Amendments to FMLA Mean Changes to Military Leave Provisions, Forms and Postings

On February 6, 2013, the United States Department of Labor (DOL) published final regulations that amend the Family and Medical Leave Act’s (“FMLA”) military leave provisions and eligibility requirements for pilots and flight crews. Other changes impacting the minimum increments of time allowable for measuring FMLA leave and recordkeeping requirements are also part of the final regulations. The new regulations take effect on March 8, 2013, giving employers only a few weeks to ensure that their policies and forms are updated.

Key Changes

Among the critical changes found in the new FMLA regulations are:

Qualifying Exigency Leave

  • Extending qualifying exigency leave to eligible employees who are family members or next of kin to those serving in the Regular Armed Forces – not just the Reserves or National Guard – but, requiring foreign deployment of that military member.
  • Permitting an eligible employee to take leave to care for a covered military member’s parent who is incapable of self-care when that care is necessitated by the servicemember’s covered active duty.
  • Increasing, from five to fifteen days, the amount of time an eligible employee may take qualifying exigency leave related to a military member’s rest and recuperation.

Military Caregiver Leave

  • Expanding the definition of “covered servicemember” to include covered veterans who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness.
  • Providing alternative definitions for “serious injury or illness” of a covered veteran, only one of which must be met.
  • Expanding the definition of “serious injury or illness” for a current servicemember to include preexisting conditions that are aggravated during active duty.
  • Permitting Military Caregiver Leave Certifications to be completed by any health care provider, as defined in §825.125 of the FMLA regulations, and authorizing employers to require a second or third opinion in these circumstances (which is not permitted when the certification is provided by the DOD, VA, or TRICARE networks).

Airline Flight Crews 

  • Establishing special rules for calculating the hours of service required for FMLA eligibility for airline flight crew employees.
  • Creating a special rule for calculating leave time for airline flight crew employees and requiring that intermittent and reduced schedule leave be accounted for in increments of no greater than one day.

The DOL has released a helpful side-by-side comparison of the pre-existing regulations and the amended regulations.

New Forms and Postings

In light of the amendments, the DOL has updated the required posting that employers must display in the workplace. In addition, several of the FMLA forms made available on the DOL’s website have been revised, including the Notice of Eligibility and Rights and Responsibilities (Form WH-381), the Certification of Qualifying Exigency for Military Family Leave (Form WH-384), the Certification of Serious Injury or Illness of a Current Servicemember – for Military Family Leave (Form WH-385) and Certification of Serious Injury or Illness of a Veteran for Military Caregiver Leave (Form WH-385V). However, the revised forms published by the DOL still do not include the Genetic Information Nondiscrimination Act (GINA) safe harbor language. Employers are encouraged to include this language in those FMLA forms that solicit medical information.


Employers should update their workplace postings and forms in order to be in compliance on March 8, 2013. In addition, employers should review their handbooks and policies to ensure that their FMLA policies are updated to comply with the latest changes. For answers to questions regarding the new FMLA regulations or for assistance with compliance, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.

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