FMLA Rules Establish Procedures for Family Military Leave

In January, President Bush signed into law the 2008 Defense Authorization Act.  This new law included amendments to the Family and Medical Leave Act intended to expand the FMLA’s protections to include (1) leave to care for a family member injured or wounded while on active military duty; and (2) leave to deal with exigencies caused by a family member being called into active duty from the Reserves or National Guard.

On Monday, DOL issued final rules implementing both of these military family leave requirements.  In summary, the rules require the following:

1. Wounded Service Members

• The qualifying family member can take up to 26 weeks to care for a wounded family member.  The leave is limited to 26 weeks, even if it falls in different FMLA policy years.
• The rules define qualified family members.  Unlike the other companion leaves under the FMLA, this definition includes collateral relatives, such as siblings, cousins and grandparents.  The nearest available relative is qualified for leave.
• Leave can also be taken to provide psychological comfort and reassurance to a service member or their immediate family members.
• The employer can request medical certification for the leave, but cannot seek alternative opinions or require medical recertification.  DOL published a new form (WH-385) for purposes of the initial certification.  The rules also define which medical providers can deliver the certification.

2. Family Exigencies Caused by Activation

• These leave rights are limited to spouses, children or parents of the activated service member.  Leave is limited to 12 weeks, although leaves for particular qualifying exigencies are limited to shorter periods.
• The rules provide a list of qualifying exigencies:  (1) short-notice deployment; (2) military events and related activities; (3) child care and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; (7) post-deployment activities; and (8) additional activities where the employer and employee agree to the leave.
• The rules define calls to active service.  Activation of a National Guard unit by a state government will not trigger FMLA rights.
• Employers are entitled to a copy of the family member’s military orders.  DOL published a new certification form for military exigency leave (WH-384).

The new rules take effect on January 16, 2009.  However, the law already requires employers to provide wounded family member FMLA leave, even though the regulations themselves are not effective until that date.