In 2009, Congress twice amended the Family and Military Leave Act to expand leave rights originally granted to military caregivers the previous year. Last week, the Department of Labor issued proposed rules covering these expanded rights. The first change broadened military caregiver rights from Reservists and National Guard members to also include families of regular service members. The same leave rights granted in 2008 would apply to all military caregivers, but for regular armed forces, only in situations where the service member is deployed to a foreign country or international waters.

The proposed rules expand rest and recuperation leave for caregivers from five to fifteen days. They also make clear that leave rights to deal with childcare issues apply to grandparents and other family members with responsibilities for children other than their own.

The second 2009 statutory amendment extends certain FMLA caregiver rights to families of military veterans. If the veteran was seriously injured or ill as a result of service, or had a prior injury or illness exacerbated as a result of service, caregiver FMLA rights extend up to five years after the service member leaves the military. The proposed DOL rules also define serious injuries for the purposes of veterans FMLA leave rights. These definitions are tied to Veterans Administration disability ratings, but also apply to general restrictions on the veteran's ability to work even in the absence of a VA rating.

In addition, the new DOL rules contain provisions enacting technical changes in FMLA eligibility calculations for airline flight crew members. They also make minor changes to calculations of intermittent FMLA leave, and clarify the limited circumstances under which an employer may delay mid-shift reinstatement of employees on intermittent leaves.

DOL will accept comments on the proposed rules for 60 days following publication in the Federal Register. They will be finalized later in 2012. The proposed rules can be found here. Once the rules are finalized, employers will need to amend their FMLA policies in conformance.