Why? Military Family Leave . . . . Part 2.

So far that is the same set of definitions we have found elsewhere in the act.  Now here is where it gets different.  Who the heck is a “next of kin?”

(e) Next of kin of a covered servicemember means the nearest blood relative other than the covered servicemember’s spouse, parent, son, or daughter, in the following order of priority: blood relatives who have been granted legal custody of the covered servicemember by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the covered servicemember has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under the FMLA. When no such designation is made, and there are multiple family members with the same level of relationship to the covered servicemember, all such family members shall be considered the covered servicemember’s next of kin and may take FMLA leave to provide care to the covered servicemember, either consecutively or simultaneously. When such designation has been made, the designated individual shall be deemed to be the covered servicemember’s only next of kin. See §825.127(d)(3).

29 CFR §825.122(e).

OK that is helpful.  Here is the deal, next of kin for the purpose of these types of military leave, and this is the only place in the FMLA where this appears, is somebody who is not a parent or child but who is the next closest blood relative or somebody who was designated as a next of kin by the service member or has been given legal custody of the servicemember.  And get this, if there is no designation, then there are multiple family members at the same level, say 9 brothers and sisters like my dad had, they all are entitled to leave to take care of the covered service member.

Now there are other definitions in this section for adoption and foster care and but we are not going to go into those.  But you should know the following:

(h) Son or daughter on covered active duty or call to covered active duty status means the employee’s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the employee stood in loco parentis, who is on covered active duty or call to covered active duty status, and who is of any age. See §825.126(a)(5).

(i) Son or daughter of a covered servicemember means the covered servicemember’s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the covered servicemember stood in loco parentis, and who is of any age. See §825.127(d)(1).

(j) Parent of a covered servicemember means a covered servicemember’s biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the covered servicemember. This term does not include parents “in law.” See §825.127(d)(2).

29 CFR §825.122(h-j).  And these are self-explanatory so I don’t have to get into any detail on them right?

But one last thing.  How do you prove all this and can you require the employee to prove it?  You can, but you can’t ask for too much:

(k) Documenting relationships. For purposes of confirmation of family relationship, the employer may require the employee giving notice of the need for leave to provide reasonable documentation or statement of family relationship. This documentation may take the form of a simple statement from the employee, or a child’s birth certificate, a court document, etc. The employer is entitled to examine documentation such as a birth certificate, etc., but the employee is entitled to the return of the official document submitted for this purpose.

29 CFR §825.121(k).