Excerpted from Alabama Employment Law Letter and written by attorneys at the law firms of Lehr Middlebrooks & Vreeland, P.C.

The U.S. Department of Labor (DOL) has issued its proposed overhaul of the Family and Medical Leave Act (FMLA). Although the new regulations aren't yet final, other changes related to leave for families of service members are already in effect. Here's a checklist to help you comply with the new regulations as they pertain to families of military service members.

The list

1. Prepare. Since current FMLA regulations require that you have a written FMLA policy, you or your legal counsel should prepare a short policy that covers the new types of FMLA leave. Existing regulations apply to the new types of leave. So until regulations specific to the new types of FMLA leave are issued, it's probably better to prepare a separate policy on the new types of leave and distribute it to all employees to satisfy the written policy requirement. Once the final regulations are issued, your entire FMLA policy should be revised and redistributed.

2. Post the policy. The current regulations require you to post a summary of the FMLA. It's doubtful that the DOL will enforce the posting requirement as it applies to the new types of FMLA leave until the regulations are issued. To be on the safe side, however, you should at least post your policy on the new leave rights and requirements.

3. Use existing forms. You should use the existing DOL prototype "Certification of Health Care Provider" form for service member caregiver leave. It should suffice until the DOL determines whether a separate form is needed for caregiver leave.

4. Develop a certification form. You should develop a short certification form to use for service member family leave until the DOL releases regulations on this issue. The form should include representations by the employee that:

" he is the spouse, child, or parent of a covered service member; and

" the service member has been called to or will be on break from active duty in the armed forces.

Also on the form, the employee should:

" state the dates the service member must report to duty or be on break from duty;

" state the dates the employee wants to be on leave;

" state the reasons the employee wants to be absent, why the need for leave is urgent, and how those reasons are related to the service member's call to or break from active duty; and

" state that the answers on the form are true and correct.

5. Review all FMLA requests equally. You should review each request for service member caregiver leave the same way you would review FMLA leaves for serious health conditions. The same rules apply.

6. Consider all good-faith FMLA military requests. Review each request for service member family leave, and approve any such leave that appears to be legitimate. Until final regs are issued, you should probably be fairly liberal in granting this type of leave unless there's compelling evidence that the request isn't legitimate.

7. Designate leave as FMLA leave. You should designate leave meeting the requirement as FMLA leave, and do so in writing. Use the current DOL prototype form for the designation, and hand-write or type in appropriate modifications for the situation. Alternatively, you may want to develop a special form letter designating the leave as FMLA leave by incorporating the pertinent provisions from the DOL prototype form.

8. Apply FMLA rules. Continue to apply the current FMLA rules and regulations except to the extent that new amendments provide otherwise.

9. Consult counsel. Consult with your employment counsel if you have any questions regarding the new law's provisions or compliance with them.

10. Submit comments. You should be ready to submit comments when the DOL proposes regulations on the new amendments.


Bottom line
You should anticipate a major overhaul of your FMLA policies once the new regulations become final. Until then, review and make sure you've complied with the new forms of leave.


Copyright 2008 M. Lee Smith Publishers LLC. ALABAMA EMPLOYMENT LAW LETTER . The Alabama State Bar requires the following disclosure: "No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.