Legal View: New FMLA developments keep employers on their toes

Scott Randolph, The Daily Record Newswire

Employers who think they have a handle on administering the Family and Medical Leave Act may need to take another look. In the last six months, new regulations and a significant U.S. Supreme Court decision have changed the FMLA landscape for covered employers. If you haven’t kept up, your FMLA policy and practices may be out of compliance.

What changed with the 2013 FMLA regulations?

On March 8 changes to the FMLA military leave provisions, as well as clarifications to the existing FMLA regulations, went into effect. Highlights of significant changes include the following:
Military caregiver leave expanded to include care for covered veterans: The new regulations expand military caregiver leave. A covered service member now includes veterans who are undergoing medical treatment, recuperation or therapy for a serious injury or illness.

Serious injury or illness of military members and veterans broadly defined: The new regulations expand the definition of serious injury or illness incurred by a current service member to include injuries or illnesses that existed prior to the member’s active duty but were aggravated in the line of active duty.

Qualifying exigency leave broadened: The 2013 regulations expand exigency leave to include members of the Regular Armed Forces, rather than being limited to family members of National Guard and Reserve military members. Active duty now requires deployment to a foreign country. A new qualifying exigency leave category was added for parental leave so that eligible employees may take leave to care for a military member’s parent who is incapable of self-care when necessitated by the service member’s covered active duty. Finally, exigency leave to spend time with a military member on Rest and Recuperation is expanded from five to 15 days.

Existing FMLA requirements clarified: The 2013 regulations clarify how employers must comply with certain existing FMLA requirements including: intermittent or reduced-schedule FMLA leave must be tracked using the smallest increment of time used for tracking other types of leave, provided that it is not greater than one hour; an employer may not require the employee to take more leave than necessary to address the FMLA issue; if FMLA documents contain family information, employers must keep such information confidential pursuant to the Genetic Information Nondisclosure Act; and any absence from work due to military service covered under the Uniformed Services Employment and Reemployment Rights Act must be counted toward the employee’s 12-month employment period when determining FMLA eligibility.

New FMLA forms and posters: As a result of the 2013 regulations, the DOL updated four of its optional-use certification forms and the mandated FMLA poster.

Supreme Court’s DOMA decision means FMLA spousal leave applies to legally married same-sex couples

In late June, the U.S. Supreme Court struck down certain provisions of the Defense of Marriage Act, ruling that its definition of “spouse” as a husband or wife of the opposite sex for purposes of federal laws and regulations was unconstitutional. The decision affords federal rights and benefits, including FMLA spousal leave benefits, equally to any marriage recognized by the state. This means that in those states where same-sex marriages are legal or recognized, same-sex couples are entitled to the same spousal leave benefits under the FMLA as are provided to heterosexual couples.

Under the FMLA regulations, “spouse” is defined as a husband or wife as recognized by the state where the employee resides. Consequently, employers must extend FMLA spousal leave benefits to same-sex spouses if the eligible employee lives in a state that recognizes same-sex marriages, even if the employer is based in or the employee works in a state that does not.

To ensure compliance with the new 2013 FMLA regulations and the Supreme Court’s DOMA decision, covered employers need to update their written FMLA policy in their employee handbook (and wherever else published) to reflect the latest changes. In addition, employers need to post the 2013 FMLA poster and update their certification forms. Finally, employers should train on the latest developments.


Scott Randolph is a partner in the labor & employment practice of Holland & Hart. He represents clients facing complex business disputes and employment litigation, including matters involving commercial contracts, licensing agreements, trade secrets, non-compete agreements, disability discrimination, sexual harassment, and wage and hour issues. He can be reached at 208-383-3988 or