DOL Issues Final FMLA Regulations on Military Family Leave

The Department of Labor (DOL) recently issued final Family and Medical Leave Act (FMLA) regulations addressing the new military family leave entitlements under the National Defense Authorization Act (NDAA) for fiscal year 2008. There are two new types of military leave: (1) qualifying exigency and (2) military caregiver. The regulations took effect Jan. 16.

The FMLA also requires employers to allow eligible employees to take 12 weeks of unpaid job-protected leave for their own serious illnesses, for the birth or adoption of a child, or to care for seriously ill family members. Most of the new procedures and requirements under the final rule apply to the leave entitlements for families of military personnel.

Notice requirements

Employers must update their summary plan descriptions (SPDs), employee handbooks and leave policies to reflect the updated FMLA. The DOL provides an optional notice for inclusion in SPDs and handbooks. Employers may post notices on their intranet, provided all employees and applicants have ready access. The DOL also has developed new posters about the military leave provisions, which must be posted at the workplace and are available on the DOL’s Web site (www.dol.gov).

Qualifying exigency leave

Under the NDAA, covered employees may take up to 12 weeks of FMLA leave in a 12-month period for a qualifying exigency, which is when an employee’s family member (spouse, son, daughter or parent) is on active duty or has been notified of an impending call or order to active duty in the armed forces in support of a contingency operation. The law does not allow an additional 12 weeks for military leave — rather, it provides an additional justification for taking up to 12 weeks of leave.

Eligibility requirements
Under the FMLA, “active duty” generally means a call or order to active duty for members of the reserve components and the National Guard, as well as certain retired members of the regular armed forces and retired reserves. FMLA-qualifying exigency military leave is not available to family members of the regular armed forces on active duty. The call or order to active duty must come from the federal government.

A contingency operation involves military actions, operations or hostilities against an enemy of the United States or an opposing military force (e.g., the conflicts in Iraq and Afghanistan). When requesting leave, the employee must give the employer a copy of the active duty orders, which typically state whether the leave is for a contingency operation.

For purposes of qualifying exigency leave, a son or daughter is an employee’s biological, adopted or foster child, stepchild, legal ward or a child for whom the employee stood in place of the parent. The son or daughter may be any age.

An employee must request exigency leave as soon as practicable, which will depend on the facts and circumstances. It generally means requesting leave the same day or the day after the employee first learns of the need for leave.

Types of qualifying exigencies
Qualifying exigency leave may be taken for the following reasons:

• In the event of short-notice deployment, which is when a covered military member is notified of an impending call or order to active duty seven or fewer days before deployment.
• To attend military events and related activities, such as ceremonies, programs or events sponsored by the military, military service organizations or the American Red Cross, relating to the active duty or call to active duty status of a covered military member.
• To arrange child care or attend certain school activities for a covered military member’s biological, adopted or foster child, stepchild, legal ward or a child for whom the military member stands in loco parentis, who is either under age 18 or incapable of self-care. This leave is available only for activities that become necessary due to the call to active duty.
• To make financial and legal arrangements involving the covered military member’s absence while on active duty or call to active duty status, such as executing a will or power of attorney or transferring banking authority.
• To receive counseling by a military chaplain or military service organization (counseling by a health care provider may be covered under other FMLA provisions).
• To spend time with a covered military member who is on short-term, temporary rest and recuperation (R&R) leave during a deployment. Eligible employees may take up to five days of leave for each instance of R&R.
• To attend post-deployment activities, such as arrival ceremonies, reintegration briefings and any other official military-sponsored ceremony or program for 90 days after the covered military member’s active duty ends. This also may be used to address issues arising from the death of a covered military member while on active-duty status.
• To attend other events arising out of the covered military member’s active-duty or call-to-active-duty status. The employer and employee must agree that such leave qualifies as an exigency, and agree to both the timing and duration of such leave.

Confirming documentation
Employers may require confirming certification to support a request for exigency leave. There are two forms of documentation: (1) a copy of the covered military member’s active duty/call to active duty papers, and (2) a signed statement from the employee describing the request for leave. The DOL provides a certification form (WH384) for employers to use. The regulations also allow employers to confirm a call to active duty, appointments and activities with the Department of Defense (DOD).

Military caregiver leave

Military caregiver leave allows an eligible spouse, son, daughter, parent or next of kin of a covered service member to take 26 weeks of leave during a 12-month period. The leave entitles employees to take time off to care for a service member with a serious injury or illness that could render the member unfit to perform the duties of his or her office, grade, rank or rating. The injury or illness must have been incurred in the line of duty for which the service member is (1) undergoing medical treatment, recuperation or therapy, (2) otherwise in outpatient status or (3) otherwise on the temporary disability retired list. This requirement took effect Jan. 28, 2008.

Eligibility requirements
Unlike qualifying exigency leave, military caregiver leave applies to all members of the armed forces, including the National Guard, reserves and regular armed forces. However, soldiers who are retired or were discharged from service are not eligible unless they are on the temporary disability retired list.

The 26-week leave is a “per-service member, per-injury” entitlement. If an employee qualifies for both military caregiver leave and leave to care for a family member with a serious health condition, the employer should designate the leave as covered-service-member leave first. Employees also may take the leave on an intermittent or reduced-schedule basis.

Under the regulations, once an eligible employee begins military caregiver leave, he or she may take up to 26 weeks of leave during the 12 months after the first date of the leave. Calculating this period is different from calculating 12 weeks of leave for other FMLA-qualifying reasons. If the employee does not use the entire entitlement during this 12-month period, the remaining weeks of leave are forfeited. Employees might be eligible to take additional 26-week periods of leave in a different 12-month period to care for a different covered service member or to care for the same service member with a subsequent serious injury or illness.

The next of kin of a covered service member may also take leave. “Next of kin” means the nearest blood relative of a covered service member other than a spouse, parent, son or daughter. The service member can designate someone as next of kin (in writing), or, alternatively, the regulations provide ordering criteria for determining next of kin. There are procedures for employers to follow to confirm next-of-kin status. The next of kin need not be the only person available to care for the service member.

Military caregiver leave is not limited to caring only for those service members who receive medical treatment, recuperation or therapy from a DOD health care provider.

Confirming documentation
The regulations state that an employer may request a certification of the injury or illness. Such certification may be completed by a DOD health care provider, a Veterans Health Administration health care provider, a TRICARE network-authorized private health care provider or a non-network TRICARE-authorized private health care provider (TRICARE is the DOD health care program).

Employees seeking caregiver leave must follow existing FMLA notice rules, including the requirement to work with employers to schedule leave without unduly disrupting operations.