Has anyone tried to apply the new FMLA family MEDICAL military leave provision yet? (the new FMLA amendments that give up to 26 weeks of leave in a single 12 month period to an employee so that employee can care for a covered family member who is seriously injured while on active military duty).

There is not too much out there in the way of guidance yet (no regs yet), and we are wondering about certification, showing that no one else can care for the person, determinng the 12 month period, etc. Anyone dealing with this issue yet?

 Thanks for any help!

HRDir1:

showing that no one else can care for the person...

I am not so sure that this has ever been something that the employee had to prove under FMLA.....(and don't know if it is something that was added with the new changes)

Also "The medical certification provision that an employee is ``needed
to care for'' a family member encompasses both physical and
psychological care. It includes situations where, for example, because
of a serious health condition, the family member is unable to care for
his or her own basic medical, hygienic, or nutritional needs or safety,
or is unable to transport himself or herself to the doctor, etc. The
term also includes providing psychological comfort and reassurance which
would be beneficial to a child, spouse or parent with a serious health
condition who is receiving inpatient or home care. http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.116.htm

It is my understanding that an employer does not have the right to disallow FMLA rights just because there is someone else that could provide the physical care.  For example, both a father and mother at two different employers could take FMLA to care for a sick child.  Most parents would choose to split their time off so that they extend the total amount, but I have never seen anything that doesn't allow them to take the same time. 

I would love to read anything that suggests otherwise.  So if anyone understands this differently especially under the new military leave, please let me know!

ETA: I did run across this regarding the military amendment to FMLA:  "In addition, the amendments now protect “next of kin,” defined as the nearest blood relative of a service member, to take leave to care for an injured service member. The FMLA previously did not provide any protection for non-parent/child/spouse family members, such as brothers, sisters, cousins, uncles, or grandparents, to care for employees with serious health conditions. (However, the FMLA did protect leave for individuals “in loco parentis” who were not actually the parents of an employee.) The next-of-kin provisions are limited to caring for a seriously-injured service member. " from http://www.shawvalenza.com/publications.php?id=81

So it might be that in the military certification, the employee may need to prove the "next of kin" relationship.

HRforME is right in that, as far as FMLA light is concerned (FMLA without the military portions added), you could no more require a person to demonstate that there was nobody else to care for a covered family member than you could tell them which doctor to see to fill out an initial certification.  We have an employee that has someone help with her mother Monday through Friday.  She doesn't work any of her Saturday shifts in order to care for her mother even though she could get additional care for her mother on that day.  I cannot tell her she has to put her mother in a day-stay facility or hire additional help to come to their house on Saturday so that she can work on Saturdays.

Under the new provisions, you probably can't do much more than get someone to document in some way that they are next of kin to a service member.  It is not clear to me how you will be able to distinguish between older sister and younger brother in terms of which is the correct next of kin to be covered under the regs.