The last few years have brought many changes to the Family and Medical Leave Act (FMLA). New regulations were published by the U.S. Department of Labor (DOL) in November 2008. which provided much-needed clarifications and guidance for human resources professionals and employers who want to make sure they’re following the law while maintaining workplace productivity and efficiency.

Included in the new FMLA regulations were brand new final rules that flesh out the workings of the January 2008 military family leave statute, passed as part of the National Defense Authorization Act.

That legislation created two new FMLA benefit entitlements: 1) qualifying exigency leave under which eligible employees may take up to 12 weeks of FMLA leave for reasons related to the call to active duty of covered servicemember spouses, children, or parents; and 2) military caregiver leave, which gives employees up to 26 weeks of leave in a single 12-month period to care for a seriously injured or ill covered servicemember.

Most recently, in October 2009, Congress enacted additional changes to the military caregiver leave provisions. In general, they expand the circumstances under which employees may take both qualifying exigency and military caregiver leave.

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Qualifying exigency leave
Although, the FMLA regulations stated that qualifying exigency leave applied only to families of National Guard members and Reservists that was changed by Congress effective October 27, 2009.. Families of servicemembers on active duty in the regular armed services are now eligible for this type of leave if the servicemember is deployed on active duty in a foreign country.

Qualifying exigency FMLA leave must fit into the following categories:

• When the servicemember has received a week or less in notice of deployment;
• For military events and related activities;
• For urgent (as opposed to recurring and routine) child-care and school activities;
• For financial and legal tasks to deal with a family member’s active duty;
• For counseling for the employee or child who isn’t already covered by FMLA;
• To spend time with the covered servicemember on rest and recuperation breaks during deployment;
• For post-deployment activities; and
• For other purposes arising out of the call to duty, as agreed upon by the employee and employer.

Employees seeking qualifying exigency leave must give reasonable and practicable notice if the exigency is foreseeable. The notice must inform the employer that a family member is on active duty or called to active duty status, cite a listed reason for leave, and give the anticipated length of absence. Family members generally are defined broadly. A son or daughter on active duty, for example, includes an employee’s biological, adopted, or foster child, stepchild, legal ward, or one for whom the employee stood in loco parentis, regardless of age.

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Certifying qualified exigency leave
Employers may require certification for qualified exigency leave by requiring the employee to provide a copy of the servicemember’s active duty orders, for example. There’s an optional form, WH-384, for qualifying exigency certification. The regulations also allow employers to verify with a third party that an employee met with the third party (a teacher, for example) during the leave. If the employee submits a complete, sufficient certification supporting a request for the leave, the employer may not request additional information from the employee. Recertification isn’t permitted.

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Military caregiver leave
Under the FMLA’s military caregiver leave provisions, an eligible employee may take up to 26 workweeks of leave during a single 12-month period to care for a covered servicemember. The employee may be a spouse, parent, child, or next of kin of a service member, who can be in the regular armed forces, Reserves, Guard, or anyone in those categories on a temporary disability retired list (TDRL). Effective October 27, 2009, employees may also take military caregiver leave to care for family members who sustained a qualifying injury for up to five years after they have been discharged from military service.

The service member must have a serious illness or injury incurred in the line of duty on active duty, as determined by the Department of Defense (DOD), that may render him medically unfit to perform the duties of his office, grade, rank, or rating and for which he is undergoing medical treatment, recuperation, therapy, or outpatient treatment or is on TDRL.

Employers may require certification of the need for caregiver leave from specific military health care providers. The DOL offers an optional form, WH-385, for certifying military caregiver leave. An employer must accept “invitational travel orders” (ITOs) or “invitational travel authorizations” (ITAs) issued by the DOD to family members for medical purposes as sufficient certification of the need for military caregiver leave, at least until the expiration date of the order or authorization. The government issues ITOs and ITAs so that one to three family members can immediately travel, at government expense, to the bedside of an injured servicemember, and they’re not issued routinely, so the DOL believes they’re sufficient certification. Employers may seek authentication and clarification of military caregiver certifications but may not seek second or third opinions or recertification.

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As in the case of defining a son or daughter, “parent” is defined broadly but does not include in-laws. “Next of kin” also is defined as categories of blood relatives, in order of priority, but the service member may make a written designation of a specific blood relative as next of kin, and that will control. Employers can ask employees for reasonable documentation of family relationships; a simple statement will suffice.

There’s a separate “FMLA year” for military caregiver purposes, beginning with the first date of caregiver leave and ending 12 months later. The 26 weeks of caregiver leave may be taken in a single block or intermittently. The military caregiver entitlement is determined per servicemember, and per injury. For example, Employee Evelyn may take 26 weeks of military caregiver leave for her spouse’s qualifying leg injury in year 1, and take additional military caregiver leave in year 2 for her daughter’s qualifying injury or for her spouse’s second, unrelated illness or injury. The 26-week entitlement may not be carried over from year to year. The comments to the final FMLA regulations contained examples of the detailed working of military caregiver leave in relation to regular FMLA leave, which is measured according to a calendar of the employer’s choosing.

Employees seeking caregiver leave must follow existing FMLA notice rules, including the requirement to work with employers to schedule leave without unduly disrupting operations. (This requirement doesn’t apply to qualifying exigency leave.)