In yesterday’s Advisor, we addressed the tricky issue of "Qualifying Exigency"; today we tackle the other half of the military FMLA tangle, servicemember caregiver leave, and we take a look at the "FMLA bible."
An eligible employee is entitled to 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 covered military servicemember or veteran recovering from an injury or illness that:
- Was suffered while on active duty in the armed forces,
- Existed before the beginning of the member’s active duty and was aggravated by service, or
- Manifested itself before or after the member became a veteran.
Note: Several states also have laws allowing employees to take leave to spend time with deployed or recovering family members in the military.
Some of the more confusing aspects of caregiver leave:
Per Servicemember, Per Injury
The caregiver leave is based on a "per service member, per injury" approach, so an employee may be entitled to take this leave more than once. Unused leave time may not be carried over into the next year.
Different Year Calculation
The "year" for caregiver leave is not necessarily the same as the year for normal FMLA leave. The caregiver leave year begins the day the leave begins.
FMLA Changes—expecte
d to be the #1 hassle of 2010. BLR’s compliance guide is ready to help now. Click here to find out more about the Family and Medical Leave Act Compliance Guide.
Employer May Request Extensive Information
An employer may request that the covered servicemember’s healthcare provider furnish an extensive list of information that is contained in DOL’s Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave (Form WH-385). No information may be required beyond that specified by the regulations (and contained in the WH-385).
No Second Opinions
Second and third opinions and recertifications are expressly prohibited for leave to care for a covered servicemember.
ITOs and ITAs Must Be Accepted
An employer requiring an employee to submit a certification for leave to care for a covered servicemember must accept invitational travel orders (ITOs) or invitational travel authorizations (ITAs) issued to any family member to join an injured or ill servicemember at his or her bedside as sufficient certification, in lieu of the WH-385 or an employer’s own certification form.
DOL Hasn’t Revised Forms
Finally, employers should note that DOL has not yet revised its family military leave certification forms to reflect the changes brought about by the 2010 National Defense Authorization Act (NDAA), but employers must abide by the changes. Therefore, employers utilizing DOL’s forms are advised to amend or edit the language of DOL’s certification forms, if necessary.
The NDAA changed the family military leave provisions of FMLA by:
- Expanding the exigency leave benefits to include family members of all active duty servicemembers (Under the “old” law, only family members of National Guard members and reservists were eligible.)
- Expanding the type of covered duty to all deployments to a foreign country (The old law covered only contingency operations.)
- Expanding the servicemember caregiver leave provision to include veterans undergoing medical treatment, recuperation, or therapy for a serious injury or illness that occurred any time during the 5 years preceding the date of treatment (The old law covered only individuals in the active military.)
FMLA hassles—they just won’t go away, will they? It’s an almost overwhelming task to keep up with the old FMLA, let alone comply with the recent, far-reaching changes. Good news! BLR’s editors have gone the extra mile to get your comprehensive compliance guide up to date.
A whirlwind of changes has hit the FMLA—Are you ready to comply? Order BLR’s comprehensive guidebook and find out what you need to do. You’ll get expert FMLA guidance, forms, and concrete examples. Find out more.
BLR’s recently updated Family and Medical Leave Act Compliance Guide—the book some are calling the “FMLA bible”—simplifies the frustrating and confusing complexities of the FMLA, so you know exactly how to comply in every situation.
It contains practical answers to all the FMLA questions you are asking—and the ones you haven’t thought of but should be asking.
The Family and Medical Leave Act Compliance Guide includes:
- Leave law overview
- All the new forms and advice on how to use them
- Practical guidance on implementing all aspects of the new rules
- Analysis of federal and state laws, what they require, and how they interact
- Leave circumstances, coverage, and eligibility—for the FMLA, the Americans with Disabilities Act, workers’ comp, and military leave
- Recordkeeping and reporting requirements
- Reasonable accommodation
- Sample policies and forms
Plus
- A quarterly newsletter and updates to make sure you stay in compliance as any changes come about
Get more information or order your copy of the Family and Medical Leave Act Compliance Guide.
Other Recent Articles on Leave Policy/Compliance
Real-World FMLA: Some Vexing Questions
Navigating the Dangerous Light-Duty Highway
Escape from HR’s Bermuda Triangle
FMLA-FLSA-ERISA: Another Bermuda Triangle?