Family & Medical Leave Act News, Part I — Military Family Leave Rights
Congress and the Department of Labor (DOL) recently took two important actions affecting the Family & Medical Leave Act (FMLA): Congress created special leave rights for military families; and the DOL issued proposed changes to the FMLA regulations aimed at improving some troublesome areas of FMLA administration.
Today, a look at the provision creating special military family leave rights.
On January 28, 2008, President Bush signed into law the National Defense Authorization Act for Fiscal Year 2008. A section of this Act expands leave rights under the Family Medical Leave Act (“FMLA”) as follows (DOL has posted a complete amended text of the FMLA, showing the new language in bold italics).
Active Duty Leave
Eligible employees with a spouse, child, or parent who is on armed forces active duty, or has been notified of an impending call or order to active duty, may take up to 12 weeks of unpaid leave due to a “qualifying exigency.”
“Qualifying exigency” is not defined in the law as passed by Congress. This definition has been left to the Department of Labor (DOL), which has yet to issue regulations on it. However, examples of “qualifying exigency” offered by the DOL in its Notice of Proposed Rulemaking include:
- Making arrangements for childcare required due to the service member’s absence.
- Making financial and legal arrangements to address the service member’s absence.
- Attending counseling related to the service member’s active duty.
- Attending official ceremonies or programs where the military requests participation of the family member.
- Attending to farewell or arrival arrangements for the service member.
- Attending affairs caused by the missing status or death of the service member.
If the need for this leave is foreseeable, such as when the family member receives his/her military orders in advance, the employee must provide the employer with “reasonable and practicable” notice of the need for leave, and the employer may require the request for leave to be supported by a certification, such as a copy of the military orders.
According to the DOL website, this new portion of the FMLA does not officially go into effect until the DOL issues regulations defining “qualifying exigency.” However, the DOL encourages employers to provide this type of leave to qualifying employees immediately. Regulations defining the term “qualifying exigency” are currently under review, and should be issued in the next few months.
Military Caregiver Leave
Eligible employees who are the spouse, child, parent, or “nearest blood relative” of a service member who has incurred a “serious illness or injury” while on active duty are permitted to take up to 26 weeks of unpaid leave in a single 12-month period to care for the injured service member (in contrast to 12 weeks for a non-service serious health condition of a family member).
The definition of “a serious illness or injury” under the caregiver provision is much broader than the definition of “serious health condition” under the FMLA. “Serious injury or illness” is defined as one incurred in the line of active duty that renders the service person medically unfit to perform the duties of his/her office, grade, rank, or rating.
This includes any member of the armed forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, due to a serious injury or illness.
Additional Important Points
- When requested by the service member or his/her family, the military will provide a medical certification to military service members certifying the service member is seriously injured or ill and is actively receiving medical treatment. An employer can request a copy of this certification.
- Until the Department of Labor regulations are issued, an employer should also accept a medical certification from the injured service member’s personal physician, regardless of who is providing the medical treatment.
- An employer’s duty to provide this type of “caregiver” leave began immediately upon the President’s signing of the Act, according to the Department of Labor.
- Both types of service-related FMLA leave can be taken on an intermittent or reduced leave basis.
- An employer may require, or the employee may elect, to substitute accrued paid leave for either active duty or caregiver leave.
- The DOL is expected to issue clarifying regulations in the next few months. Employers should act quickly to revise their policies and practices to comply with the new provisions of the Act.
Along with the new military family leave rights under the amended FMLA has come an obligation of all FMLA-covered employers to post an amended poster including these rights in the description of FMLA rights.
DOL offers a free PDF file containing a special notice addressing only the new FMLA military family leave rights that is suitable for compliance with this requirement (assuming the employer already has an older FMLA poster).
Additionally, commercial purveyors of employment law posters are incorporating the new rights into their posters.