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Labor Department’s proposed FMLA rules tackle military family leave

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in FMLA Guidelines,Human Resources

The Labor Department’s new proposed FMLA rules address a new kind of FMLA leave—designed to assist family members of active-duty military personnel.

When Congress passed the National Defense Authorization Act in January, it left it up to the Labor Department to write the rules for implementing military family leave.

The law provides two new leave entitlements:

  1. Eligible employees can take up to 26 workweeks of unpaid FMLA leave to care for a covered service member with a serious illness or injury.
  2. They can take 12 weeks of unpaid FMLA leave because of any “qualifying exigency” arising out of the fact that a covered family member is on active duty or called to active-duty status.

A preliminary reading of the Labor Department’s proposed rules suggests that the first leave category—leave to care for an ill or injured service member—will be relatively straightforward. There are a few definitions to nail down, and in many cases, Labor says it will rely on advice from the U.S. Defense Department and the Veterans Affairs Department.

But leave for family members of service men and women called to active duty is an issue worth watching. It potentially applies to many more employees than leave provisions to care for sick or injured troops. And how Labor defines a “qualifying exigency” will be critical to employers.

The Labor Department’s proposal appears to give great weight to what Congress intended when it passed the law. Sponsors in the House and Senate cited a long list of reasons why a family member might need leave when a loved one is called to active duty, including:

  • Making alternative child care arrangements
  • Meeting with a financial advisor to recalibrate the family budget or investment plan
  • Meeting with a lawyer to redraft a will
  • Attending counseling sessions
  • Traveling to military send-offs or welcome-home ceremonies
  • Dealing with military paperwork
  • Attending to funeral and estate matters should the service member die while on active duty.

The Labor Department’s “initial view is that leave for qualifying exigencies should be limited to non-medical” matters, the proposal states, as the FMLA would already apply in medical cases.

Other open questions involve when an employee could begin taking FMLA leave and the kind of certification required to prove eligibility.

The Labor Department has prepared a supplemental poster that it says satisfies the law's notice requirements. Download a free copy here.

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