by Lisa Guerin

Learn how to comply with new FMLA rules regarding family and medical leave for military family members.

On January 28, 2008, President Bush signed a defense authorization bill that gives military family members the right to take medical and family leave from their jobs.

The new law makes important changes to the Family and Medical Leave Act (FMLA) -- and leaves significant questions that will have to be answered by the Department of Labor (DOL). Everyone is scrambling to figure out how to comply with these new rules, at least one of which took effect immediately.

Here's what we know about the new law, and some tips on what you should do right now to make sure you're in compliance.

Leave for Active Duty of a Family Member

Employees may now take FMLA leave for "any qualifying exigency" arising out of a family member's active duty or call to active duty. This new provision joins the existing list of qualifying reasons that allow an employee to take FMLA leave: for their own serious health condition, to care for a seriously ill family member, or to bond with a new child. This leave is part of the regular 12-week entitlement -- that is, the employee gets 12 weeks total per year for any qualifying reason, not an additional 12 weeks for issues relating to a family member's military service.

According to the DOL, this provision will not take effect immediately. The law states that the DOL must issue regulations defining "any qualifying exigency." The DOL has interpreted this to mean that this leave right won't go into effect until regulations are issued. In the meantime, the DOL "encourages" employers to provide this leave anyway.

Here's how existing FMLA procedures and rules will apply to leave for a family member's active duty:

• Intermittent leave. This type of leave may be taken intermittently or on a reduced schedule.
• Notice. Employers may require employees to give "such notice as is reasonable and practicable" if the need for leave is foreseeable. The new law doesn't talk about unforeseeable leave.
• Certification. Employers will be able require a certification relating to the family member's active duty. The Department of Labor is supposed to issue regulations explaining exactly what employers may require and when employees must provide it.
• Paid leave. An employee may choose, or the employer may require an employee, to use applicable accrued paid leave during this type of FMLA leave.
• Married couples. This type of leave does not appear to limit spouses who work for the same employer. Although spouses can be required to combine certain types of FMLA leave (so they get 12 weeks total, rather than 12 weeks each), that limitation doesn't apply to leave for a family member's active duty.

Leave to Care for Injured or Ill Service Member

The law also creates an entirely new entitlement for family members who need to care for a seriously ill or injured service member. These employees can take up to 26 weeks of leave in a year (that's 26 weeks total, not 26 weeks plus 12 weeks of FMLA leave for other reasons). This provision takes effect immediately.

This appears to be a one-time only requirement; the law says that this leave "shall only be available during a single 12-month period." Despite this language, however, the DOL has asked for comments on whether employees should be entitled to a once-only leave benefit of 26 weeks or whether the limit should be applied in some other way (for example, 26 weeks off for each family member injured while on active duty or 26 weeks off for each injury suffered by a family member on active duty).

Here are some of the rules for this type of leave:

• Family members. In addition to spouses, children, and parents (the usual family members covered by the FMLA), "next of kin" are eligible for this type of leave. The law defines next of kin as the service member's "nearest blood relative." This could include lots of relatives not covered by the rest of the FMLA, like siblings, aunts, uncles, nieces, nephews, and cousins.
• Serious injury or illness. This leave is available to care for a service member who is undergoing medical treatment, recuperation, or therapy; is otherwise in outpatient status; or is otherwise on the temporary disability retired list for a serious injury or illness. To qualify as "serious," the service member's injury or illness must have been suffered on active duty, and must be such that it may render the service member medically unfit to perform the duties of his or her office, grade, rank, or rating. This is entirely different from the existing FMLA definition of a "serious health condition".
• Intermittent leave. Employees may take this type of leave intermittently or on a reduced schedule when medically necessary.
• Notice. If leave is needed for the service member's planned medical treatment, the employee must try to schedule such treatment so it doesn't unduly disrupt the employer's operations, subject to the recommendations of the service member's health care provider. For foreseeable leave, the employee must give 30 days' notice or as much notice as is practicable under the circumstances.
• Certification. An employer may require the employee to provide a medical certification from the service member's health care provider, just as is allowed for other types of FMLA leave.
• Paid leave. An employee may choose, or the employer may require an employee, to use applicable accrued paid leave to be paid for this otherwise unpaid FMLA leave.
• Married couples. If both spouses work for the same employer, certain types of leave may be combined. The couple may take a total of 26 weeks of leave to care for a seriously ill or injured service member; bond with a new child; and/or care for a parent with a serious health condition. (Only 12 weeks of that leave can be used to bond with a child or care for a parent.)