Continuing my series of posts on the new FMLA regulations (parts one and two can be found here), today I’ll address a big chunk courtesy morgue file "files"of what the new regulations cover – Military Family Leave.   

You may recall from a post earlier this year that Congress passed a new law that extended FMLA leave to military families in certain situations.  The new regulations (effective January 16, 2009) essentially implement the law in this area and give employers (and employees) some greater clarity about what is and is not allowed.

The Ohio Employer’s Blog has done a good job already of summarizing the provisions here. Many of the provisions just expand upon the law in some more detail, but a few areas are worth noting:

  • One provision of the new rule expands the normal 12 weeks of FMLA leave to eligible employees with a covered military member serving in the National Guard or Reserves to use for “any qualifying exigency” that arises because the military member is on active duty or is called to active duty to support an military operation. 

So what is a "Qualifying Exigency"? The DOL defined this term to include the following 8 situations: (1) short-notice deployment, (2) military events and related activities, (3) childcare and school activities, (4) financial and legal arrangements, (5) counseling, (6) rest and recuperation, (7) post-deployment activities, and (8) additional activities to address other events which arise out of the covered military member’s active duty or call to active duty status, provided the employer and employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave.

  • Another provision of the statue allows for a Military Caregiver Leave where eligible employees who are family members of certain servicemembers will be able to take 26 weeks of protected leave in a "single 12-month period" to care for a servicemember with a serious illness or injury.

So what is a "single 12-month period"?  The new regulations state that a "single 12-month period" is a period that commences on the date an employee first takes leave to care for a covered servicemember with a serious injury or illness.

  • Additionally, the scope of individuals who are eligible for this caregiver leave is expanded beyond the traditional FMLA leave rules.  The new regulations use a "next of kin" definition to permit covered servicemembers specifically to designate in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under the FMLA. If there isn’t any designation made, a class of individuals may qualify for such leave. Employers and employees should read the regulations carefully on this issue to address a particular situation. 
  • The new regulations follow a philosophy that the medical certifications necessary for this type of leave are different than those who are caring for family member with serious health conditions.  Thus, the new rule sets forth separate certification requirements for military caregiver leave. The DOL also created a new optional WH385 Form for use in obtaining medical certifications of Military Caregiver Leave.

Employers with employees who have family members serving in active duty should pay particular attention to these rules because they set up a different structure than is typically found with traditional FMLA leave.

Lastly, for employers in Connecticut, you should be aware that Connecticut’s FMLA rules have not yet changed.  Thus, each rule acts as a "floor" to provide employees with the maximum leave available under either law.  Hopefully, the Connecticut DOL will come out with some guidance soon to help clarify the continuing differences between state and federal law.  (A prior analysis by the CT DOL comparing and contrasting the FMLA with CTFMLA is available here.)