Labor Department Publishes Final FMLA Regulations – Part 1

The United States Department of Labor has published final regulations interpreting several different provisions of the Family and Medical Leave Act (FMLA).  These new regulations go into effect on January 16, 2009.

Part of the purpose of the new regulations is to interpret the new amendments to the Act, which now provides leave for certain military-related purposes.  The recent amendments to the FMLA, which I previously wrote about, now permit an employee to take unpaid FMLA leave for “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.

The new regulations define this term “qualifying exigency” as including a number of specified incidents, including (as paraphrased directly from the regulations):

1. Short-notice deployment. (To address any issue that arises from the fact that a covered military member is notified of an impending call or order to active duty seven or less calendar days prior to the date of deployment.)

2.  Military events and related activities.  (To attend any official ceremony, program, or event sponsored by the military that is related to the active duty or call to active duty status of a covered military member, etc.)

3.  Childcare and school activities.  (To arrange for alternative childcare, for example, when the active duty or call to active duty status of a covered military member necessitates a change in the existing childcare arrangement for a child a covered military member, or to provide childcare on an urgent, immediate need basis – but not on a routine, regular, or everyday basis – when the need to provide such care arises from the active duty or call to active duty status.)

4.  Financial and legal arrangements.  (To make or update financial or legal arrangements to address the covered military member’s absence while on active duty, such as preparing and
executing financial and healthcare powers of attorney, transferring bank account signature authority, or preparing or updating a will or living trust.)

5.  Counseling.  (To attend counseling provided by someone other than a health care provider for oneself, for the covered military member, or for the child of the covered military member, provided that the need for counseling arises from the active duty of a covered military member.)

6.  Rest and recuperation.  (To spend time with a covered military member who is on short-term, temporary, rest and recuperation leave during the period of deployment.  This leave may be taken for only up to five days for each instance of rest and recuperation.)

7.  Post-deployment activities.  (To attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military for a period
of 90 days following the termination of the covered military member’s active
duty status, or to address issues that arise from the death of a covered military member
while on active duty status, such as meeting and recovering the body of the covered military member and making funeral arrangements.)

8.  Additional activities that arise out of the covered military member’s active duty provided
that the employer and employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave.

As you can imagine, the regulations provide more detail for the items described above.  If you have an employee who requests to take advantage of this new type of FMLA leave, be sure to consult with counsel to make sure that the new regulations are being followed properly.

I will write more later to outline some of the other changes that have been made to the regulations.

–  Read Part 2 of the review of the FMLA regulations

–  Read Part 3 of the review of the FMLA regulations


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