UNEMPLOYMENT
INSURANCE / SOCIAL SECURITY
Family and Medical Leave Act, Military Family Leave Final Regulations 
Get important background information concerning the FMLA rule changes, along with succinct explanations of the new rules and how they have changed from prior regulations.
The first revision to the Family and Medical Leave Act’s (FMLA) regulations since its enactment in 1993 law was published by the Department of Labor’s (DOL) Wage and Hour Division in the Federal Register on November 17, 2008. The FMLA allows eligible employees a total of 12 weeks of job protected unpaid leave during the year to care for a newborn or sick child, spouse or parent, or to recover from their own serious health conditions. In addition to addressing issues related to the definition for “continuing treatment” of a serious health condition, notice requirements and medical certification, among others, the final regulations also implement the new military leave provisions signed into law by President George W. Bush last January.
“This final rule, for the first time, gives America’s military families special job-protected leave rights to care for brave service men and women who are wounded or injured, and also helps families of members of the National Guard and Reserves manage their affairs when their service member is called up for active duty,” said Secretary of Labor Elaine L. Chao. “At the same time, the final rule provides needed clarity about general FMLA rights and obligations for both workers and employers.”
The National Defense Authorization Act for Fiscal Year 2008 (Public Law 110-181), signed into law by the President, included provisions amending the FMLA to allow the “spouse, son, daughter, parent, or next of kin” of injured military personnel to take up to 26 weeks of leave during a 12-month period to care for a “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status…on the temporary disability retired list, for a serious injury or illness.” That part of the expansion to the FMLA, the military caregiver leave provision, took effect upon the President’s signing.
The other leave entitlement, the qualifying exigency leave provision, requires employers to provide 12 weeks of FMLA leave to the spouse, son, daughter or parent of a servicemember who is on active duty (or has been notified of a pending call or order to return to active duty). It will not take effect until the final regulations take effect. The expansion required the Secretary of Labor to define “any qualifying exigency” through regulation. The final rule defines “qualifying exigencies” as: (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 where the employer and employee agree to the leave.
According to the preamble to the final rule, the DOL has incorporated, wherever feasible, the new military family leave entitlements into the FMLA regulations, stating that the procedures used when taking military family leave should be the same as those used for other types of FMLA leave whenever possible. There will be exceptions, particularly as to the certification and notice provisions, but the DOL believes that “completely separating the military family leave provisions from the provisions governing the taking of other types of FMLA leave would create unnecessary confusion and complexity for employees and employers.”
Beside military leave, on “serious health conditions,” the final rule clarifies that if an employee is taking leave involving more than three consecutive calendar days of incapacity plus two visits to a health care provider, the two visits must occur within 30 days of the period of incapacity. It also defines “periodic visits to a health care provider” for chronic serious health conditions as at least two visits to a health care provider per year. The final rule consolidates all employer notice requirements into a “one-stop” section of the regulations to clear up some conflicting provisions and time periods. Regarding medical certifications, the final rule adds a requirement that limits who may contact the health care provider by banning an employee’s direct supervisor from making the contact. The final rule can be found at: http://federalregister.gov/OFRUpload/OFRData/2008-26577_PI.pdf.
For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.
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