UPDATED FMLA ADDS MILITARY COMPONENT

New rules include up to 26 weeks of leave for employees to care for family members seriously hurt in military action

(Article originally published in NH Business Review, May 22, 2009 - http://www.nhbr.com/apps/pbcs.dll/article?AID=/20090522/INDUSTRY04/905209913)

Q. We are a large employer (over 50 employees). One of our employees recently returned from 12 weeks of maternity leave. Now she is requesting to take leave to care for her brother, a soldier, who is back in the U.S. after serving in Iraq. She says he is paralyzed after his truck hit a roadside bomb. Is she entitled to additional leave time?

A. There are changes to the regulations that implement the Family and Medical Leave Act FMLA as of Jan. 16, 2009.

While the rules contain numerous changes, some of the more significant ones affect military family leave and the required notices under the FMLA in general.

Last year, the FMLA was amended to include two new types of leave: up to 26 weeks of leave for employees to care for covered family members who had become seriously injured or ill in military action; and up to 12 weeks of leave due to a qualifying exigency when a covered family member was called to active military duty.

The new regulations define a qualifying exigency as a non-medical activity that is directly related to the covered military member's active duty or call to active-duty status. Such activities may include, without limitation: certain short-notice deployments; temporary child-care arrangements (but not ongoing child care); and other activities mutually agreed to by the employer and employee.

The 26 weeks of caregiver leave must be taken during a single 12-month period on a per-covered service member, per-injury basis. The leave can be continuous, intermittent or on a reduced schedule basis.

The single 12-month period is measured forward from the date an employee's caregiver leave begins. Therefore, even if an employee has just exhausted 12 weeks of FMLA leave for another reason, such as maternity, she may still be eligible for an additional 26 weeks of leave to care for a covered service member.

In order to be eligible, the employee must be the service member's spouse, child, parent or next of kin(which applies only to caregiver leave). A next of kinis newly defined as the nearest blood relative, other than the spouse, child or parent. This can include a sibling, grandparent, aunt, uncle or first cousin (in that order of priority), unless the service member has designated in writing another relative as his/her nearest blood relative.

Therefore, if the employee mentioned above is the nearest blood relative to her brother, other than his spouse, child or parent, and he has not designated another relative, then she is eligible to take caregiver leave.

Notices and certifications

The revised regulations are intended to increase the communication between employers and employees regarding their respective rights and responsibilities under the FMLA.

For example, the employer can require that employees provide adequate information and certifications justifying the need for the leave. However, the employer likewise must provide certain notices to eligible employees.

In order to assist employers with such notices and certifications, the Labor Department has developed seven model forms that employers may or may not choose to use. If they do not use the new forms, they still must use notices and documents that include the information found on these forms.

The seven new forms include: a general notice workplace poster; three different certifications for serious health condition (of the employee, a family member, or military member, whichever is appropriate); notice of FMLA eligibility, rights and responsibilities (which notice employers must give to employees when they request leave); a designation notice (on which the employer can tell the employee whether the leave actually is designated as FMLA leave or not); and a certification of qualifying exigency.

In response to the leave request by the employee whose brother was injured in Iraq, the employer should provide her with a completed notice of FMLA eligibility, rights and responsibilities. She also should be given a certification form for serious health condition of a covered service member, with instructions to fill it out and have her brother's military health-care provider complete it and return it to the employer.

Once the employer has all of the pertinent information, it should fill out and give to the employee a FMLA designation notice and monitor the employee's use of caregiver leave.

The new regulations and model forms can be found at dol.gov/esa/whd/fmla. Employers should familiarize themselves with the new rules and review their FMLA policies, procedures, and documentation to ensure they are in compliance with the changes in the law.

Whether the changes will improve what is already a very complex law to administer remains to be seen.