FMLA Amendments Add Military Family Leave

The Department of Labor has issued revised regulations for the Family and Medical Leave Act that will take effect January 16, 2009. Among the changes are regulations to implement statutory amendments signed into law by President Bush in January 2008 allowing new leave entitlements for family members of military personnel.

    The FMLA now permits family members of wounded military personnel to take up to six months of unpaid leave to care for them during their rehabilitation in a single 12-month period. It also entitles family members to take time off to manage short-notice deployment, military events and related activities, child care and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities and any additional activities agreed to by the employer and employee.

    Also, obtaining medical certification regarding a “serious health condition” has been extended to allow employer representatives to contact the employee’s health care provider for this certification. However, if the certification is incomplete, the employer must notify the employee in writing and give the employee seven calendar days to provide the employer with this information. The employer may also require employees to provide a new certification every 12-month FMLA period if a condition lasts longer than one year, or to require recertification of an ongoing condition every six months.

   In addition, the new rules also require employers to provide employees with a general notice about the FMLA, an eligibility notice, a notice of rights and responsibilities, and a designation notice. The time period for various notices has been extended from two business days to five. Additionally, it allows employers to require employees to exhaust paid leave before taking unpaid leave. The new rules treat vacation and personal and sick leave the same way. 29 CFR, Part 825.

    Impact: Employers are advised to consult the new regulations’ entitlements and notice requirements. An employer may now be liable when it fails to follow the notification rules and the employee is caused harm as a result of this failure.