
from five days to up to a maximum of 15 days to match the military member's Rest and Recuperation leave orders, and creates a new qualifying exigency leave category for
parental care.
The Final Rule also expands the list of authorized health care providers from whom an employee may obtain a certification of the servicemember's serious injury or illness to include authorized health care providers as defined by the regulations in § 825.125. The Final Rule permits an employer to request a second and third opinion for medical certifications obtained from a health care provider who is not affiliated with the Department of Defense (DOD), the Department of Veterans Affairs (VA), or the TRICARE network.
This Final Rule also implements the amendments made to the FMLA by the AFCTCA. The Final Rule relocates the special rules applicable only to airline flight crew employees and their employers to revised Subpart H—Special Rules Applicable to Airline Flight Crew Employees to provide clarity to employees and employers and to emphasize the distinction between the eligibility requirements and calculation of FMLA leave for airline flight crew employees and all other employees. Additionally, the Final Rule adopts a uniform entitlement for airline flight crew employees of 72 days of leave for one or more of the FMLA-qualifying reasons set forth in §§ 825.112(a)(1)-(5) and 156 days of military caregiver leave under § 825.112(a)(6). The Final Rule further provides that employers must account for an airline flight crew employee's FMLA leave usage utilizing an increment no greater than one day. As revised, Subpart H also includes special recordkeeping requirements applicable to the employers of airline flight crew employees.
The Final Rule also revises various regulatory sections the Department revisited in the course of implementing the statutory amendments described previously. For instance, the Department moves the definitions section from current § 825.800 to currently reserved § 825.102. These revisions also include clarifications to the rules for calculation of intermittent or reduced schedule FMLA leave, including clarifying regulatory language regarding increments of leave and providing additional explanation of the physical impossibility rule. The Department also made modifications to ensure consistency with other statutes, such as amending references to the Uniformed Services Employment and Reemployment Rights Act (USERRA) to more closely mirror the USERRA regulations, and setting forth an employer's obligation to comply with the confidentiality requirements of the Genetic Information Nondiscrimination Act of 2008 (GINA).
Finally, the Final Rule updates the FMLA optional use forms (WH-380, WH-381, WH-382, WH-384, and WH-385) to reflect the statutory changes, creates a new optional use form for the certification of a serious injury or illness for a veteran (WH-385-V), and removes the forms from the regulations.
This Final Rule revises only some provisions of the existing regulations and creates certain new provisions, but the Department is republishing the entirety of the FMLA regulations (Part 825). The Department is republishing the unchanged provisions along with the revised provisions as a convenience to readers and to ensure readers are provided the context for the changes made in the Final Rule.
Costs and Benefits
The Department estimates that 381,000 covered firms and government agencies owning 1.2 million establishments and employing 91.1 million workers will potentially be affected by the Final Rule changes. These employers have an annual payroll of $5.0 trillion, estimated annual revenues of $23.7 trillion, and estimated net income of $1.03 trillion.
See
Table 3 in the Summary of Impacts.
Under the AFCTCA, the Department estimates that nearly 6,000 flight attendants, pilots, co-pilots, and flight engineers will take new FMLA leaves. The Department estimates that each individual will take 1.5 leaves, for a total of 8,930 leaves. Under the FY 2010 NDAA amendments, the Department estimates that approximately 30,900 eligible employees will take 926,000 days (7.4 million hours) of FMLA leave annually to address qualifying exigencies; and, that nearly 7,000
eligible employees will take 385,000 days (3.1 million hours) of FMLA leave annually to act as a caregiver for a veteran who is undergoing treatment for a serious illness or injury.
See
Table ES-1.
Table ES-1—Summary of Leaves Taken as a Result of the Rule
Leave taker
Covered service-members and veterans
Number eligible for leave
Number who will take FMLA leave
Number of leaves
(1,000)
Days of leave
(1,000)
Hours of leave
(mil.)
Flight Crew [a]
90,560
5,950
8.9
8.9
Pilots
41,470
2,070
3.1
3.1
Flight Attendants
49,090
3,880
5.8
5.8
NDAA 2010 [b]
218,130
219,908
37,896
758
1,311
10.5
Qualifying Exigency
197,000
193,000
30,900
401
926
7.4
Military Caregiver
21,130
26,908
6,966
357
385
3.1
[a] Number eligible for leave represents only those flight crew employees not currently covered by an FMLA-type provision under a CBA; thus, the number of leaves equals new leaves as a result of this rule. The Department did not estimate the number of hours of leave for flight crew employees because the rule establishes a bank of days of leave, to be used in full day increments.
[b] Number of days and hours of leave estimated based on leave profiles, see discussion for more detail.
The Department projects that the annualized cost of the rule will average somewhat less than $43 million per year over 10 years. The rule is expected to cost $53.9 million in the first year, and $41.3 million per year in subsequent years. The amendment to extend FMLA provisions to flight crew employees accounts for 0.7 percent of first year costs and 0.9 percent in subsequent years, while military exigency and caregiver leave account for 75.9 percent of first year costs and 99.1 percent of costs in subsequent years. Regulatory familiarization costs account for 23.4 percent of first year costs. The costs related to the provision of health benefits account for the largest share of costs, about 44.0 percent of costs in the first year of the rule, and 57.5 percent of costs each in each of the following years.
See
Table ES-2.
Table ES-2—Summary of Impact of Changes to FMLA [a]
Component
Year 1
($ mil)
Year 2
($ mil)
Annualized ($ mil) [b]
Real discount rate 3%
Real discount rate 7%
Total
$53.9
$41.3
$42.8
$43.0
Cost of Each Amendment:
Any FMLA regulatory revision
12.6
0.0
1.4
1.7
Flight Crew Technical Amendment
0.4
0.4
0.4
0.4
NDAA 2010
41.0
41.0
41.0
41.0
NDAA Subtotal: Qualifying Exigency
25.8
25.8
25.8
25.8
NDAA Subtotal: Military Caregiver
15.1
15.1
15.1
15.1
Cost of Each Requirement:
Regulatory Familiarization
12.6
0.0
1.4
1.7
Employer Notices
17.1
17.1
17.1
17.1
Certifications
0.4
0.4
0.4
0.4
Health Benefits
23.8
23.8
23.8
23.8
[a] Columns may not sum due to rounding.
[b] Costs are annualized over 10 years.
The Department anticipates significant benefits resulting from the Final Rule. For example, 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. Also, the extension of FMLA leave entitlement to flight crew employees will allow them to enjoy all the benefits of FMLA coverage, and may also reduce employer costs due to presenteeism (the loss of productivity due to employees working while injured or ill) and a resulting increase in overall productivity, workplace safety and employee wellness. The Department is not able to quantify these benefits at this time due to lack of suitable data.
II. Background
This regulatory action first appeared on the Department's Fall 2009 Regulatory Agenda where the Department stated its intent to review the impact of the 2008 Final Rule on the regulated community. 77 FR 67934. Subsequently, the FMLA was amended by the National Defense Authorization Act for Fiscal Year 2010 (FY 2010 NDAA), Public Law 111-84, and the Airline Flight Crew Technical Corrections Act (AFCTCA), Public Law 111-119. This rulemaking, therefore, makes regulatory changes to implement these statutory amendments. It also makes various clarifying revisions to existing regulations. The Department continues to review the impact of regulatory revisions made in the FMLA 2008 Final Rule.
A. What the FMLA provides
The FMLA was enacted on February 5, 1993, and became effective for most covered employers on August 5, 1993. As originally enacted, the FMLA entitled eligible employees of covered employers to take job-protected, unpaid leave, or to substitute appropriate accrued paid leave, for up to a total of 12 workweeks in a 12-month period for the birth of the employee's son or daughter and to care for the newborn
child; for the placement of a son or daughter with the employee for adoption or foster care; to care for the employee's spouse, parent, son, or daughter with a serious health condition; or when the employee is incapacitated due to the employee's own serious health condition.
The FMLA was amended in January 2008 with the enactment of the FY 2008 NDAA. Public Law 110-181. Section 585(a) of FY 2008 NDAA expanded the FMLA to allow eligible employees of covered employers to take FMLA leave because of any qualifying exigency (as determined by the Secretary of Labor) when that employee's spouse, son, daughter, or parent is a member of the National Guard or Reserves who is on, or has been notified of an impending call or order to, active duty in the Armed Forces in support of a contingency operation (referred to as qualifying exigency leave). Additionally, the FY 2008 NDAA amendments provided up to 26 workweeks of leave in a single 12-month period for an eligible employee to care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember (referred to as military caregiver leave). These two leave entitlements are collectively referred to as military family leave.
The FMLA was again amended in 2009 with the enactment of the FY 2010 NDAA on October 28, 2009, and the AFCTCA on December 21, 2009. Section 565(a) of the FY 2010 NDAA amended the military family leave provisions of the FMLA by extending qualifying exigency leave to eligible family members of members of the Regular Armed Forces, and military caregiver leave to include care provided to certain veterans. The AFCTCA amended the FMLA to provide special hours of service eligibility requirements for airline flight crew employees. Each of these amendments is discussed in detail in the section-by-section analysis that follows.
FMLA leave may be taken in a block, or under certain circumstances, intermittently or on a reduced leave schedule. In addition to providing job-protected family and medical leave, employers must also maintain any pre-existing group health plan coverage for an employee on FMLA-protected leave under the same conditions that would apply if the employee had not taken leave. 29 U.S.C. 2614. Once the leave period is concluded, the employer is required to restore the employee to the same or an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.
Id.
If an employee believes that his or her FMLA rights have been violated, the employee may file a complaint with the Department or file a private lawsuit in Federal or state court. If the employer has violated the employee's FMLA rights, the employee is entitled to reimbursement for any monetary loss incurred, equitable relief as appropriate, interest, attorneys' fees, expert witness fees, and court costs. Liquidated damages also may be awarded. 29 U.S.C. 2617.
Title I of the FMLA is administered by the Department and applies to private sector employers with 50 or more employees, public agencies, and certain Federal employers and entities, such as the U.S. Postal Service and Postal Regulatory Commission. Title II is administered by the U.S. Office of Personnel Management and applies to civil service employees covered by the annual and sick leave system established under 5 U.S.C. Chapter 63 and certain employees covered by other Federal leave systems. Title III established a temporary Commission on Leave to conduct a study and report on existing and proposed policies on leave and the costs, benefits, and impact on productivity of such policies. Title IV contains provisions governing the effect of the FMLA on more generous leave policies, other laws, and existing employment benefits. Finally, Title V originally extended the leave provisions to certain employees of the U.S. Senate and House of Representatives; however, such coverage was repealed and replaced by the Congressional Accountability Act of 1995. 2 U.S.C. 1301.
B. Who the Law Covers
The FMLA generally covers employers with 50 or more employees. To be eligible to take FMLA leave, an employee must meet specified criteria, including employment with a covered employer for at least 12 months, performance of a specified number of hours of service in the 12 months prior to the start of leave, and work at a location where there are at least 50 employees within 75 miles.
C. Regulatory History
The FMLA required the Department to issue initial regulations to implement Title I and Title IV of the FMLA within 120 days of the law's enactment (by June 5, 1993) with an effective date of August 5, 1993. The Department published a Notice of Proposed Rulemaking (NPRM) in the
Federal Register
on March 10, 1993. 58 FR 13394. The Department received comments from a wide variety of stakeholders, and after considering these comments the Department issued an Interim Final Rule on June 4, 1993, effective August 5, 1993. 58 FR 31794.
After publication, the Department invited further public comment on the interim regulations. 58 FR 45433. During this comment period, the Department received a significant number of substantive and editorial comments on the interim regulations from a wide variety of stakeholders. Based on this second round of public comments, the Department published final regulations to implement the FMLA on January 6, 1995. 60 FR 2180. The regulations were amended February 3, 1995 (60 FR 6658) and March 30, 1995 (60 FR 16382) to make minor technical corrections. The final regulations went into effect on April 6, 1995.
On December 1, 2006, the Department published a Request for Information (RFI) in the
Federal Register
requesting public comment on its experiences with and observations of the Department's administration of the FMLA and the effectiveness of the regulations. 71 FR 69504. Comments were received from workers, family members, employers, academics, and other interested parties, ranging from personal accounts, surveys, and legal reviews to academic studies and recommendations for regulatory and statutory changes to the FMLA. The Department published its Report on the comments in the
Federal Register
on June 28, 2007. 72 FR 35550.
The Department published an NPRM in the
Federal Register
on February 11, 2008 proposing changes to the FMLA's regulations based on the Department's experience administering the law, two Department of Labor studies and reports on the FMLA issued in 1996 and 2001, several U.S. Supreme Court and lower court rulings on the FMLA, and a review of the comments received in response to the RFI. 73 FR 7876. Comments were also sought on the FY 2008 NDAA military family leave statutory provisions. In response to the NPRM, the Department received thousands of comments from a wide variety of stakeholders. The Department issued a Final Rule on November 17, 2008, which became effective on January 16, 2009. 73 FR 67934.
The Department commenced the current rulemaking by publishing an NPRM in the
Federal Register
on February 15, 2012 (77 FR 8960), inviting public comment for 60 days. On April 16, 2012, in response to requests to extend the comment period, the Department published a notice extending the original 60-day comment
period by 14 days. 77 FR 22519. The comment period closed on April 30, 2012; approximately 870 comments were received and are available for review at the Federal eRulemaking Portal,
www.regulations.gov,
Docket ID WHD-2012-0001. Comments were received from worker advocacy organizations, military members, employers, employer associations, human resource specialists, labor organizations, and private individuals. Approximately 90 percent of the comments received were identical or nearly identical form letters sent in response to a comment campaign by members of the Society for Human Resource Management (SHRM). The Department received one comment “late”—after the close of the comment period—from SHRM. Although SHRM accessed the Federal eRulemaking Portal prior to the midnight deadline, it was unable to submit its comment in a timely manner due to technical difficulties. Since technical difficulties prevented SHRM from complying with the deadline, the Department accepted SHRM's comment in this rulemaking. Several of the comments received addressed issues that are beyond the scope or authority of the proposed regulations including expanding the coverage or benefits of the Act. However, many of the comments centered on either the military amendments or the AFCTCA amendments, with several offering comments on both amendments. Comments on specific provisions are discussed in detail in the Summary of Comments below.
D. Updates to the Military Family Leave Provisions
Section 565(a) of the FY 2010 NDAA, enacted on October 28, 2009, amends the military family leave provisions of the FMLA. Public Law 111-84. The FY 2010 NDAA expands the availability of qualifying exigency leave and military caregiver leave. Qualifying exigency leave, which was made available to family members of the National Guard and Reserve components under the FY 2008 NDAA, is expanded to include family members of members of the Regular Armed Forces. The entitlement to qualifying exigency leave is expanded by substituting the term covered active duty for active duty and defining covered active duty for a member of the Regular Armed Forces as “duty during the deployment of the member with the Armed Forces to a foreign country”, and for a member of the Reserve components of the Armed Forces as “duty during the deployment of the member with the Armed Forces to a foreign country under a call or order to active duty under a provision of law referred to in section 101(a)(13)(B) of title 10, United States Code.” 29 U.S.C. 2611(14).
1
Prior to the FY 2010 NDAA amendments, there was no requirement that members of the National Guard and Reserves be deployed to a foreign country.
1
As with the FY 2008 NDAA, the FY 2010 NDAA references 10 U.S.C. 101(a)(13)(B), which covers call ups of the National Guard and Reserves and certain retired members of the Regular Armed Forces and Reserves in support of contingency operations. 73 FR 67954-55. For simplicity, the terms “National Guard and Reserve” and “Reserve components” are used interchangeably throughout this document and refer to these categories of military members.
The FY 2010 NDAA amendments expand the definition of a serious injury or illness for military caregiver leave for current members of the Armed Forces to include an injury or illness that existed prior to service and was aggravated in the line of duty on active duty and that renders the member medically unfit. 29 U.S.C. 2611(18)(A). These amendments also expand the military caregiver leave provisions of the FMLA to allow family members to take military caregiver leave to care for certain veterans. The definition of a covered servicemember, which is the term the Act uses to indicate the group of military members for whom military caregiver leave may be taken, is broadened to include a veteran with a serious injury or illness who is receiving medical treatment, recuperation, or therapy, if the veteran was a member of the Armed Forces at any time during the period of five years preceding the date of the medical treatment, recuperation, or therapy. 29 U.S.C. 2611(15)(B). The amendments define a serious injury or illness for a veteran as a “qualifying (as defined by the Secretary of Labor) injury or illness that was incurred by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member's active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that manifested itself before or after the member became a veteran.” 29 U.S.C. 2611(18)(B).
As was the case with the FY 2008 NDAA, the FY 2010 NDAA is silent as to the effective date of the FMLA amendments. In the NPRM, the Department stated its position that the qualifying exigency provision of the FY 2010 NDAA was effective upon the law's enactment on October 28, 2009. 77 FR 8962. However, because the FY 2010 NDAA requires the Secretary to define a serious injury or illness of a veteran, the Department concluded that the military caregiver leave provision for family members of certain veterans would not be effective until the Department defined this term. 77 FR 8962. The Department stated that employers were not required to provide employees with leave to care for a covered veteran until the Department defined the term.
Id.
The Department noted, however, that employers were not prohibited from providing employees with leave to care for a veteran if employers chose to do so before the Department defined this term through regulation, but such leave, assuming it did not otherwise qualify as FMLA leave to care for a family member with a serious health condition, would not be FMLA-protected and would not count against employees' FMLA entitlement.
Id.
Although the Department did not request comments on its interpretation of the effective date of the FY 2010 NDAA amendments, a few commenters addressed the effective date of the military caregiver leave provision providing care to certain veterans. SHRM and Senators Harkin and Murray concurred with the Department's position that military caregiver leave is not available to veterans' families until the Department defines serious injury or illness of a veteran through regulation. The Legal Aid Society—Employment Law Center (Legal Aid) asserted that the Department's positions on the effective date of the military caregiver leave provision in the FY 2008 NDAA and the FY 2010 NDAA were inconsistent. It urged the Department to treat the provision providing military caregiver leave to care for veterans as effective on the signing date of the FY 2010 NDAA in light of the critical needs of veterans. It also urged the Department to state that if an employer permitted an employee to take leave to care for a veteran before the Department defined this term through regulation, such leave is protected under the FMLA. The National Employment Lawyers Association (NELA) commented that, from the date the law was enacted in 2009 until the adoption of final regulations, employers could have permitted employees to take leave to care for a veteran pursuant to 29 U.S.C. 2652(a), which authorizes employers to voluntarily provide leave rights broader than those provided for under the FMLA, and asserted that such leave would be FMLA protected. At the same time, however, NELA supported the Department's position that any such leave taken before final regulations are adopted should not count against an employee's FMLA entitlement, and recommended that the regulations expressly incorporate this requirement.
The Department disagrees with Legal Aid's suggestion that the Department is being inconsistent in its position on the effective date of the 2008 and 2010 amendments. In both the 2008 Final Rule and this rulemaking, the Department determined that where the statute requires the Secretary to define a term, that portion of the statute is not effective until the Department defines the term through regulation; where the statute does not require the Secretary to define any terms, that portion of the statute is effective upon the statute's enactment. In the FY 2008 NDAA, Congress directed the Secretary to define the term qualifying exigency, and, therefore, the Department concluded that qualifying exigency leave was not effective until the Department defined this term in the 2008 Final Rule. 73 FR 7925. In the FY 2010 NDAA, Congress directed the Secretary to define what qualifies as a serious injury or illness of a veteran, and, therefore, the Department has taken the position that employers are not required to provide military caregiver leave to care for a veteran until the Department defines a serious injury or illness of a veteran through regulation. Similarly, in the FY 2008 NDAA, Congress did not require the Secretary to define any terms related to military caregiver leave, and therefore the Department took the position that the military caregiver leave provision was effective upon enactment. 73 FR 7925. In the FY 2010 NDAA, Congress did not require the Secretary to define any terms related to the expansion of qualifying exigency leave, and therefore Department has taken the position that the qualifying exigency leave provision was effective upon enactment. As to the comments regarding the treatment of leave to care for a veteran that is voluntarily provided by an employer before the effective date of this Final Rule, the Department disagrees with the commenters' assertions that such leave is FMLA-protected. Because this provision of the FY 2010 NDAA is not effective until the Department defines a qualifying serious injury or illness of a veteran through regulation, there is no basis to treat such leave, if voluntarily provided by an employer, as FMLA-protected. There is likewise no basis to interpret 29 U.S.C. 2652(a) as requiring that leave to care for a veteran voluntarily provided by an employer prior to the effective date of this Final Rule be treated as protected FMLA leave. Section 2652(a) states that the FMLA does not diminish an employer's obligations to comply with the terms of any employment benefit program or plan providing greater rights than the FMLA that the employer has agreed to provide through a collective bargaining agreement or otherwise voluntarily agreed to provide. This section does not say that any benefit provided under such program or plan that exceeds the rights provided under the FMLA is protected under the FMLA. Nor does it say that the FMLA provides a mechanism for enforcement of such benefits. Thus, the Department's position in this Final Rule is the same as set out in the NPRM: the qualifying exigency leave provision of the FY 2010 NDAA was effective on October 28, 2009; the military caregiver leave provision to care for a covered veteran will be effective on the effective date of this Final Rule; and any leave to care for a veteran voluntarily provided by an employer before the effective date of this Final Rule that does not otherwise qualify as FMLA leave to care for a family member with a serious health condition is not FMLA-protected and does not count against employees' FMLA entitlement.
E. Amendments to Eligibility Criteria for Airline Flight Crewmembers and Flight Attendants
On December 21, 2009, the AFCTCA was enacted, establishing a special hours of service eligibility requirement for airline flight crew employees. The AFCTCA provides that an airline flight crew employee will meet the hours of service eligibility requirement if he or she has worked or been paid for not less than 60 percent of the applicable total monthly guarantee (or its equivalent) and has worked or been paid for not less than 504 hours (not including personal commute time or time spent on vacation, medical, or sick leave) during the previous 12 months. Airline flight crew employees continue to be subject to the FMLA's other eligibility requirements. The AFCTCA also authorized the Department to issue regulations regarding the calculation of FMLA leave for airline flight crew employees as well as special recordkeeping requirements for the employers of such employees.
The AFCTCA is silent as to its effective date. The Department concluded in the NPRM that the amendment became effective on the date of enactment, December 21, 2009, because the AFCTCA is explicit about how to calculate the hours of service requirement for airline flight crew employees. 77 FR 8962. Although the AFCTCA authorizes the Department to promulgate regulations regarding how to calculate the FMLA leave entitlement for airline flight crew employees, and special recordkeeping requirements, these authorizations are permissive and do not require the Department to engage in rulemaking. The Department did not request comments concerning the effective date of the AFCTCA and no comments were received on the issue. The Department's position in this Final Rule is the same as set out in the NPRM.
III. Summary of Comments
The Department received approximately 870 comments on the NRPM; of those, almost 90 percent were identical or nearly identical form letters from SHRM members which addressed concerns about the Department's proposed elimination of the employer's ability to utilize different increments of FMLA leave at different times of the day or shift and the Department's consideration of whether the physical impossibility provision should be removed from the regulations. The Department also received comments that were general statements, and comments addressing issues that are beyond the scope authority of the proposed regulations. The remaining comments reflect a wide variety of views primarily concerning proposals to implement the FY 2010 NDAA or the AFCTCA. Many include substantive analyses of the proposed revisions. Some commenters addressed both amendments and some addressed other proposed changes as well. The Department has carefully considered all of the comments, analyses, and arguments made for and against the proposed changes.
The major comments received on the proposed regulatory changes are summarized below, together with a discussion of the changes that have been made in the final regulatory text in response to the comments received. A number of other minor editorial changes have been made for consistency in the regulatory text.
IV. Section-by-Section Analysis of Proposed Changes to the FMLA Regulations
The following is a section-by-section analysis of the final revisions to the FMLA regulations. As explained, this Final Rule revises only certain provisions of the existing regulations and creates certain new provisions, which are discussed below. The Department is republishing, however, the entirety of the FMLA regulations, including the unchanged regulatory provisions not discussed here.
The primary sections of the regulations with revisions to implement the FY 2010 NDAA amendments are: § 825.126 (Leave because of a qualifying
exigency); § 825.127 (Leave to care for a covered servicemember with a serious injury or illness); § 825.309 (Certification for leave taken because of a qualifying exigency); and § 825.310 (Certification for leave taken to care for a covered servicemember (military caregiver leave)). Less substantive changes are made to § 825.122 (Definitions of covered servicemember, spouse, parent, son or daughter, next of kin of a covered servicemember, adoption, foster care, son or daughter on covered active duty or call to covered active duty status, son or daughter of a covered servicemember, and parent of a covered servicemember) and § 825.102 (Definitions) to reflect new definitions related to military family leave (moved from § 825.800 in the current regulations).
The sections of the regulations with final revisions to implement the AFCTCA are located in revised Subpart H newly titled, Special Rules Applicable to Airline Flight Crew Employees. This reorganization is intended to enhance clarity and utility of the regulations, and to prevent confusion about the applicability of the special rules for airline flight crew employees to any other types of employees. Subpart H includes the following sections: § 825.800 (Special rules for airline flight crew employees, general), § 825.801 (Special rules for airline flight crew employees, hours of service requirement); § 825.802 (Special rules for airline flight crew employees, calculation of leave); and § 825.803 (Special rules for airline flight crew employees, recordkeeping requirements). Additional changes to implement the AFCTCA are made in § 825.102 (Definitions).
In addition to changes to incorporate the statutory amendments, the Department also made changes to clarify existing regulatory text and for consistency with other statutes and regulations. Specifically, the Department moved the definitions section of the regulations from § 825.800 to § 825.102, which is reserved in the current regulations, and made certain substantive revisions to the definitions as discussed later in this preamble. Other modified sections include § 825.110 (Eligible employee), § 825.205 (Increment of FMLA leave for intermittent and reduced schedule leave), § 825.500 (Recordkeeping requirements), and § 825.702 (Interaction with Federal and State anti-discrimination laws).
The Department also removes the following optional-use forms and notices from the regulations' Appendices: Forms WH-380-E (Certification of Health Care Provider—Employee), WH-380-F (Certification of Health Care Provider—Family Member), WH-384 (Certification of Qualifying Exigency for Military Family Leave), and WH-385 (Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave) related to certification; and Forms WH-381 (Notice of Eligibility and Rights & Responsibilities), WH-382 (Designation Notice to Employee of FMLA Leave), and Notice to Employees of Rights under FMLA (WH Publication 1420) related to notification. The Department noted in the NPRM that the forms would continue to be available to the public on the WHD Web site, and that the forms are separately subject to the requirements of the Paperwork Reduction Act of 1995 (PRA), which provides an opportunity for the public to comment on the forms and their information collection requirements every three years. The Department also advised that future substantive changes to the forms would continue to require separate and additional rulemaking. 77 FR 8963.
The Department received several comments on this proposal. Aon Hewitt and a self-described labor-employment attorney both supported the Department's proposal to remove the forms from the regulations. Legal Aid, the National Coalition to Protect Family Leave (Coalition), and SHRM opposed the proposal. Legal Aid stated that removing the forms from the regulations would eliminate an important source of information for employers and employees. This commenter also stated that many people lack access to the Internet, and even for those who do have access, navigating the Internet and being certain that the most recent form is being accessed is difficult. The Coalition expressed concern that the PRA procedures would not produce the same amount of public participation and awareness of future proposed changes to the forms. This commenter further asserted that even the slightest changes to the forms can result in a significant economic impact on an employer as systems must be updated to accommodate the changes. The commenter also stated that the forms are a critical part of the FMLA approval process, and even the smallest proposed changes should receive careful consideration. SHRM commented that the notice and comment process has contributed to the improvement of these forms over time and that it would be a mistake to remove the forms from this regulatory process. It also commented that removal of the forms from the rulemaking process would be contrary to the Administration's commitment to transparency and open government, notwithstanding the Department's assertion that the PRA review process would facilitate these goals.
The Department has carefully considered the concerns raised by the commenters, and has decided to implement the provision as proposed. The Department understands that, for many employers and employees, compliance with the FMLA begins with notification and certification of the employee's need for leave. The Department recognizes that its optional-use FMLA forms, as well as employer forms requiring the same information, play a key role in employers' compliance with the FMLA and employees' ability to take FMLA-protected leave when needed. Therefore, the Department believes it would be helpful to discuss the authority for these information collections, briefly describe the PRA process, and explain how the removal of the forms from the regulations will and will not impact the regulated community.
The Department's authority for the collection of information and the required disclosure of information under the FMLA stems from the statute and/or the implementing regulations. The authority for an employer requiring medical certification in support of an employee's request for FMLA leave due to a serious health condition and for the content of the certification are found in 29 U.S.C. 2613(a), 2614(c)(3) and 29 CFR 825.100(d), 825.305-.308, 825.312. These provisions are the basis for Forms WH-380-E and WH-380-F. The authority for requiring certification in support of an employee's need for leave due to a qualifying exigency arising from the deployment of the employee's family member and the content of the information included in Form WH-384 are found in 29 U.S.C. 2613(f) and § 825.309. The authority for requiring certification of a covered servicemember's serious injury or illness and the content of Form WH-385 and new Form WH-385-V are found in 29 U.S.C. 2613(a) and § 825.310. The regulations, § 825.300(b)-(c), set forth the authority and information requirements for Form WH-381, Notice to Employee of FMLA Eligibility and Rights and Responsibility. The authority for and content of Form WH-382, Notice to Employees of FMLA Leave Designation is found in §§ 825.300(c)-.301(a). In order to make any changes to the information included in these forms, the Department must engage in
rulemaking because the content of the forms is determined by the regulations.
Under the PRA process, the WHD publishes a notice in the
Federal Register
notifying the public that the agency is seeking an extension of approval from the Office of Management and Budget (OMB) for the subject information collection, and that the Department is accepting comments for 60-days on the extension of OMB approval of the information collection. In this notice, WHD describes the information collection, the estimated time needed to complete the information collection, the cost of complying with the information collection, and describes the changes, if any, to the information collection from the previous clearance. Often they are programmatic to the information collection requirements or format changes to the instruments. In such cases the Agency merely updates number of responses or respondents, or updating the cost of responding to account for items such as wage increases as reported by the Department's Bureau of Labor Statistics or increases in postage rates. The
Federal Register
notice provides the public an opportunity to comment on those estimates and make recommendations on how the agency might improve the information collection in a way that would not necessarily require rulemaking. After the 60 day comment period, the Department publishes a notice informing the public of its intention to submit the information collection to the OMB for an extension of approval. This notice informs the public that they have 30 days to submit comments to OMB on the extension of approval, a brief description of the information collection, the estimated time needed to complete the information collection, the cost of complying with the information collections, and describes the changes, if any, to the information collection from the previous clearance. The Department also provides OMB with a summary of any comments received in response to the first notice and of the agency's response to those comments. The public may seek additional information about the forms from the WHD Web site at any time. Information about specific information collections is also available at
www.reginfo.gov.
Removal of the forms from the regulations will allow the Department to make non-regulatory changes to the forms in a more effective manner while still offering the public an opportunity to comment on the proposed changes. For example, the Department regularly receives completed medical certification forms (Forms WH-380-E and WH-380-F) from health care providers even though respondents are instructed not to send the form to the Department of Labor. This results in the employee's FMLA leave being delayed because the employer has not received the medical certification supporting the employee's need for leave. Through the PRA notice and review process, the Department could modify the instructions for health care providers in Section III of the form to include an instruction not to send the forms to the Department. This type of change would not require a regulatory change but would enhance the usability of the form and employers' compliance efforts.
As discussed, even with removal of the forms from the regulations, the information collection requirements underlying the FMLA forms continue to be subject to both the rulemaking process and the PRA process. The FMLA regulations determine what substantive information is collected on the forms and the PRA process requires that any Federal government information collection be approved by OMB and re-authorized every three years. Removing the forms from the regulations gives the Department the ability to maintain one version of the FMLA forms, thereby lessening the confusion among employees and employers currently resulting from the existence of multiple versions of the forms. The forms will continue to be available on the WHD Web site, and for those individuals who lack Internet access, forms may be obtained from their local WHD district office and, in some cases, from their employer. Removal of the forms from the regulations does not alter the Department's belief that the forms facilitate employer and employee compliance with their respective obligations under the FMLA. Employers are permitted to use forms other than those issued by the Department so long as they do not require information beyond that specified in the regulations.
See
29 CFR 825.306, 825.309, 825.310. However, if an employee provides sufficient certification regardless of format, no additional information may be requested.
In response to SHRM's comment regarding transparency and open government and the Coalition's concern that the Department does not publicize the PRA process in the same manner that it publicizes proposed changes to the regulations, the Department believes that the PRA process is open, transparent, and well-publicized; however the Department will take into consideration additional steps to alert the regulated community that the FMLA forms are undergoing the PRA process. Additionally, as stated previously, any changes to the information collection requirements underlying the forms would still require full notice and comment through the rulemaking process. Changes to the forms would still require full notice and comment under the PRA process.
In the Final Rule, as proposed, the Department makes various minor changes or corrections to the forms and regulations. Specifically, the Department makes small modifications to the FMLA forms, and creates a new form for certification of a serious injury or illness of a covered veteran, to reflect the FY 2010 NDAA amendments and the AFCTCA, which are discussed in the section-by-section analysis. In addition, minor edits to more accurately reflect the new military family leave and airline flight crew employee eligibility provisions or to delete references to Appendices for prototype forms or notices are made at: §§ 825.100, 825.101, 825.107, 825.112, 825.200, 825.213, 825.300, 825.302, 825.303, and 825.306. Cross-references to the special rules applicable only to airline flight crew employees and their employers in revised Subpart H are included in §§ 825.102, 825.110, 825.120, 825.121, 825.200, 825.205, 825.300, and 825.702. Cross-references to the definitions section, which the Department moves, as proposed, to § 825.102, are updated throughout the regulations. The Department also corrects inadvertent drafting errors that were made in the 2008 Final Rule, including correcting the cross-references in § 825.200(f) and (g) and inserting the word “spouse” in the first lines of § 825.202(b) and (b)(1). Furthermore, the Department includes the word “the” in the statutory phrase “in line of duty” where used in the regulations and updates the URL for the WHD Web site in §§ 825.300, 825.306, and 825.309 to link viewers directly to the WHD site. These minor editorial changes are not addressed in the section-by-section analysis.
A. Revisions To Implement the FY 2010 NDAA Amendments
1. Section 825.122 Definitions of Covered Servicemember Spouse, Parent, Son or Daughter, Next of Kin of a Covered Servicemember, Adoption, Foster Care, Son or Daughter on Covered Active Duty or Call or Order to Covered Active Duty Status, son or Daughter of a Covered Servicemember, and Parent of a Covered Servicemember
The Department proposed to add a definition of covered servicemember as
a new paragraph (a) in this section and to modify the definition in the current regulations to reflect the addition of covered veterans as covered servicemembers under the FY 2010 NDAA, and to redesignate the paragraphs that follow. The Department also proposed to change the term active duty to covered active duty in each place it appears in both the title of this section and in current paragraph (g), and to update the reference in this paragraph to proposed § 825.126(a)(5).
The Department received several comments on the proposed definition of
covered servicemember,
all of which are discussed below in conjunction with § 825.127(b)(2). For the reasons stated in the discussion of § 825.127(b)(2), the Final Rule modifies the definition of
covered servicemember
in § 825.122 in the same manner that it modifies § 825.127(b)(2), and makes additional minor word changes to mirror the language used in § 825.127(b)(2).
No comments were received on the other proposed changes to this section. The Final Rule adopts these proposals without modification, and updates cross-references throughout the regulations to the definitions in this section that have been redesignated.
2. Section 825.126 Leave Because of a Qualifying Exigency
Section § 825.126 sets forth the regulation allowing an eligible employee whose spouse, parent, son, or daughter is on active duty or has been notified of an impending call or order to active duty to take FMLA leave for a qualifying exigency arising out of that active duty or call to active duty. The FY 2008 NDAA defined active duty as a call or order to active duty under a provision of law referred to in 10 U.S.C. 101(a)(13)(B). Public Law 110-181; § 585(a). The provisions referred to in 10 U.S.C. 101(a)(13)(B) are limited to duty by members of the Reserve components, the National Guard, and certain retired members of the Regular Armed Forces and retired Reserve. The FY 2008 NDAA thus limited the availability of qualifying exigency leave to family members of members of the National Guard and Reserve components. 73 FR 67954-55.
The FY 2010 NDAA further amended the FMLA to permit an eligible employee to take FMLA leave for any qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is on covered active duty, or has been notified of an impending call or order to covered active duty in the Armed Forces. Public Law 111-84, § 565(a)(1);
see
29 U.S.C. 2611(14)(A), 2612(a)(1)(E). The FY 2010 NDAA defined covered active duty to include duty by members of the Regular Armed Forces during deployment to a foreign country, and duty by members of the Reserve components during deployment to a foreign country under a call or order to active duty under a provision of law referred to in section 101(a)(13)(B) of title 10, United States Code. 29 U.S.C. 2611(14). Thus, the FY 2010 NDAA expanded the availability of qualifying exigency leave to include family members of the Regular Armed Forces during a foreign deployment, and added a foreign deployment requirement to the type of call or order to active duty required for the Reserve components of the Armed Forces.
The Department proposed to reverse the order in which the two parts of this section appear, so that proposed paragraph (a) addressed an employee's entitlement to qualifying exigency leave and proposed paragraph (b) identified the specific circumstances under which qualifying exigency leave may be taken. The Department also proposed to substitute covered active duty for active duty in paragraph (a) (as well as throughout the regulations wherever the term appeared) to incorporate the FY 2010 NDAA statutory language. Additionally, because the term covered military member was associated with the restrictive nature of qualifying exigency leave under the FY 2008 NDAA,
i.e.,
the limitation of such leave to family members of Reserve component members only, the Department proposed to delete references to a covered military member and instead use the term member or military member to refer to all military members on covered active duty as defined by the statute.
In accordance with the FY 2010 NDAA, the Department proposed to delete the statement in current § 825.126(b)(i) that family members of members of the Regular Armed Forces are not entitled to qualifying exigency leave. The Department proposed in paragraph (a) to state than an eligible employee may take FMLA leave for a qualifying exigency while the employee's spouse, son, daughter, or parent is on covered active duty or call to covered active duty status. The Department proposed in § 825.126(a)(1) to define
covered active duty or call to covered active duty status
for a member of the Regular Armed Forces as “duty under a call or order to active duty (or notification of an impending call or order to covered active duty) during the deployment of the member with the Armed Forces to a foreign country,” and to state that the active duty orders will generally specify if the member's deployment is to a foreign country. The Department proposed in § 825.126(a)(2) to define
covered active duty or call to covered active duty status
for a member of the Reserve components as “duty under a call or order to active duty (or notification of an impending call or order to active duty) during the deployment of the member with the Armed Forces to a foreign country under a Federal call or order to active duty in support of a contingency operation” pursuant to the provisions of law referred to in 10 U.S.C. 101(a)(13)(B). The Department also proposed to use the word Federal in proposed § 825.126(a)(2) in describing the covered calls or orders to active duty in order to make clear that only Federal calls to duty will meet the definition of covered active duty. The Department proposed to move to § 825.126(a)(2)(i) the list of the specific Reserve components in current § 825.126(b)(2)(i). The Department proposed to move to § 825.126(a)(2)(ii) the statement in current § 825.126(b)(3) that the active duty orders of a member of the Reserve components will generally specify if the covered active duty military member is serving in support of a contingency operation by citing the relevant section of Title 10 of the United States Code and/or by reference to the specific name of the contingency operation, and to state also in § 825.126(a)(2)(ii) that the active duty orders will generally specify that the deployment is to a foreign country. The Department proposed in § 825.126(a)(3) to define
deployment
of the member with the Armed Forces to a foreign country as deployment to areas outside of the United States, the District of Columbia, or any Territory or possession of the United States, including deployment in international waters. As discussed in the NPRM, this definition was consistent with the Department's understanding of the term deployment based on consultations with the DOD. 77 FR 8965. The Department also sought comment on the types of duty assignments for members of the Navy and Coast Guard that would satisfy the definition of
deployment.
The Department proposed to move to § 825.126(a)(4) the provision specifying that covered deployments are limited to Federal calls to active duty, which is in current § 825.126(b)(2)(ii). Finally, the Department proposed to move the definition of
son or daughter on active duty or call to active duty status
to § 825.126(a)(5) from current § 825.126(b)(1).
No comments were received on the proposed changes regarding the
reorganization of the section, or the changes in proposed paragraph (a) regarding the use of the term covered active duty rather than active duty or the use of the term military member or member rather than covered military member. Therefore, the Final Rule adopts these changes as proposed.
Several commenters suggested additional language changes for paragraph (a) of this section. Two commenters, the National Partnership for Women and Families (Partnership) and the North Carolina Justice Center, suggested that the term qualifying exigency may be confusing to military families and that the Department should provide a general explanation of what is meant by this term. NELA commented that the definition of covered active duty or call to covered active duty status is confusing because it seems to indicate that an impending call or order to active duty must occur during deployment to a foreign country. NELA suggested that the Department remove the phrase call or order to active duty from proposed § 825.126(a)(1) defining the term for members of the Regular Armed Forces, noting that 29 U.S.C. 2611(14)(A) does not use the phrase. NELA further suggested that the Department include a definition of the Armed Forces in this subparagraph rather than using the term Regular Armed Forces. NELA also commented that the use of the term contingency operation in the proposed regulation at § 825.126(a)(2), discussing covered active duty, is confusing and unnecessary in light of the fact that Congress deleted this term in the FY 2010 NDAA. This commenter suggested that, because each of the listed military duties in 10 U.S.C. 101(a)(13) is a type of contingency operation, there is no reason to include the phrase in the final regulations. In contrast, SHRM commented that the inclusion of the language that the call or order to active duty must be in support of a contingency operation will help clarify this entitlement. The Coalition commented that the inclusion of the word Federal in § 825.126(a)(2) adds clarity and the reference to Title 10 of the United States Code in subparagraph (2) is appropriate, but that this subparagraph should provide explicit definitions or descriptions of the different types of active duty under the various statutes listed in Title 10 because most employers are not familiar with these statutory references.
The Partnership and the North Carolina Justice Center supported the Department's proposed definition of deployment to a foreign country in proposed § 825.126(a)(3) to include international waters as consistent with congressional intent. The Military Officers Association of America also supported the inclusion of international waters in this definition, but suggested that the Department “encourage expansion of the law” to include family members of servicemembers assigned overseas to remote areas and to servicemembers of all the uniformed services, including the National Oceanic and Atmospheric Administration (NOAA) and the U.S. Public Health Service Commissioned Corps.
The Department has carefully considered all of the comments regarding the proposed changes to § 825.126 and has adopted paragraph (a) as proposed with a slight modification. The Department removes from the proposed definition of
covered active duty or call to covered active duty status
in the Final Rule the phrase “under a call or order to active duty (or notification of an impending call or order to active duty)” and inserts into the regulatory text preceding the definition the phrase “(or has been notified of an impending call or order to covered active duty)”. The revised text is not intended to change the meaning of § 825.126(a), under which an eligible employee may take qualifying exigency leave if that employee's spouse, son, daughter, or parent is on covered active duty or call to covered active duty status or has been notified of an impending call or order to covered active duty, but instead to provide clarity and more closely track the statutory language of the FY 2010 NDAA. With regard to commenters' request that the Department provide a definition for the term qualifying exigency, the Department notes that the 2008 Final Rule defined qualifying exigency by providing clearly defined reasons for which an eligible employee can take leave because of a qualifying exigency. 73 FR 67957. Thus, the proposed rule provided, just as the 2008 Final Rule did, eight distinct categories that the Department has determined to be qualifying exigencies that entitle eligible family members to FMLA leave. The Department does not believe that any additional explanation of the term qualifying exigency is necessary. In response to the comment concerning whether the phrase covered active duty or call to covered active duty limits qualifying exigency leave to the period during the military member's deployment, the Department notes that eligible employees who are family members of military members of the Armed Forces are entitled to qualifying exigency leave after notification of an impending deployment, during the deployment, and post-deployment. As explained in the NPRM, the Department does not believe that the FY 2010 NDAA altered the applicability of qualifying exigency leave to the limited category of post-deployment activities, the need for which immediately and foreseeably arise from the military member's covered active duty. In response to the request to define Armed Forces, the Department believes that the public has a common understanding of the Armed Forces, and that further definition is not necessary.
In response to the comments regarding the continued use of the term contingency operation in the definition of covered active duty for military members of the Reserve components, the Department declines to modify the language in § 825.126(a)(2) as suggested in light of the complexity of the different designations for types of duties and deployments within the military. The Department maintains its view, as explained in the NPRM, that because Congress retained the reference to 29 U.S.C. 101(a)(13)(B) in the FY 2010 NDAA, and 29 U.S.C. 101(a)(13)(B) defines contingency operations, this reference continues to require that members of the Reserve components be called to duty in support of a contingency operation in order for their family members to be entitled to qualifying exigency leave. 77 FR 8965. In response to the request to provide descriptions of the different types of active duty under the statutes listed in Title 10, the Department notes that proposed § 825.126(a)(2) provided, just as current § 825.126(b)(2) does, brief descriptions of the types of active duty to which each of the referenced statutes refers in addition to citing the statutes referenced in 10 U.S.C. 101(a)(13)(B). The Department believes that these descriptions are sufficient for employers and employees to ascertain the types of deployments for which members of the National Guard and Reserve components may be deployed which would entitle an eligible family member to take qualifying exigency leave.
In response to the Military Officers Association of America's comment suggesting expansion of the law to servicemembers assigned overseas, the Department notes that military members of the Regular Armed Forces who are assigned overseas to remote areas may be considered on covered active duty if they are called or ordered to active duty under a deployment and the remote area to which they are deployed is an area outside of the United States, the District of Columbia, or any Territory or possession of the United States, including international waters. The
same is true of military members of the National Guard and Reserve components as long as their foreign deployment is in support of a contingency operation referenced in § 825.126(a)(2). As to the inclusion of servicemembers of all the uniformed services referenced by the Military Officers Association of America, the Department notes that the definition of covered active duty in the FY 2010 NDAA specifically refers to the Armed Forces for members of both the Regular Armed Forces and the National Guard and Reserve components.
See
29 U.S.C. 2611 (14). “[A]rmed [F]orces” is defined in 10 U.S.C. 101(a)(4) as the “Army, Navy, Air Force, Marine Corps, and Coast Guard.” While the NOAA Commissioned Corps and the U.S. Public Health Service Commissioned Corps are, part of the uniformed services as defined in 10 U.S.C. 101(a)(5), they are explicitly not part of the Armed Forces as defined in 10 U.S.C. 101(a)(4) and the Department lacks the authority to expand coverage for qualifying exigency leave as requested. Therefore, the Department adopts paragraph (a) as proposed in the Final Rule without modification.
Current § 825.126(a) sets forth the list of reasons for which an eligible employee may take qualifying exigency leave. The current qualifying exigency leave categories are: (1)
Short-notice deployment,
(2)
military events and related activities,
(3)
childcare and school activities,
(4)
financial and legal arrangements,
(5)
counseling,
(6)
rest and recuperation,
(7)
post-deployment activities,
and (8)
additional activities.
The Department proposed to move this list to § 825.126(b) without changing the subparagraph numbers that correspond to categories of qualifying exigencies.
Proposed § 825.126(b)(1) tracked current § 825.126(a)(1), which sets forth the requirements for
short-notice deployment
qualifying exigency leave. In addition to redesignating this subparagraph from (a)(1) to (b)(1), the proposal inserted the term “covered active duty” and deleted the reference to contingency operations from this section. However, the Department requested comment on whether the current seven-calendar-day period for
short-notice deployment
qualifying exigency leave remained appropriate. The Department received a few comments on this issue. The Coalition commented that, based on feedback from its members, the current seven-day period remains appropriate, and, along with SHRM, urged the Department not to make any changes to this section. World at Work conducted a survey (to which it received 94 responses) on issues raised in the NPRM, and found that the majority of requests for
short-notice deployment
qualifying exigency leave have not been for amounts of time beyond the current allotment. In contrast, the National Association of Letter Carriers (the Letter Carriers) suggested the period be expanded to 15 days, stating its members have found that seven days is often inadequate for dealing with all of the arrangements and adjustments that family members must make when faced with short-notice deployment. Twiga, an organization that advocates for workplace flexibility, also suggested an expansion to 15 days, asserting that some military members face difficulties in securing alternative childcare arrangements within a seven-day period.
The Department acknowledges the concern that seven days may be inadequate to address all issues arising from the short-notice deployment of a military member. After this seven-day-period, however, the employee remains entitled to qualifying exigency leave for any of the other enumerated exigencies set forth in this section. For example, an eligible employee would be able to take leave pursuant to § 825.126(b)(3) to address childcare arrangement issues arising from the military member's deployment subsequent to the seven-day short-notice period. Likewise, the employee is entitled, pursuant to current § 825.126(a)(8), to job-protected leave to address events arising out of the military member's deployment that are not included in the list of qualifying exigencies provided that the employer and employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave. Accordingly, the Final Rule adopts the redesignation of § 825.126(a)(1) to § 825.126(b)(1) as proposed and retains the seven-day period for
short-notice deployment
qualifying exigency leave.
Proposed § 825.126(b)(3),
childcare and school activities,
tracked current § 825.126(a)(3), which allows eligible employees to take qualifying exigency leave to arrange childcare or attend certain school activities for a military member's son or daughter. In addition to redesignating this paragraph from (a)(3) to (b)(3), the Department proposed to delete repetitive text throughout this paragraph identifying the relationship between the child and the military member. Proposed § 825.126(b)(3) stated that, for purposes of the childcare and school activities leave listed in § 825.126(b)(3)(i) through (iv), the child must be “the military member's biological, adopted, or foster child, stepchild, legal ward, or child for whom the military member stands in loco parentis, who is either under 18 years of age or 18 years of age or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence”, and also added language to clarify that, as with all instances of qualifying exigency leave, the military member must be the spouse, son, daughter, or parent of the employee requesting leave. As stated in the NPRM, the Department believes this clarifying language is necessary because of this section's unique relationship requirements. 77 FR 8966. While the military member must be the spouse, parent, or son or daughter of the eligible employee, the child for whom childcare leave is sought need not be a child of the employee requesting leave.
Several commenters addressed the clarifying language in proposed § 825.126(b)(3) with respect to
childcare and school activities
qualifying exigency leave. Legal Aid commended the Department for including such language. In contrast, an individual commenter did not support granting leave to military members' families to take leave for school activities when non-military working parents do not receive this benefit. Several commenters, including the Family Equality Council, North Carolina Justice Center, the Partnership, and Twiga, urged the Department to explicitly note that all FMLA regulations are interpreted to include the children of persons standing in loco parentis to those children. Twiga recommended the Department strike the requirement that the military member must be the spouse, son, daughter, or parent of the employee taking qualifying exigency leave and instead simply require that the employee be the parent of, or stand in loco parentis to, the military member's child for this category of qualifying exigency leave. The Partnership, Twiga, and the Family Equality Council noted that the Wage and Hour Administrator's Interpretation No. 2010-3, issued on June 22, 2010, stated that in loco parentis under the FMLA includes all persons with day-to-day responsibility to care for or financially support a child. For these reasons, Twiga suggested that the definition of who may take qualifying exigency leave should be flexible enough to account for relationships beyond the nuclear family.
A number of commenters, including Senators Harkin and Murray, and the Partnership, suggested adding a new qualifying exigency leave category to address issues regarding educational and related services for a child with a disability under the Individuals with
Disabilities Education Act (IDEA) or section 504 of the Rehabilitation Act of 1973, including attending meetings about eligibility, placement, and services, or to develop, update, or revise the child's Individual Education Plan under the IDEA. The North Carolina Justice Center also suggested the Department indicate that other childcare needs, such as the need to arrange for summer care and to attend medical appointments for children, would be included.
In response to the comments regarding in loco parentis, the Department reiterates its interpretation in Administrator's Interpretation No. 2010-3 that either day-to-day care or financial support may establish an in loco parentis relationship under the FMLA where the adult intends to assume the responsibilities of a parent with regard to a child. However, the statutory provisions of the FMLA with respect to qualifying exigency leave are very specific that the military member on covered active duty or call to covered active duty status must be the spouse, parent, or son or daughter of the eligible employee in order for the FMLA protections to apply. 29 U.S.C. 2612(a)(1)(E). Therefore, the fact that an employee may stand in loco parentis to a child of a military member is not sufficient to satisfy the statutorily-required relationship with the military member for qualifying exigency leave. The statute requires that the employee, whether or not he or she stands in loco parentis to the military member's child, have the requisite relationship with the military member. For example, the mother of a military member may be entitled to childcare and school activities qualifying exigency leave for the military member's child, but the military member's mother-in-law would not be regardless of her relationship to the military member's child. The Department notes, however, that any eligible employee who stands in loco parentis to the child of a military member (or any other child) is entitled to take FMLA leave if the child needs care due to a serious health condition. In light of the confusion indicated in the comments regarding the relationship requirements for qualifying exigency leave for childcare and school activities, the Department believes that the proposed clarification is beneficial.
In response to comments seeking the addition of a specific qualifying exigency category for educational and related services for disabled children, the Department notes that § 825.126(b)(3) allows qualifying exigency leave for a broad array of childcare and school activities, which could include leave to enroll a child in summer day camp or similar kind of summer day care at the end of the school year if the need to do so arises out of the military member's covered active duty or call to covered active duty. 73 FR 67959. Likewise, § 825.126(b)(3)(iv) provides for qualifying exigency leave to attend meetings with staff at a school or daycare facility, such as meetings with school counselors, parent-teacher conferences, or meetings with school officials regarding disciplinary matters, when such meetings are necessary due to circumstances arising from the covered active duty or call to covered active duty of a military member. The Department believes the current regulation is sufficient to include attending meetings about eligibility, placement, and services, or to develop, update or revise a child's Individual Education Plan when those meetings are necessary due to the covered active duty or call to covered active duty of a military member. The Department does not intend for this leave to be used to meet with staff at a school or daycare facility for routine academic concerns, nor to be used for routine educational and related services for a child with a disability under the Individuals with Disabilities Education Act that are unrelated to the military member's deployment. Therefore, no additional clarification or additional categories of childcare and school activities are added to the Final Rule. The Final Rule adopts the re-designation of § 825.126(a)(3) to § 825.126(b)(3) and the other proposed changes in § 825.126(b)(3) without modification.
Proposed § 825.126(b)(6),
Rest and Recuperation,
followed current § 825.126(a)(6), which allows an eligible employee to take up to five days of leave to spend time with a military member on Rest and Recuperation leave during a period of deployment. In addition to re-designating this paragraph from (a)(6) to (b)(6) and capitalizing Rest and Recuperation to correspond directly to the DOD's Rest and Recuperation leave programs, the Department also proposed to expand the maximum duration of
Rest and Recuperation
qualifying exigency leave from five days to the duration of the military member's Rest and Recuperation leave, up to a maximum of 15 days. As stated in the NPRM, the DOD has advised the Department that the actual number of days of Rest and Recuperation leave provided by the military varies, with some military members receiving as many as 15 days, depending upon the length of their deployment. 77 FR 8966. The Department proposed to allow the amount of leave an employee may take for
Rest and Recuperation
qualifying exigency leave to equal that provided to the military member, up to a maximum of 15 days. The Department sought comment on the expansion of
Rest and Recuperation
qualifying exigency leave, and whether the proposed 15-day period would be sufficient in all instances.
Several commenters, including World at Work, North Carolina Justice Center, the Partnership, and the Military Officers Association of America, supported the Department's proposal to expand
Rest and Recuperation
leave up to a maximum of 15 days. The Military Officers Association of America and the Partnership stated that it is appropriate to grant employees time with their military family members when the military member is home for a limited time from a foreign deployment, as allowing for such leave positively impacts family members at home and improves the morale of those serving abroad. SHRM supported the expansion, but suggested that the leave be limited only to the actual Rest and Recuperation time at home or some other destination where the military member will take the Rest and Recuperation leave. The Coalition agreed that an extension is appropriate, but commented that 15 days is excessive and suggested a 10-day period instead. The Coalition commented that as written, the proposal would allow an employee to take 15 days off of work, potentially equating to three full five-day workweeks of leave, while the military's leave programs allow up to 15 calendar days of leave, which is meant to allow the military member two weeks at home. The Letter Carriers commented that because the need for recuperation can vary tremendously depending on the nature of the deployment, the leave granted for this exigency should be equal to the amount of leave the military has determined to be necessary and has granted for the military member, up to a maximum of at least 30 days.
As stated in the NPRM, the Department believes it is appropriate to make the availability of this type of qualifying exigency leave consistent with the leave actually provided by the military to the member on covered active duty. 77 FR 8966. Therefore, the Department has decided to implement the regulation as proposed in the Final Rule, providing for up to a maximum of 15 days for
Rest and Recuperation
qualifying exigency leave, but has modified the language for clarity. The Department has modified the language to delete the reference to eligible
employees because the paragraph (b) makes it clear that all of the subparagraphs under (b), including this one, apply only to eligible employees. Further, in response to the comments, the Department has modified the language to state that leave taken for this purpose can be used for a period of 15 calendar days beginning on the date the military member commences each instance of Rest and Recuperation leave. This language is consistent with the Department's position for
short-notice deployment
leave found in § 825.126(b)(1). The Department reiterates that, as noted in the NPRM, this allows an employee to take
Rest and Recuperation
qualifying exigency leave for the same amount of time as is provided to the military member for the member's Rest and Recuperation leave, up to a maximum of 15 days. 77 FR 8966. The Department further clarifies that the employee may choose to take the leave in a continuous block of time or intermittently over the duration of the military member's Rest and Recuperation leave, up to 15 calendar days. Thus, the employee's leave does not need to be taken as a single block of time. However, it must be taken during the period of time indicated on the Rest and Recuperation orders.
Proposed § 825.126(b)(7),
Post-deployment activities
tracked current § 825.126(a)(7). In addition to the redesignation of paragraph from (a)(7) to (b)(7), the Department proposed to add attending funeral services to redesignated paragraph (b)(7)(ii), which permits an employee to take qualifying exigency leave to address issues that arise from the death of a military member while on covered active duty status, as an additional example of the activities that are covered by such leave. Legal Aid supported this addition. SHRM endorsed the Department's clarification, stating that according to SHRM survey data, over 90 percent of all employers currently provide some form of paid bereavement leave, and the availability of qualifying exigency leave for this purpose ensures coverage for those who take such leave. Accordingly, the Department implements the redesignation and § 825.126(b)(7)(ii) as proposed.
The Department did not propose any new qualifying exigencies for which FMLA leave may be taken, but invited comment on whether additional qualifying exigencies should be added in light of the extension of this leave entitlement to family members of members of the Regular Armed Forces. The Department received one comment in response. The Letter Carriers suggested adding an eldercare provision as an additional qualifying exigency, stating that several of its members have indicated that providing and making arrangements for eldercare is as pressing a need for them as childcare is when they face military deployment.
The Department agrees that the need to provide care to a military member's parent is analogous to the need to provide care for a military member's child and that such a need may arise when a military member is called to covered active duty. Consistent with the purpose and intent of the qualifying exigency leave provision in the FMLA, the Department modifies the Final Rule to create a new provision for parental care qualifying exigency leave. An eligible employee may take qualifying exigency leave to care for the parent of a military member, or someone who stood in loco parentis to the military member, when the parent is incapable of self-care and the need for leave arises out of the military member's covered active duty or call to covered active duty status. In the 2008 Final Rule establishing qualifying exigency leave for
childcare and school activities,
the Department stated that certain childcare and school activities require attention because the military member is on active duty or has been called to active duty status and that qualifying exigency leave would be appropriate in such situations, but that routine events that occur regularly for all children would not warrant qualifying exigency leave. 73 FR 67959. This same standard applies to qualifying exigency leave to care for a military member's parent when the parent is incapable of self-care. Therefore, the parental care qualifying exigency provision in the Final Rule tracks the childcare provision in setting out the types of situations when qualifying exigency leave is available. Thus, parental care qualifying exigency leave may be used for: (i) Arranging for alternative care for a parent of the military member when the parent is incapable of self-care and the covered active duty or call to covered active duty status of the military member necessitates a change in the existing care arrangements; (ii) providing care for a parent of the military member on an urgent, immediate need basis (but not on a routine, regular, or everyday basis) when the parent is incapable of self-care and the need to provide such care arises from the covered active duty or call to covered active duty status of the military member; (iii) admitting or transferring a parent of the military member to a care facility when the admittance or transfer is necessitated by the covered active duty or call to covered active duty status of the military member; and (iv) attending meetings with staff at a care facility for the parent of the military member, such as meeting with hospice or social service providers, when such meetings are necessitated by the covered active duty or call to covered active duty status of the military member (but not for routine or regular meetings). For purposes of parental care qualifying exigency leave, incapable of self-care means that the parent requires active assistance or supervision to provide daily self-care in three or more of the “activities of daily living” or “instrumental activities of daily living.” Activities of daily living include, but are not limited to, adaptive activities such as caring appropriately for one's grooming and hygiene, bathing, dressing, and eating. Instrumental activities of daily living include, but are not limited to, cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc. This definition of incapable of self-care is adopted from § 825.122(d)(1), where it is used as part of the determination of whether a child 18 years of age or older is a son or daughter under the FMLA. Thus, for example, if a military member's parent is incapable of self-care and the parent was cared for by the military member, an eligible employee may take parental care qualifying exigency leave to arrange for the alternative care of the military member's parent, such as hiring a home health care aide, or to provide, on an urgent, immediate need basis, care that a home health care aide would normally provide. In either event, however, the employee may not take parental care qualifying exigency leave to provide such care to the parent on a regular or routine basis, even if the military member previously provided such regular or routine care. The Department reiterates that as with all instances of qualifying exigency leave, the military member must be the spouse, parent, son, or daughter of the employee requesting qualifying exigency parental care leave. In the case of parental care leave, the parent in need of care must be the military member's parent or a person who stood in loco parentis to the military member when the member was less than 18 years old. Accordingly, the Department creates a new provision for
parental care
leave at § 825.126(b)(8), and redesignates
additional activities
from current § 825.126(a)(8) to § 825.126(b)(9).
3. Section 825.127 Leave To Care for a Covered Servicemember With a Serious Injury or Illness (Military Caregiver Leave)
Section 825.127 sets forth the regulation allowing an eligible employee who is a covered servicemember's spouse, son, daughter, parent, or next of kin to take up to 26 workweeks of leave during a single 12-month period to care for a servicemember with a serious injury or illness (military caregiver leave). Section 825.127 implemented Section 585(a) of the FY 2008 NDAA, which entitled an eligible employee who is a spouse, parent, son, daughter, or next of kin of a current servicemember with a serious injury or illness, to take FMLA leave to provide care to that covered servicemember. Section 565(a) of the FY 2010 NDAA further expands military caregiver leave to eligible employees caring for certain veterans with a qualifying (as defined by the Secretary of Labor) injury or illness incurred in line of duty on active duty or that existed before the member's active duty and was aggravated in the line of duty on active duty. 29 U.S.C. 2611(15)(B). Section 565(a) also amends the FMLA by revising the definition of a serious injury or illness for current servicemembers of the Armed Forces to include conditions that existed before the current servicemember's active duty and were aggravated by service in the line of duty on active duty. 29 U.S.C. 2611(18)(A).
The Department proposed to reorganize § 825.127 to incorporate the substantive changes to the military caregiver leave provisions pursuant to the FY 2010 NDAA amendments. The Department proposed to add the term military caregiver leave to the title of this section for clarity. The Department also proposed to move current § 825.127(b), which defines the family members qualified to take caregiver leave, to proposed § 825.127(d), current § 825.127(c), which explains the single 12-month period, to proposed § 825.127(e), and current § 825.127(d), which addresses circumstances when a husband and wife who are both eligible for FMLA leave work for the same employer, to proposed § 825.127(f), as well as to update the internal cross-references in the provision accordingly. The Department did not receive any comments on the proposal to redesignate these three paragraphs or to modify the title of this section. The Department adopts these proposed changes in the Final Rule.
Consistent with the FY 2008 NDAA, under current § 825.127(a), an eligible employee may take FMLA leave to care for a current member of the Armed Forces, including National Guard and Reserves members, with a serious injury or illness incurred in the line of duty on active duty for which the servicemember is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list. This paragraph specifically excludes former members of the Regular Armed Forces, former members of the National Guard and Reserves, and members on the permanent disability list from the current definition of a covered servicemember. In accordance with the FY 2010 NDAA, the Department proposed to remove the statement that military caregiver leave does not apply to former members of the military from proposed paragraph (a), and to move the definitions in current paragraph (a)(1) to proposed paragraph (c) and current paragraph (a)(2) into proposed paragraph (b). The Department proposed in paragraph (a) to state simply that eligible employees are entitled to take FMLA leave to care for a covered servicemember with a serious injury or illness. The Department did not receive any comments on proposed paragraph (a), and therefore, adopts this paragraph without modification in the Final Rule.
The Department proposed in § 825.127(b) to define a covered servicemember for current members of the Armed Forces and for covered veterans. Proposed § 825.127(b)(1) defined
covered servicemember
for current members of the Armed Forces, including members of the Reserve components. The proposed definition mirrored the statutory definition. 29 U.S.C. 2611(15)(A). The proposed definition also incorporated the definition of outpatient status from current § 825.127(a)(2), which applies only to current servicemembers. No comments were received on this proposal. It is adopted without modification in the Final Rule.
Proposed § 825.127(b)(2) defined
covered servicemember
for veterans as a covered veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness. It further defined a
covered veteran
as an individual who was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran.
See
29 U.S.C. 2611(15)(B) (defining a covered servicemember as a veteran “who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness” and who was a member of the Armed Forces “at any time during the period of 5 years preceding the date of which the veteran undergoes that medical treatment, recuperation, or therapy”); 29 U.S.C. 2611(19) (defining veteran as the term is defined in 38 U.S.C. 101). As discussed in the NPRM, the Department noted that Congress extended FMLA leave to care for a particular subset of veterans. 77 FR 8967. The Department noted that this interpretation may exclude veterans of previous conflicts such as Gulf War veterans, as well as certain veterans of the War in Afghanistan and Operation Iraqi Freedom.
Id.
The proposal also indicated that an eligible employee must commence leave to care for a covered veteran within five years of the veteran's active duty service, but noted the single 12-month period described in proposed paragraph (e)(1) may extend beyond the five-year period. As explained in the NPRM, the Department proposed to measure the five-year period from the date the employee first takes leave to care for the veteran, and to permit an employee to continue leave begun within the five-year period until the end of the applicable single 12-month period.
Id.
Thus, if the leave commences within the five-year period, the employee may continue leave for the applicable single 12-month period even if it extends beyond the five-year period.
The Department received several comments on this definition. SHRM commented that the definition failed to include the requirement that the veteran was a member of the Armed Forces (including a member of the National Guard or Reserves) that is part of the statutory definition at 29 U.S.C. 2611(15)(B). The Department had not included this phrase in the proposed definition because the Department's understanding was that all veterans were, by definition, members of the Armed Forces, and therefore the Department believed that the inclusion of such language was unnecessary. While this is still the Department's understanding, in the interest of clarity, the Department modifies § 825.127(b)(2), as well as the corresponding definitions in §§ 825.102 and 825.122, in the Final Rule to incorporate this statutory language.
The majority of the comments on this section were directed at the Department's interpretation of the five-year period. The Partnership and Twiga supported the Department's interpretation that an employee who begins taking military caregiver leave during the five-year period will be permitted to continue taking such leave after the five-year period has expired.
Similarly, the North Carolina Justice Center approved of the interpretation of the five-year period for veterans. Both the Partnership and the North Carolina Justice Center noted, however, that some veterans who would have been covered veterans under this interpretation of the five-year period when the FY 2010 NDAA was enacted on October 28, 2009 will have been discharged for more than five years when these regulations become effective and, therefore, will no longer be covered veterans for whom an employee may take military caregiver leave. They urged the Department to provide for a special exception for the calculation of the five-year period for such veterans who have qualifying injuries or illnesses so that their family members will be able to take caregiver leave to care for them. The Consortium for Citizens with Disabilities (CCD) recognized that the five-year time period is statutorily determined, but asked that the Department adopt as broad a definition as possible. Senators Harkin and Murray suggested that the time period between the date the law was enacted (October 28, 2009) and the effective date of these regulations should not count in the five-year window. They provided an example of a scenario in which a servicemember became a veteran on July 1, 2010 and the Department's final regulations become effective on July 1, 2012—they asserted that this servicemember's family should be eligible to take military caregiver leave until June 30, 2017 rather than until June 30, 2015.
While the Department has taken and continues to take the position that the military caregiver leave provision to care for veterans is not effective until the effective date of this Final Rule, the Department acknowledges that the time in which family members of veterans can take military caregiver leave to care for veterans who were discharged or released between October 28, 2009 and the effective date of this Final Rule has been diminished. The comments highlighted that there are veterans whose five-year period will have expired between October 28, 2009 and the effective date of this Final Rule but who will still have serious injuries or illnesses and will still need caregiving from family members when this Final Rule becomes effective. The comments likewise highlighted that there are servicemembers who will have become veterans between October 28, 2009 and the effective date of this Final Rule and who will have a shortened period remaining in their five-year window during which they may receive needed caregiving from family members for a serious injury or illness when this Final Rule becomes effective. Similarly, there may be servicemembers who became or will become veterans between October 28, 2009 and the effective date of this Final Rule and who will manifest a serious injury or illness that was incurred or aggravated in the line of duty and will need caregiving from family members for longer than the shortened period remaining in their five-year window when this Final Rule becomes effective. Therefore, after further consideration, the Department believes that it would not be consistent with congressional intent to deprive the family members of such veterans the complete amount of time that the family members would have had to take military caregiver leave to care for those servicemembers who became veterans between October 28, 2009 (the date the FY 2010 NDAA was enacted) and the effective date of this Final Rule. Therefore, the Department has modified § 825.127(b)(2) in the Final Rule to provide for a special method of calculating the five-year period for this subset of veterans: for an individual who was a member of the Armed Forces (including a member of the National Guard or Reserves) and who was discharged or released under conditions other than dishonorable prior to the effective date of this Final Rule, the period between October 28, 2009 and the effective date of this Final Rule shall not count towards the determination of the five-year period for covered veteran status. This will protect the military caregiver leave entitlement for the family members of veterans whose five-year period either expired or was diminished between October 28, 2009 and the effective date of this Final Rule. Thus, for a veteran whose five-year period expired between October 28, 2009 and the effective date of this Final Rule, the five-year period will be extended by the amount of time that the veteran would have had if the provision had been effective on October 28, 2009. For example, if, on October 28, 2009, a veteran had one year remaining before the expiration of the five-year period (
i.e.,
the veteran was honorably discharged from the military on October 28, 2005), the veteran's family member would have one year from the effective date of this Final Rule during which he or she could, if all other conditions were met, commence taking military caregiver leave. Similarly, as suggested by Senators Harkin and Murray, for a servicemember who became a veteran between October 28, 2009 and the effective date of this Final Rule, the five-year period will be extended by the amount of time between the veteran's date of discharge and the effective date of this Final Rule. For example, if a servicemember became a veteran two years before the date this Final Rule becomes effective, the two years that elapsed between that date of discharge and the effective date of this Final Rule would be excluded from the calculation of the period in which the veteran's family members could begin taking FMLA military caregiver leave. In such a situation, two years would be added to the amount of time that the veteran has remaining in his or her five-year window as of the date that this Final Rule becomes effective. In all instances of military caregiver leave, regardless of how the five-year period is calculated, the veteran must have a qualifying serious injury or illness on the date the family member seeks to take military caregiver leave. In addition, this special provision for the subset of veterans described above does not change the character of any leave to care for a veteran that was voluntarily provided by an employer before the effective date of this Final Rule and that was not otherwise qualified as FMLA-protected leave. As discussed earlier in this preamble, if such leave was provided before the effective date of this Final Rule, the leave is not FMLA-protected leave and does not count against an employee's FMLA entitlement.
The Department proposed in § 825.127(c) to define a serious injury or illness for both current members of the Armed Forces and covered veterans. Proposed § 825.127(c)(1) incorporated the definition of a
serious injury or illness for a current servicemember
from current § 825.127(a)(1), and expanded the definition pursuant to the FY 2010 NDAA amendments to include an illness or injury that existed prior to the member's active duty and was aggravated by service in the line of duty on active duty.
As the Department explained in the NPRM, for both current members of the Armed Forces and covered veterans, a serious injury or illness that existed before the beginning of the servicemember's active duty and was aggravated by service in the line of duty on active duty includes both conditions that were noted at the time of entrance into active service and conditions that the military was unaware of at the time of entrance into active service but that are later determined to have existed at that time. 77 FR 8967. A preexisting injury or illness would generally be considered to have been aggravated by service in the line of duty on active duty where there is an increase in the
severity of such injury or illness during service, unless there is a specific finding that the increase in severity is due to the natural progression of the injury or illness. As stated in the NPRM, it was the Department's understanding that individuals will not be accepted for military service in the Regular or Reserve components unless they are: (1) Free of contagious diseases that probably will endanger the health of other personnel; (2) free of medical conditions or physical defects that may require excessive time lost from duty for necessary treatment or hospitalization, or probably will result in separation for medical unfitness; (3) medically capable of satisfactorily completing required training; (4) medically adaptable to the military environment without the necessity of geographical area limitations; and (5) medically capable of performing duties without aggravation of existing physical defects or medical conditions. 77 FR 8967. In light of these standards, the Department sought comments, particularly from military members and their families, concerning types of injuries or illnesses that may exist prior to service and be aggravated in the line of duty on active duty to such an extent as to render the servicemember unable to perform the duties of the member's office, grade, rank, or rating. The Department did not receive any comments in response.
The Department received two comments that addressed proposed § 825.127(c)(1) more generally. Senators Harkin and Murray and the CCD suggested that the Department consider participation in or meeting the eligibility requirements of the Department of Defense Special Compensation for Assistance with Activities of Daily Living (SCAADL) caregiver program as a method to establish the current servicemember's serious injury or illness. The SCAADL program was authorized by the FY 2010 NDAA and implemented by the Department of Defense in August 2011.
See
Public Law 111-84 and Department of Defense Instruction 1341.12. The SCAADL program provides compensation to an eligible member of the active or Reserve components of the military who has a permanent catastrophic injury or illness that was incurred or aggravated in the line of duty. The compensation is intended to offset the economic burden borne by the servicemember's primary caregiver in providing such caregiving. The criteria for participation in the SCAADL program includes, in relevant part, certification by a licensed DOD or VA physician that the servicemember has a permanent catastrophic injury or illness and is in need of assistance from another person to perform the personal functions required in everyday living and that, in the absence of the provision of such assistance, the servicemember would require hospitalization, nursing home care, or other residential institutional care. 37 U.S.C. 439. The Department notes that the definition of
serious injury or illness for a current servicemember
in § 825.127(c)(1) reflects the statutory definition of the term. While the Department does not believe that it would be appropriate to add participation in the SCAADL program as a second definition for serious injury or illness of a current servicemember, it does believe that a current servicemember enrolled in the program may meet the requirement of suffering a serious injury or illness that renders the servicemember unable to perform the duties of his or her office, grade, rank, or rating. As discussed in more detail in the discussion of § 825.310 below, private health care providers may consider documentation produced by the DOD, such as DD Form 2948, in assessing whether the current servicemember has a serious injury or illness that may render him or her medically unfit to perform the duties of his or her office, grade, rank, or rating.
The FY 2010 NDAA requires the Department to define a qualifying serious injury or illness for a veteran. Proposed § 825.127(c)(2) defined serious injury or illness for a covered veteran as an injury or illness that was incurred in the line of duty on active duty or existed before the beginning of active duty and was aggravated by service in the line of duty on active duty and manifested before or after the member became a veteran and satisfied one of three alternate definitions set out in paragraphs (c)(2)(i), (c)(2)(ii), and (c)(2)(iii). With these three proposed definitions, the Department intended for there to be parity between the definition of a serious injury or illness of a covered veteran and the statutory definition of a serious injury or illness of a current servicemember. Because a veteran no longer has a military office, grade, rank, or rating and may participate in the civilian workforce, the standard for a serious injury or illness for current members of the Armed Forces cannot be directly applied to veterans. The three alternative definitions set out in the proposal at (c)(2)(i), (ii), and (iii) were intended to achieve this parity. As discussed later, the Department also requested comment on adding enrollment in the Department of Veterans Affairs (VA) Program of Comprehensive Assistance for Family Caregivers as a possible fourth definition for establishing a qualifying serious injury or illness of a covered veteran, and sought comment from veterans and caregivers on whether inclusion of this program would be helpful. 77 FR 8969.
Proposed § 825.127(c)(2)(i) defined a
serious injury or illness of a covered veteran
as a serious injury or illness of a current servicemember, as defined in proposed § 825.127(c)(1), that continues after the servicemember becomes a veteran. Thus, if a veteran suffered a serious injury or illness when he or she was a current member of the Armed Forces and that same injury or illness continues after the member leaves the Armed Forces and becomes a veteran, the injury or illness will continue to qualify as a serious injury or illness warranting military caregiver leave. As stated in the NPRM, the Department believes that allowing qualifying family members to take leave to care for covered veterans who continue to suffer from these serious injuries or illnesses is consistent with congressional intent, as evidenced by the extension of military caregiver leave provisions for veterans for a defined five-year period. 77 FR 8967. Senators Harkin and Murray submitted the only comment on this definition, and stated that the definition is clear and understandable. The Final Rule incorporates this definition as proposed.
Proposed § 825.127(c)(2)(ii) defined a
serious injury or illness for a covered veteran
as a physical or mental condition for which the covered veteran has received a VA Service Related Disability Rating (VASRD) of 50 percent or greater, and the VASRD rating is based, in whole or part, on the condition for which the caregiver leave is needed. As discussed in the NPRM, the Department considered proposing a VASRD rating of 60 percent, which is equal to the level at which the veteran is considered “totally disabled”, meaning that the veteran is unable to secure or follow a substantially gainful occupation by reason of a service-connected disability under the VA regulations. 77 FR 8968;
see
38 CFR 4.16. The Department was concerned, however, that veterans may suffer from injuries and illnesses that do not result in a total disability under the VASRD rating system, but which should qualify as a serious injury or illness for military caregiver leave. The Department also considered proposing a VASRD rating at a level less than 50 percent, but determined that a lower threshold might capture injuries and illnesses that Congress did not intend to qualify as
serious injuries or illnesses for which employees would be entitled to 26 workweeks of FMLA leave. In addition, the Department believed that a single threshold of an overall VASRD rating of 50 percent (based on a single or multiple disabilities) was more appropriate to establish a serious injury or illness for a covered veteran than the two-tiered test used under VASRD determining total disability based on multiple conditions. The Department sought comments on all aspects of this proposed definition.
Several comments were received with respect to the second proposed definition of a qualifying serious injury or illness for a veteran set out in § 825.127(c)(2)(ii). Senators Harkin and Murray stated that the proposed 50 percent VASRD rating threshold is sufficient so long as there are other avenues for the veteran to qualify as having a serious injury or illness. The Partnership expressed concern that the 50 percent VASRD rating may not capture certain serious injuries and illnesses. The Partnership pointed to traumatic brain injuries and post traumatic stress disorder and suggested that these conditions may not be captured by the 50 percent threshold. An individual commenter expressed a similar concern regarding post traumatic stress disorder. The CCD noted that while a 50 percent VASRD rating is likely to capture the most significantly disabled veterans, a number of arguably serious conditions may not be rated at a level of 50 percent or greater, and cited a number of conditions that it asserted should be covered but that might not be rated at a level of 50 percent or greater. Legal Aid commented that the Department's decision to pick a certain VASRD rating rather than allowing for the more fact-specific inquiry allowed for under the definition of serious health condition seemed unnecessarily rigid.
The Department has considered the comments, and continues to believe that a VASRD rating of 50 percent or greater is most reflective of congressional intent and is the rating at which injuries or illnesses are on par with a serious injury or illness of a current servicemember. In proposing a threshold of 50 percent, the Department was attempting to ensure that disabilities or conditions that may render the veteran substantially unable to work were captured, so as to achieve parity with the definition of serious injury or illness for a current servicemember. At the same time, the Department was attempting to ensure that the threshold was great enough to preclude injuries or illnesses that Congress did not intend to include in the definition of a serious injury or illness. The Department's review indicates that a VASRD disability rating of 50 percent or greater encompasses disabilities or conditions such as amputations, severe burns, post traumatic stress disorder, and severe traumatic brain injuries. While these and other injuries and illnesses may not result in a total disability under the VASRD rating system, the Department believes that such conditions should qualify as a serious injury or illness for military caregiver leave. Similarly, as noted in the NPRM, the Department believes that a VASRD rating below 50 percent would fail to reach the level of severity intended by Congress. 77 FR 8968. The commenters who addressed this proposed definition did not suggest an alternative VASRD rating that would better capture conditions that should be considered a serious injury or illness. Therefore, in order to achieve parity with the standard of a serious injury or illness for a current member of the Armed Forces, the Department concludes that a VASRD rating of 50 percent or greater is appropriate and most closely approximates a condition that substantially impairs a veteran's ability to work.
The Department is cognizant of the commenters' concern that many veterans who will have a need for care arising out of an injury or illness related to military service may not have received a VASRD rating. The Department reiterates its intent that the VASRD rating be only one alternative for establishing a qualifying serious injury or illness of a covered veteran. In instances where the servicemember has not yet received a VASRD rating, family members will still be able to take leave if the veteran's condition is such that it constitutes a serious illness or injury in accordance with any one of the other definitions set forth in § 825.127(c)(2). Therefore, the Department adopts proposed § 825.127(c)(2)(ii) without modification in the Final Rule.
The Department proposed a third definition of
serious injury or illness for a covered veteran
in § 827.127(c)(2)(iii) as a physical or mental condition that substantially impairs the veteran's ability to secure or follow a substantially gainful occupation by reason of a service-connected disability or would do so absent treatment. 77 FR 8968. This definition was intended to cover injuries and illnesses that are similar in severity to the injuries and illnesses qualifying under the proposed definitions in (c)(2)(i) and (ii), but for which the veteran did not obtain certification as a serious injury or illness when he or she was a current member of the military or had not received a VASRD rating. In addition, the Department intended by this definition to cover veterans who may need a family member to provide care for injuries or illnesses that,
absent treatment,
would substantially impair the veteran's ability to secure or follow a substantially gainful occupation. 77 FR 8968. The Department explained that it expected that, when making determinations of a serious injury or illness under this proposed definition, health care providers would do so in the same way they make similar determinations for Social Security Disability and Workers' Compensation claims.
Id.
at 8969.
The Department sought comment specifically on whether this proposed definition would be effective at capturing the serious injuries or illnesses that covered veterans suffer for which caregiving is needed by qualifying family members and which would not be covered under the first two proposed definitions in paragraphs (c)(2)(i) and (c)(2)(ii). The Department also sought comment on the ability of health care providers to certify a serious injury or illness for a covered veteran and the ability of employers to administer leave associated with a serious injury or illness for a covered veteran under this proposed definition. Finally, the Department sought comment on the types of injuries and illnesses that typically manifest after the servicemember becomes a veteran, whether a family member is needed to care for the veteran for such injuries or illnesses, and, if so, whether the proposed definition would cover such situations.
The Department received numerous comments on this proposed third definition. The CCD generally supported this proposal (with specific exceptions discussed below) given the length of time it may take to receive a VASRD rating. Several commenters addressed the part of the definition that requires the injury or illness to substantially impair the veteran's ability to work or would do so absent treatment. SHRM asked that the Department provide further guidance on the terms in the definition. Legal Aid, Senators Harkin and Murray, and the Partnership similarly expressed concern that this definition contained undefined terms, which could cause confusion among military families or medical professionals unfamiliar with this language. Twiga and an individual commenter expressed support for the Department's recognition that a veteran may be able to work while also needing assistance performing other daily
activities. However, Aon Hewitt inquired why a family member would still need FMLA leave if the veteran is able to work. This commenter believed that this provision would lead to increased abuse of FMLA leave. Senators Harkin and Murray expressed concern that the focus on a veteran's ability to work might provide a disincentive for the veteran to pursue employment. The Senators further asserted, along with the Partnership, that making a family member's ability to take military caregiver leave dependant on the veteran's inability to work imposes a more stringent standard for leave to care for veterans with a serious injury or illness than for non-veterans with a serious health condition. These commenters recommended that the Department permit military caregiver leave for family members of covered veterans who have a serious health condition that was caused or aggravated in the line of duty on active duty. In contrast, the CCD stated that while the Department does not use a substantially gainful work standard for others to qualify for leave related to a serious health condition, it understood that the Department was attempting to set a higher standard for the enhanced leave provision for family members of veterans. In keeping with this standard, the CCD suggested that using the standard for Social Security Disability Insurance (SSDI) for a healthcare provider to determine if the injury or illness renders the veteran substantially limited in the ability to work because many veterans with significant service-connected disabilities receive an official determination of SSDI before obtaining a VASRD rating. The commenter suggested that an SSDI determination should qualify a covered veteran under this section along with a medical opinion that the injury or illness is at least related to military service. At the same time, the commenter expressed concern that reliance on an SSDI or Workers' Compensation standard could be unnecessarily restrictive. The CCD suggested that the Department include as an alternative definition the veteran's inability to perform a number of activities of daily living. Senators Harkin and Murray similarly suggested as another option a definition based on a veteran's inability to perform a number of activities of daily living and instrumental activities of daily living. Legal Aid asserted that the Department's statement that private health care providers can make determinations of serious injuries or illnesses in the same way they make similar determinations for Social Security Disability and Workers' Compensation claims is unnecessarily complicated as not all private healthcare providers make these types of determinations and Workers' Compensation standards vary by state. This commenter requested that this standard be removed, or if it is retained, that the Department provide more guidance. Lastly, the CCD and Senators Harkin and Murray suggested that the Department remove the term service-connected disability and replace it with a disability that is related to military service or a disability or disabilities eligible for service connection because only the VA can officially determine whether a disability is service-connected.
After carefully considering these comments, the Department has decided to retain the proposed definition in § 825.127(c)(2)(iii) with one modification. In response to comments that only the VA can determine if a disability is connected to the individual's military service, the Department has removed the term service-connected disability or disabilities and replaced it with the term a disability or disabilities related to military service in the Final Rule. This change is made to avoid any confusion as to whether a determination of service connection from the VA is required for this definition; the Department does not view this as a substantive change as the FY 2010 NDAA clearly requires that a covered veteran's serious injury or illness have been incurred or aggravated in the line of duty on active duty. As the Department stated in the NPRM, a certification of serious injury or illness under this definition serves only to establish that the veteran has a condition that entitles his or her family member to military caregiver leave under the FMLA. 77 FR 8969. Such a determination provides no basis for a determination of status, rights, or benefits for the VA or other agencies. The VA is the sole agency qualified to make any service-connected rating determination for purposes of VA-related rights or benefits. The Department believes that the modified phrasing in the Final Rule will prevent possible confusion on this issue.
In response to the comments by the Partnership and Senators Harkin and Murray that this definition links the ability of an employee to take military caregiver leave to the veteran's inability to work, the Department emphasizes that the definition includes a physical or mental condition that would substantially impair a veteran's ability to work absent treatment, and therefore does not preclude coverage of veterans who are employed. The comments illustrate that further clarification of this standard is needed. This definition would cover, for example, a covered veteran with post traumatic stress disorder who is receiving medical treatment and is able to work, but would not be able to do so without treatment, and who needs care from an employee-family member because of this treatment. Thus, this definition recognizes that while a veteran may be able to work, he or she may have a continuing need for treatment for his or her military related injury or illness that, if not treated, would substantially impair his or her ability to secure or follow a gainful occupation. It is the Department's position that in such scenarios, the veteran's family member would be entitled to FMLA caregiver leave to provide care for the veteran, such as driving the veteran to medical appointments or assisting the veteran with basic medical needs.
See
§ 825.124(a). The Department fully supports the goal of returning veterans to the workforce, and does not believe that this definition will undermine that goal.
In addition, in response to the comments urging the Department to adopt the serious health condition standard as the definition of a serious injury or illness of a veteran, the Department notes that an eligible family member is entitled to take 26 workweeks of leave in a single 12-month period under the FMLA military caregiver leave provision.
See
29 U.S.C. 2612(a)(3). As the CCD correctly noted, this is an enhanced leave entitlement, as traditional FMLA only allows 12 workweeks of leave for an eligible employee. When Congress passed the FY 2008 NDAA first creating this enhanced leave provision, it defined a serious injury or illness of a current servicemember as an injury or illness that was incurred by the covered servicemember in the line of duty on active duty in the Armed Forces, and that may render the member medically unfit to perform the duties of the member's office, grade, rank, or rating. Public Law 110-181. Congress did not use the existing statutory standard of serious health condition as defined in 29 U.S.C. 2611(11) as the basis for the military caregiver leave entitlement. When Congress passed the FY 2010 NDAA, it required the Secretary to define a serious injury or illness of a covered veteran. Public Law 111-84. Again, Congress did not use the statutory standard of serious health condition as the basis of the entitlement. Because Congress expressly added a new standard for military caregiver
leave for both current servicemembers and covered veterans instead of referencing the existing serious health condition standard, the Department's intent in defining serious injury or illness of a covered veteran was to achieve parity between the definitions of a serious injury or illness for current servicemembers and for covered veterans for this enhanced leave entitlement. As the definition of a serious injury or illness for a current servicemember is linked to the servicemember's inability to perform the duties of his or her office, grade, rank, or rating, and in light of the fact that veterans no longer have an office, grade, rank, or rating to perform, the Department proposed a definition that would link the veteran's injury or illness to a condition that substantially impairs the veteran's ability to secure or maintain a gainful occupation or would do so absent treatment. For these reasons, the Department does not believe it would be appropriate to define a serious injury or illness of a covered veteran as a serious health condition. The Department notes that where a veteran's injury or illness is not a serious injury or illness as defined in this Final Rule, the veteran's family members would still be able to take FMLA leave to care for the veteran if the condition is a serious health condition and the other requirements for FMLA leave are met.
While the Department acknowledges the comments that some of the terms used in this definition are new to the FMLA, the Department believes that health care providers will be able to make the determination of whether an injury or illness substantially impairs the veteran's ability to secure or follow a substantially gainful occupation or would do so absent treatment. The Department declines to further define these terms at this time, as it believes that such determinations will be a fact-specific inquiry that the health care provider will make based on his or her skills, expertise, and experience. As the Department noted in the NPRM, health care providers are currently called upon to make determinations about an individual's ability to work for Social Security and Workers' Compensation claims, and the Department believes that a health care provider can make similar determinations for FMLA requests for military caregiver leave as well. 77 FR 8969. In response to Legal Aid's comment regarding Social Security Disability and Worker's Compensation, the Department clarifies that it did not propose that private health care providers use the established standards for Social Security Disability or Worker's Compensation evaluations for making serious injury or illness determinations under the proposed definition at § 825.127(c)(2)(iii). Rather, the Department was attempting to illustrate that health care providers already make similar types of determinations regarding an individual's ability to work, and therefore, the Department expects that they have the experience and expertise permitting them to do so for military caregiver leave certifications.
2
2
As discussed in § 825.310, when an employee obtains a certification for military caregiver leave from a private health care provider that is not affiliated with DOD, VA, or TRICARE, if the employer has reason to doubt the validity of the certification, he or she may require the employee to obtain a second (or third opinion) at the employer's expense.
See
§§ 825.310(d); 825.307(b), (c).
Lastly, the Department has decided not to adopt the CCD's recommendation to use SSDI determinations as another means of establishing a serious injury or illness. It is the Department's understanding that the criteria upon which SSDI determinations are based are distinct from the criteria upon which VASRD ratings are based. In light of the fact that the definition in proposed § 825.127(c)(2)(iii) was intended to mirror a 50 percent or greater VASRD rating, relying on a SSDI determination would not necessarily be an equivalent standard. The Department is concerned that if it were to use SSDI determinations to establish a qualifying serious injury or illness of a covered veteran, parity may not be achieved due to the different criteria on which SSDI determinations are based. Moreover, the SSDI determination does not address whether the veteran's injury or illness was incurred or aggravated in the line of duty on active duty. However, the Department believes that if a servicemember has an SSDI determination, a private health care provider may consider the determination in assessing whether a veteran has a qualifying serious injury or illness.
In addition to the three definitions that the Department proposed in the NPRM, the Department also discussed the VA's Program of Comprehensive Assistance for Family Caregivers (
see Caregivers and Veterans Omnibus Health Services Act of 2010,
Public Law 111-163; 38 CFR Part 71) as another possible means through which the severity of a veteran's injury or illness may be assessed. 77 FR 8969. This program is designed to provide health care, travel, training, and financial benefits to certain eligible caregivers of veterans who are eligible for the program. In general, a veteran or servicemember undergoing medical discharge from the Armed Forces is eligible for VA's Program of Comprehensive Assistance for Family Caregivers if the individual has incurred or aggravated a serious injury (including traumatic brain injuries, psychological trauma, or other mental disorders) in the line of duty on or after September 11, 2001; the serious injury renders the individual in need of a minimum of six continuous months of personal care services based on a variety of clinical criteria listed under 38 CFR 71.20 (c)(1)-(4); and it is in the best interest of the individual to participate in the program.
See
38 CFR 71.20. According to the VA, there are approximately 4,600 participants enrolled in the program, and 80 percent of these participants have a VASRD rating of 50 percent or greater. Based on the eligibility requirements for VA's Program of Comprehensive Assistance for Family Caregivers, the Department believed that most veterans who qualify for the program meet the requirement of having a serious injury or illness as defined in this proposal. The Department invited comment on whether adding enrollment in the VA's program as a fourth alternative to the definition of a serious injury or illness of a covered veteran would be appropriate and would reduce the burden placed on military and veterans' families in seeking FMLA leave.
In response to the Department's inquiry, the CCD, Senators Harkin and Murray, and the Coalition submitted comments in support of making enrollment in the VA's Program of Comprehensive Assistance for Family Caregivers part of the definition of serious injury or illness of a veteran. Additionally, the CCD and Senators Harkin and Murray wrote that the Department should also consider a veteran's eligibility for the program as part of the definition for a serious injury or illness even if the veteran is not enrolled. The Department did not receive any responses that expressed opposition to this possible fourth definition. Therefore, in the Final Rule at § 825.127(c)(2)(iv), the Department adopts a fourth definition of a
serious injury or illness
for a veteran: an injury, including a psychological injury, on the basis of which the covered veteran has been enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers will be a qualifying serious injury or illness for military caregiver
leave for a covered veteran. Only actual enrollment by covered veterans in this program will be considered as establishing a qualifying serious injury or illness under this definition. The employee seeking military caregiver leave under this definition does not, however, have to be the designated caregiver for the veteran under the VA's Program of Comprehensive Assistance for Family Caregivers. As with the three other definitions in paragraphs (c)(2)(i) to (iii), enrollment in VA's Program of Comprehensive Assistance for Family Caregivers establishes only that the veteran has a serious injury or illness, and does not mean that the employee is automatically entitled to take FMLA leave. The employee seeking to take FMLA military caregiver leave must qualify as a family member and meet the other eligibility criteria under the FMLA, and the veteran must meet the definition of a
covered veteran
in § 825.127(b)(2). The Department notes that the VA's Program of Comprehensive Assistance for Family Caregivers is open to veterans who were injured on or after September 11, 2001, while FMLA military caregiver leave requires that a veteran have been discharged within five years of the employee's requested leave.
The Department proposed to move the paragraph defining the family members qualified to take military caregiver leave currently in paragraph (b) to paragraph (d) (the numbering of the subparagraphs did not change). No substantive changes were proposed for this paragraph. The Department received several comments, including those submitted by Legal Aid and the North Carolina Justice Center on the definition of next of kin of a covered servicemember that appears in proposed § 825.127(d)(3) urging the Department to expand the definition beyond blood relatives. Two commenters, the Family Equality Council and the Partnership, noted that the repeal of the military's “Don't Ask, Don't Tell” policy means that gay and lesbian servicemembers may now serve openly in the military and that these servicemembers would undoubtedly prefer to be cared for by their same-sex partners or spouses. These commenters suggested that, because the Defense of Marriage Act prevents same-sex couples from being considered spouses for purposes of the FMLA, the Department should expand the definition of next of kin of a covered servicemember to include domestic partners. On a similar note, Twiga stated that Congress intended to provide greater flexibility for military caregiver leave to account for servicemembers relying on care from people other than spouses, parents, or children. According to Twiga, the requirement of consanguinity is outdated because kinship is predicated on broader relationships, including partners and in-laws. This commenter also asserted that the definition would leave adopted servicemembers, who have no literal blood relatives, with no next of kin. It urged the Department to interpret the statute's blood relative requirement to include caretakers with legal relationships or other family members. Additionally, Twiga suggested that, in the special circumstance of a servicemember who is at risk of suicide, fellow servicemembers of that servicemember should be included in the definition of next of kin of a covered servicemember. Lastly, this commenter suggested that the definition take into account the availability of a particular caregiver and, where the next of kin is not available to provide caregiving, the next of kin of a covered servicemember definition should default to a relative who is close in terms of personal relationship and is available.
The Department cannot modify the definition as requested because the Department is constrained by the statutory definition of next of kin in the FMLA. The statute defines next of kin as “the nearest blood relative.” 29 U.S.C. 2611(17). Based on this statutory definition, the Department defined
next of kin of a covered servicemember
in the 2008 Final Rule as the nearest blood relative other than the covered servicemember's spouse, parent, son, or daughter and then provided the order of priority of blood relatives: those who have been granted legal custody; brothers and sisters; grandparents; aunts and uncles; and first cousins. 73 FR 67967-68. In addition, as an alternative to this hierarchy of consanguinity, the 2008 Final Rule provided for the servicemember to designate in writing another blood relative as the nearest blood relative.
Id.
Thus, the 2008 Final Rule adhered to the consanguinity (
i.e.,
blood relationship) element of the statutory definition even in interpreting “nearest” broadly to be based on closeness of personal relationship as an alternative to closest in consanguinity. 73 FR 67968. While a spouse is not a blood relative, the inclusion of spouse among the relatives excluded from the definition of next of kin of a covered servicemember was intended to make clear that the next of kin was an additional family member beyond the covered servicemember's spouse, parents, and children; it was not intended to suggest that the next of kin could be someone unrelated by blood. Given the specific language used in the statutory definition of next of kin (
i.e.,
“blood relative”), there is no basis to include same-sex partners or spouses, or fellow servicemembers, in the definition of next of kin of a covered servicemember. In response to Twiga's concern regarding adopted servicemembers, the Department notes that adoption creates a parent-child relationship between the adopted child and the adoptive parents with all the rights, privileges and responsibilities that attach to that relationship.
See Black's Law Dictionary
(9th ed. 2009). Therefore, for purposes of military caregiver leave and the definition of next of kin of a covered servicemember, adoption has the legal effect of establishing the same consanguineous relationships with family members that a non-adopted child has to that child's family members. Lastly, the Department notes that in the 2008 Final Rule, it considered but rejected the notion of incorporating a “willing and able” concept into the definition because of the anticipated difficulty in proving and verifying the relative's willingness and ability to provide care. 73 FR 67967.
The Department also received two comments, from Senators Harkin and Murray and the CCD, requesting that the Department clarify that each caregiver who takes care of a covered servicemember is able to take the full 26 weeks of leave individually, including situations when multiple employees need leave simultaneously to care for a single covered servicemember. In response to these comments, the Department notes that the military caregiver leave entitlement belongs to the employee-family member of the covered servicemember. Therefore, other than situations when spouses are employed by the same employer, each employee family member who is entitled to take up to 26 workweeks of military caregiver leave in a single 12-month period can do so independently of whether other caregivers are also taking leave to care for that same covered servicemember. As stated in § 825.124(b), “[t]he employee may need not be the only individual or family member available to care for the family member or the covered servicemember.” The Department does not believe that further clarification is necessary. Therefore, the Department adopts paragraph (d) in the Final Rule without modification.
The Department proposed to move the paragraph explaining the single 12-month period currently in paragraph (c) to paragraph (e) (the numbering of the subparagraphs did not change). No substantive changes were proposed for
this paragraph. The Department explained in the NPRM that, because the FY 2010 NDAA establishes two distinct categories of covered servicemembers (
i.e.,
a current member of the Armed Forces and a covered veteran) and because military caregiver leave is applied on a per-covered servicemember per-injury basis, an eligible employee could potentially take military caregiver leave to care for a covered servicemember who is a current member of the Armed Forces and then, at a later point when the same servicemember becomes a covered veteran, could take a subsequent period of military caregiver leave based on the same injury or illness. 77 FR 8969. The Department noted, however, that all of the normal eligibility requirements, such as the hours of service requirement, would apply in such a situation, and that an employee may not take more than a combined total of 26 workweeks of FMLA leave during a single 12-month period.
Id.
The Department sought comment on this interpretation of the single 12-month period limitation.
Two commenters addressed the Department's interpretation of the single 12-month period. Legal Aid approved of the Department's interpretation that employees may take leave for the same servicemember when he or she is a current member of the Armed Forces and again when he or she is a veteran. An individual expressed concern about this interpretation of the single 12-month period, however. She stated that, as she understood the proposed interpretation, it would permit an employee to use two consecutive periods of 26 workweeks of leave (one 26 workweek period to care for a current servicemember, another 26 workweek period to care for a veteran), resulting in 52 consecutive workweeks of leave for an employee. In response to this comment, the Department reiterates that all of the normal eligibility requirements apply. The employee in this commenter's scenario would likely not meet the hours of service requirement in the preceding 12 months if that employee had just taken 26 workweeks of leave to care for a current servicemember. Additionally, an employee may not take more than a combined 26 workweeks of FMLA leave during a single 12-month period. The Department adopts paragraph (e) in the Final Rule without modification.
4. Section 825.309 Certification Requirements for Leave Taken Because of a Qualifying Exigency
Section 825.309 sets forth the certification process and the elements of a complete certification for qualifying exigency leave. Consistent with the proposed changes in § 825.126, the Department proposed in § 825.309 to substitute covered active duty for active duty and military member or member for covered military member wherever it appears in this section. The Department proposed to delete the phrase in support of a contingency operation from current § 825.309(a) to reflect the expansion of qualifying exigency leave to family of members of the Regular Armed Forces and the fact that this requirement does not apply to members of the Regular Armed Forces. The proposal revised the regulatory language at § 825.309(a) to make it clear that new active duty orders or documentation do not automatically need to be provided if the need for leave because of a qualifying exigency arises out of a different covered active duty or call to covered active duty status of the same or a different military member; rather, in such situations, new active duty orders or documentation need only be provided upon request by the employer. As noted in the NPRM, the proposed change is consistent with the general certification process, which provides that an employer may require certification upon receiving an employee request for qualifying exigency leave. 77 FR 8970. Proposed § 825.309(a) tracked § 825.309(a) in permitting an employee to use either a copy of the military member's active duty orders or other documentation issued by the military to establish that the military member is on covered active duty or call to covered active duty status. However, the Department explained in the NPRM that it had received information from employees and employers indicating that family members have experienced difficulty obtaining copies of active duty orders or that the available documentation is insufficient to comply with current certification requirements. 77 FR 8970. The Department therefore sought comment on whether active duty orders of members of the Regular and Reserve components of the Armed Forces contain sufficient information to determine that the covered active duty involves deployment to a foreign country (and, in the case of the Reserve components, that the deployment is in support of a contingency operation), and, if not, what other documentation would meet the certification requirements. The Department also sought comment on whether employees have experienced difficulty in obtaining copies of active duty orders or other military documents establishing their family member's covered service, and whether employers have experienced difficulty in confirming covered service.
Id.
The Partnership and SHRM commented that employees have experienced difficulty obtaining copies of active duty orders, particularly when the servicemember is a member of the Regular Armed Forces. The Letter Carriers reported that a member contacted DOD on behalf of an employee and was unable to secure active duty orders, with DOD citing concern for national security. The Letter Carriers suggested that the determination of whether a military member meets the covered active duty requirement should be left up to the military. They proposed that a standardized certification form could be issued by the appropriate branch of the military or that a section indicating that the military member is on covered active duty, to be signed by the appropriate military official, could be added to the Form WH-384 (FMLA Certification of Qualifying Exigency for Military Family leave) or an equivalent form without requiring that further, sensitive information about the deployment be disclosed. Several commenters, including Senators Harkin and Murray and the North Carolina Justice Center, suggested the regulations should clarify that acceptable “other documentation” permitted under the regulation includes official military correspondence indicating a foreign deployment, such as a letter from the military member's commanding officer.
The Department considered the commenters' concerns that employees experience difficulties in obtaining the active duty orders for members of the Regular Armed Forces. Several factors weigh against adding a new section to the Form WH-384 or creating a separate certification form that a military member could present to the appropriate member of the military member's command to utilize for verification of covered active duty. Obtaining an official signature, especially if the military member is already deployed, would present logistical challenges. Electronic document transmission may not be available at remote deployment locations and postal delays could result in undue delay for the eligible employee. Additionally, the information contained on the Form WH-384 concerning the specific reason for qualifying exigency leave may be personal and raise privacy issues for the employee or the military member. The Department also considered creating an additional form, but believes doing so
could be confusing for employees and administratively burdensome for employers. However, the Department believes that official military correspondence such as a letter from a superior officer in the military member's chain of command will be sufficient to establish that the military member is on covered active duty or under a call to covered active duty and will fulfill the requirements of § 825.309(a). Therefore, the Department adopts proposed § 825.309(a) in the Final Rule without modification.
Current § 825.309(b) addresses information that may be required to support a request for qualifying exigency leave. Consistent with the proposed changes to § 825.126(b)(6),
Rest and Recuperation
qualifying exigency leave, the Department proposed a new paragraph at § 825.309(b)(6) to permit an employer to request a copy of the military member's Rest and Recuperation orders, or other documentation issued by the military indicating that the military member has been granted Rest and Recuperation leave, and the dates of the leave, in order to determine the employee's specific qualifying exigency leave period available for
Rest and Recuperation.
77 FR 8970. No other changes were proposed to § 825.309(b). SHRM endorsed the Department's proposal. Twiga suggested that the Department and the DOD should agree on a certification form that is easy for a civilian employer to use to verify that the employee's requested period of qualifying exigency leave corresponds with the military member's allotted Rest and Recuperation orders. It is the Department's understanding that the military's Rest and Recuperation orders clearly state the member's dates of leave, and will therefore be sufficient to establish that the employee's requested period of qualifying exigency leave corresponds with the military member's allotted Rest and Recuperation leave. The Department does not believe that it is necessary to create another certification form specific for
Rest and Recuperation
qualifying exigency leave. Accordingly, the Department adopts § 825.309(b)(6) as proposed.
Current § 825.309(c) identifies optional-use Form WH-384, which may be used by an employee when requesting qualifying exigency leave and states that another form containing the same basic information may be used by an employer as long as no information beyond that specified is required. The Department proposed to make minor changes to this form to reflect the FY 2010 NDAA amendments. As discussed above, the Department proposed to delete the optional-use forms from the Appendices to the regulations. Accordingly, the Department proposed to delete the reference in § 825.309(c) to Appendix G, and proposed to add language explaining that Form WH-384 may be obtained from local WHD offices or the WHD Web site. No other changes were proposed for § 825.309(c). Several comments were received concerning the removal of the forms from the Appendices. Those comments and the Department's decision to remove the forms from the Appendices in the Final Rule are discussed earlier in this preamble. No comments were received on the proposed revisions to Form WH-384. The form is modified to refer to a military member, use the term covered active duty, and contain the requirement that the member be deployed to a foreign country. The Final Rule implements § 825.309(c) as proposed.
Current § 825.309(d) indicates that where a complete and sufficient certification is submitted in support of a request for leave, an employer may not request additional information from an employee. Where the qualifying exigency involves a third party, employers may contact the individual or entity for purposes of verifying the meeting or appointment and the nature of the meeting. Employers may also contact the appropriate unit of the DOD to verify that the military member is on active duty or call to active duty status. The employee's permission is not required to conduct such verifications. The employer may not, however, request any additi
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