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Changes to FMLA Leave for Military Families

Changes to FMLA Leave for Military Families. HOG WILD 2013 Presenter: Alberto J. Peña (210) 227-3243 albert.pena@rampage-sa.com June 28, 2013. Recent Amendments. National Defense Authorization Act for FY 2010, P.L. 111-84.

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Changes to FMLA Leave for Military Families

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  1. Changes to FMLALeave for Military Families HOG WILD 2013 Presenter: Alberto J. Peña (210) 227-3243 albert.pena@rampage-sa.com June 28, 2013

  2. Recent Amendments • National Defense Authorization Act for FY 2010, P.L. 111-84. • Section 565. Family and Medical Leave for Families of Servicemembers. • February 6, 2013 - DOL issues FINAL REGS. 78 Fed. Reg. 8834 (Effective March 8, 2013).

  3. 2010 NDAA Amendments • Expands Availability of Leave • Expands military caregiver leave to eligible employees whose family members are recent veterans with serious injuries or illnesses including conditions that do not arise until after the veteran has left the military. • Expands qualifying exigency leave to eligible employees with family members serving in the regular Armed Forces in addition to National Guard and Reserves.

  4. Amended Definitions • “Covered Servicemember” changed to include Covered Veteran (includes National Guard member or Reserves) 29 U.S.C. § 2611(15)(B). • “Covered Veteran” is an individual released under conditions other than dishonorable at any time during the 5 year period prior to the first date the eligible employee takes FMLA leave to care for the Covered Veteran. See §825.127 (b)(2)( excludes 10/28/2009 -3/8/2013 period). • “Covered Active Duty” requires deployment to a foreign country • ”Serious injury or illness” for current Servicemembers is expanded to include injuries or illnesses that existed prior to the servicemembers active duty but was aggravated in the line of duty while on active duty. 29 U.S.C. § 2611(18).

  5. Covered Employers • Eligible employees. • Employed 1 year + worked 1,250 hrs; includes USERRA absence of employer. • Private Employers with 50 employees on payroll for 20 workweeks in current or previous calendar year § 825.105(e). • Any Public Agency (203(x)) including any political subdivision of a state with 50 employees at worksite or within 75 miles § 825.108(d).

  6. Military Caregiver Leave • Provides leave for care of covered servicemember by employee who is the servicemember's: • Spouse, Son, Daughter, Parent or Next of Kin. • Total leave of up to 26 work weeks. • Available during a single 12 month period. • Combines or includes any other medical leave with the Servicemember’s Family Leave in the 26 work week period 29 U.S.C. §2612 (a) 3 & 4.

  7. Serious Illness or Injury • For Current Servicemember. • Incurred in line of duty on active duty. • Expanded to include injury or illness that: • Existed before the beginning of the member’s active duty; • Was aggravated by service in line of duty on active duty in Armed Forces; AND • May render the member medically unfit to perform the duties of his rank.

  8. Veteran’s Serious Illness or Injury • For Covered Veterans • Illness or Injury incurred in line of duty on active duty in the Armed Forces; OR • Existed before the beginning of active duty and was aggravated by service in the line of duty on active duty in the Armed Forces, and • Manifested itself before or after the member became a Veteran and is one of the following:

  9. Veteran’s Serious Illness or Injury cont. • Continuation of a serious illness incurred or aggravated while Armed Forces Member and rendered servicemember unable to perform duties of his rank. • Physical or mental condition with Service-Related Disability Rating of 50% or more based on condition requiring leave. • Physical or mental condition that substantially impairs the Veteran’s ability to secure substantially gainful occupation by reason of a military disability or would so absent treatment. • An injury for which Veteran is enrolled in Department of Veteran Affairs Program of Comprehensive Assistance for Family Caregivers.

  10. Veterans Serious Illness or Injury cont. • Documentation of serious injury or illness of covered Veteran may include proof of enrollment in the Veteran Affairs Program of Comprehensive Assistance for Family Caregivers. • A new separate Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave Form WH-385-V.

  11. New Poster Form WH-385-V

  12. Certification of Caregiver Leave • Expands healthcare providers authorized to provide certification to include healthcare providers not affiliated with DOD, VA, or TRICARE. • Can require second and third opinions where certification is provided by non-affiliated healthcare provider but no recertification is permitted.

  13. Qualifying Exigencies Leave29 CFR §825.126 • Qualifying exigency leave. • Expanded to members of regular Armed Forces on deployment to foreign country (including international waters). • Qualifying exigencies includes: • Short–notice deployment. • Military events and related activities. • Child care and school activities. • Make financial and legal arrangements.

  14. Qualifying Exigencies Leave cont.29 CFR §825.126 Qualifying exigencies also includes: Attend counseling where need arises from military duty. Rest and recuperation time with service-member expanded from 5 to 15 days. Post deployment activities (90 days) Agreed additional activities. Adds new parental care provision.

  15. Parental Care Qualifying Exigency29 CFR §825.126 (b)(8) • Leave may be used by employee for military member’s parent incapable of self-care to: • Arrange for change of care necessitated by active duty. • Provide care for a parent on urgent immediate need basis. • Admit or transfer a parent to a care facility. • Attend meetings with care facility staff.

  16. Parent Incapable of Self-Care • Parent must require active assistance or supervision to provide daily self-care. • In 3 or more daily living activities (grooming and hygiene, bathing, dressing, eating); OR • For Instrumental activities of daily living (cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using phone and directories, using post office, etc.)

  17. NEW POSTER WHD Publication 1420

  18. Recent Court Decisions • Violation of notice of absence policy is legitimate reason for discharge. Twigg v. Howler Beechcraft Corp (10th Cir, 2011) (retaliation claim dismissed because no motivation to retaliate for using FMLA leave was shown and interference claim dismissed because violation of notification policy is legitimate even for absences protected by FMLA.)

  19. Recent Court Decisions cont. • FMLA does not provide protection for employee not able to return to work after FMLA leave exhausted. Hearst v. Progressive Foam Tech., Inc. (8th Cir. 2011) (employee fired for job abandonment failed to establish interference claim where it was undisputed he was not able to return to work at end of FMLA leave even where calculation of leave was disputed because no prejudice resulted from either calculation of when leave was exhausted).

  20. Recent Court Decisions cont. • Employee not yet eligible for FMLA leave are protected from interference and retaliation claims for making pre-eligibility requests for post eligible leave. Pereda v. Brookdale Senior Living Community (11th Cir. 2012) Terminated employee’s advance request for maternity leave was “protected activity” sufficient to support retaliation claim although fired before eligible.

  21. Recent Court Decisions cont. • Supervisor may be individually liable for FMLA violation as an “employer” who “acts directly or indirectly in the interest of an employer to any of the employees of such employer.” Modica v. Taylor, (5th Cir. 2006)(Agency director sued after Cosmetology Inspector employee fired after extended medical leave). Haybarger v. Lawrence Co. Adult Probation and Parole, (3rd Cir. 2012).

  22. New ADAAA Guidance • EEOC released four informal guidances (May 15, 2013) highlighting reasonable accommodations for persons with the following: • Cancer • Diabetes • Epilepsy • Intellectual Disabilities See: www1.eeoc.gov//laws/types/diabetes.cfm

  23. Sources • U.S. Code Title 29, Chapter 28 Subchapter I (29 U.S.C. §2611 et. seq.) • DOL Wage & Hour Website • http://www.wagehour.dol.gov • www.dol.gov/whd • Federal Register Vol. 78, No. 25 pgs 8834-8947 (29 C.F.R. Part 825)

  24. Questions? Alberto J. Peña (210) 227-3243 albert.pena@rampage-sa.com Denton, Navarro, Rocha & Bernal, P.C.

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