On November 17, 2008, the U.S. Department of Labor (DOL), Wage and Hour Division issued
final regulations governing the Family and Medical Leave Act (FMLA) which goes into effect on
January 16, 2009.

The FMLA rules were amended to allow qualified employees with family members in the military to take leave.

Leave for a Qualifying Exigency
An eligible employee is entitled to take up to 12 weeks of FMLA leave in a 12-month period “because of any qualifying exigency arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the armed forces in support of a contingency operation.”

Definition of Exigency
The final regulation identifies eight different circumstances that will qualify as an “exigency”:

• Short-term notice deployment , when a covered military member is notified of an impending call to duty seven or fewer calendar days prior to the date of deployment. In such circumstances, an employee is entitled to up to seven days of leave for this purpose beginning on the date a covered military member is notified.
• Military events and related activities , including official ceremonies, programs or events sponsored by the military related and family support or assistance programs sponsored or promoted by the military, military service organizations, or the American Red Cross.
• Childcare and school activities , including the arrangement of alternative childcare, to enroll in or transfer to a new school or daycare and attendance at school meetings regarding disciplinary measures, parent-teacher conferences or meetings with school counselors.
• Financial and legal arrangements , to make or update legal arrangements for the covered military member or act as his or her representative before a government agency, such as preparing and executing financial and healthcare power of attorney, transferring bank accounts and preparing or updating a will or living trust.
• Counseling , for oneself, for the covered military member, or for a child of the covered military member, provided that the need for counseling arises from the active duty or call to active duty.
• Rest and recuperation , to spend time with a covered military member who is on short-term leave during the period of deployment. Eligible employees may take up to five days for each leave.
• Post-deployment activities , for up to 90 days after termination of active duty, including arrival ceremonies and funeral arrangements of the covered military member.
• Additional activities , provided that the employer and employee agree that such activities shall qualify as an exigency and agree to both the timing and duration of such leave.

Certification Requirement
The first time that an employee requests FMLA exigency leave, an employer may require that the employee provide a copy of the family member’s active duty orders or other reasonable documentation. However, an employer may only request this information once per family member. DOL’s Certification of Qualifying Exigency for Family Military Leave (Form WH-384) contains all of the permissible inquiries and information required for employers to make a FMLA eligibility determination for qualifying exigencies. CLICK HERE for a copy of the form.

Notice and Other Requirements
The standard FMLA notices apply to covered service member leave. Employees may take this leave on an intermittent or reduced schedule basis. Other FMLA regulatory requirements generally apply, including the eligibility requirements and the substitution of paid leaves.

Leave to Care for Covered Service member
The final rule also provides clarity as to when an employee can take leave to care for a family member who became ill or injured as a result of service in the military. Under this form of leave, an employee who is the spouse, son, daughter, parent, or next of kin of a covered service member is entitled to up to 26 weeks of unpaid leave in a single 12-month period to care for that service member

Covered Family Members
The final rule defines “son or daughter” as biological, adopted, foster child, and step child including adult children for purposes of the covered service member leave entitlement. Also, the rule defines “next of kin” as the nearest blood relative, other than the covered service member’s spouse, parent, son, or daughter, in the following order of priority:

• Blood relatives who have been granted legal custody of the service member by court decree
• Brothers and sisters
• Grandparents
• Aunts and uncles
• First cousins

If the covered service member has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under the FMLA, that family member will be deemed next of kin. An employer is entitled to require an employee to provide reasonable documentation of the family relationship.

Tracking the 26 Weeks of Leave
The regulation explains that the 12-month period to be used for purposes of tracking this leave entitlement begins when the employee starts using his or her leave. Therefore, the 12-month period utilized for tracking other forms of FMLA leave may not be utilized for purposes of tracking this entitlement. An employee is not entitled to more than 26 weeks of FMLA leave during the 12-month period that commences with the need for leave. Therefore, an employee is not entitled to 26 weeks of leave to care for a family member under this provision, plus an additional 12 weeks of leave for other FMLA-qualifying reasons. The regulations make clear that an employee may utilize the 26-week entitlement for each service member and for each illness or injury incurred.

Certification Requirements
The final rule contains certification forms for this leave entitlement, and provides that a certification can be requested from an “authorized healthcare provider.” The rule provides that Department of Defense (DOD) healthcare providers, a healthcare provider from the U.S. Department of Veterans Affairs (VA), and DOD TRICARE network and non-network authorized healthcare providers are considered “authorized” healthcare providers for this purpose. DOL’s Certification for Serious Injury/Illness of Service Men (Form WH-385) contains all of the permissible inquiries and information required for employers to make a FMLA eligibility determination for the leave. CLICK HERE for a copy.

WHAT SHOULD I DO NEXT?
For further information as well as a copy of the complete final regulation, please use the below link for the DOL’s website: http://www.dol.gov/esa/whd/fmla/finalrule.htm If you have any additional questions regarding the information within this eCommunication, please call Corporate Synergies at 1.866.CSG.1719 or click here to contact us today.