Family Military Leave: Add and Revise Policy Provisions

The National Defense Authorization Act for Fiscal Year 2008 (NDAA) amended FMLA to allow qualified employees with family members in the military to take leave under two circumstances:

• Qualifying exigency-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
• Servicemember caregiver-a total of up to 26 workweeks of leave during any single 12-month period if the employee is the spouse, son, daughter, parent, or next of kin caring for a military servicemember recovering from an injury or illness suffered while on active duty in the armed forces

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The provisions for servicemember caregivers took effect in January 2008. However, the effective date for "qualifying exigency" leave was delayed until DOL issued final regs. Now they have, so employers must comply. Here are points to keep in mind:

• Use key terms carefully. When adding and revising policies be sure not to mix the key terms of family military leave such as next of kin, sons, daughters, and parents. Those definitions for family military leave differ from definitions for other types of FMLA leave.
• Describe the conditions under which family military leave is available. Incorporate into your policies the DOL's descriptions of what constitutes a "qualifying exigency" or the circumstances under which an employee is eligible for servicemember caregiver leave.
• Describe required documentation for certification. The final regulations lay out detailed requirements for documentation and certification of the need for family military leave.

Review Policies for Other Types of FMLA Leave

DOL's final FMLA regulations alter the rules for "regular" FMLA such as the employee's or a family member's serious health conditions, and the birth, adoption, or foster care placement of a child.

• Check definitions. DOL has changed definitions for what constitutes "continuing treatment" for a serious health condition (now a 30-day limit on the required two consecutive visits to a healthcare provider), and a 7-day limit (from the onset of incapacity) on the first visit to the provider. Note also that chronic health conditions require at least two doctor's visits per year.

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• Check policy or process for obtaining a certification. If a certification is incomplete or insufficient, the final regulations require the employer to give the employee written notice of the additional information needed and allow the employee 7 days to fix the deficiency. Also, while a manager or HR professional can contact an employee's healthcare provider to clarify or authenticate a certification, the employee's immediate supervisor may not. Fitness-for-duty certifications may address the specifics of any employee's ability to perform the essential functions of the job.
• Check policies against key changes in leave provisions. The final regulations also make changes to leave for adoption, the definitions related to an employee's adult children, when an employee is "needed to care for" a family member, and the list of covered healthcare providers.
• Check policies regarding substitution of paid leave for unpaid FMLA leave. DOL now allows employers to apply their normal leave policies to the substitution of all types of paid leave for unpaid FMLA leave. Employers may choose to change their substitution rules accordingly. Be aware, however, that employers must notify employees of any additional requirements for the use of paid leave.
• Check policies regarding bonus or other payments. Under the new regulations, employers are permitted to disqualify an employee from bonus or other payments based on the achievement of a specified goal such as hours worked, product sold, or perfect attendance, where the employee has not met the goal due to FMLA leave, as long as this is done in a nondiscriminatory manner.

In tomorrow's Advisor, we'll offer tips on notification and certification, and take a look at a complete compliance guide for FMLA.