The Department of Labor recently adopted regulations to implement these amendments to the FMLA. These became effective on January 16, 2009, for employers with 50 or more employees. The new regulations require employers to update their FMLA policies, use new notices and provide additional leave to eligible employees. To be eligible, an employee must:
• Have worked for the employer for a total of 12 months.
• Have worked at least 1,250 hours over the previous 12 months.
• Work at a location where at least 50 employees are employed by the employer within 75 miles.
An employer’s FMLA policies must now provide for military caregiver leave, allowing an eligible employee to take up to 26 weeks in a 12-month period to care for a covered family service member who has suffered a serious illness or injury in the line of duty while on active duty. “Qualifying exigency leave” may be taken by an eligible employee for up to 12 weeks when an “exigency” arises because a covered family member belonging to the National Guard or military reserves is on active duty or is called to active duty. The new regulations specify eight broad categories that are regarded as exigencies.
Qualifying exigency leave
Although the then-secretary of labor, Elaine Chao, indicated that the military caregiver-leave provisions of the National Defense Authorization Act became effective upon enactment on January 28, 2008, it is worth noting that the same is not true for qualifying exigency leave. Qualifying exigency leave became effective January 16, 2009. The DOL has defined “qualifying exigencies” through a specific and exclusive list:
• Short-notice deployment: Issues arising from a covered military member’s deployment on seven or fewer days of notice for a period of seven days from the date of notification.
• Military events and activities: Attending military events and related activities such as a ceremony, program or event sponsored by the military or family-support or assistance programs and informational briefings sponsored or promoted by the military.
• Child-care and school activities: Certain child-care and related activities arising from the active duty or call to active duty of a covered military member, such as arranging for alternative child care or providing child care on a non-routine, urgent, immediate-need basis, if they are necessary due to circumstances arising from the active duty or call to active duty.
• Financial and legal arrangements: Making or updating financial and legal arrangements to address a covered military member’s absence.
• Counseling: Attending counseling by a non-health-care provider for oneself, the covered military member, or the child of the covered military member, if the need for it arises from the active duty or call to active duty status.
• Rest and recuperation: Spending up to five days of leave with a covered military member who is on short-term rest and recuperation leave during deployment.
• Post-deployment activities: Attending post-deployment activities (such as arrival ceremonies) sponsored by the military for a period of 90 days following termination of active duty status or addressing issues arising from the death of a covered military member.
• Additional activities: Any other event the employee and employer agree is a qualifying exigency. This category is distinguishable from the others because employers and employees must agree to both the timing and duration of any such qualifying exigency leave and the leave may be counted against the employee’s 12-week FMLA leave entitlement.
For purposes of qualifying exigency leave, a “covered military member” includes the employee’s spouse, son, daughter or parent who is on active duty or called to active duty status. Additionally, the new FMLA regulations contain special definitions for son and daughter that allow employees to take military leave even if their child is 18 years or older. The “active duty” or “call to active duty status” requirement limits the qualifying exigency leave benefit to members of the National Guard or reserves and retired members of the regular armed forces or of the reserves.
Thus, families of service members in the regular armed forces are not eligible for qualifying exigency leave. Instead, covered employees with family members in the regular armed forces are provided military caregiver leave.
Military caregiver leave
An employee who is the spouse, son, daughter, parent or next of kin of a covered service member with a serious injury or illness may take FMLA leave to provide care to the service members. Unlike the qualifying exigency leave, military caregiver leave extends to the families of service members in the regular armed forces, as well as those in the National Guard and reserves. A covered service member is a service member who is undergoing medical treatment, recuperation or therapy; is in outpatient status; or is on the temporary-disability retired list as result of a serious injury or illness incurred in the line of active duty. A serious injury or illness is one that was incurred by a service member in the line of duty on active duty that may render the service member medically unfit to perform the duties of his or her office, grade, rank or rating.
Covered employees are eligible for up to 26 workweeks of unpaid military caregiver leave in a single 12-month period to care for a service member. The “single 12-month period” for leave to care for a covered service member with a serious injury or illness begins on the first day the employee takes leave for this reason and ends 12 months later, regardless of the 12-month period established by the employer for other types of FMLA leave.
Leave may not be used to care for former service members or service members on the permanent-disability retired list. Although military caregiver leave is generally intended to be treated as a one-time entitlement that does not renew each year like other types of qualifying leave, note that the regulations require that it must be applied on a “per-covered-service member, per-injury basis.” An employee may therefore be entitled to take more than a single 26-week leave if the second leave is to care for a different covered service member or to care for the same service member with a subsequent serious injury or illness.
Verifying leave certification
The first time that an employee requests qualifying exigency leave, an employer may require the employee to provide a copy of the covered military member’s active duty orders or other documentation issued by the military to confirm the necessity of leave. Alternatively, the employer can contact the appropriate military branch to confirm the claimed status. An employer may also require certification of the exigency necessitating leave each time that an employee first requests leave for one of the qualifying exigencies. The certification should include:
• Appropriate facts supporting the need for leave.
• The date on which the qualifying exigency commenced or will commence and the end date.
• Where leave will be needed on an intermittent basis, the frequency and duration of the qualifying exigency.
• Appropriate contact information if the exigency involves meeting with a third party.
For convenience, the Department of Labor has developed model forms that can be used to satisfy the certification requirements. These are available on the agency’s Web site, here. (Scroll down to the “Forms” section.)
An employer may require an employee seeking to take military caregiver leave to obtain a certification completed by an authorized health care provider to the covered service member. The DOL has developed a model form for employees to furnish appropriate information to support their requests for leave. Employers are advised to make both forms available to employees to further compliance with the amended FMLA.
The time requirements for certification procedures for all FMLA claims are the same. There is no special consideration for either type of military leave. Therefore, the employee must submit any requested certification to the employer within the time frame indicated by the employer. Employers must ensure the specified time frame is at least 15 calendar days after the employee’s request. However, the military leave certification requirements do limit employers’ ability to authenticate and clarify medical certification submitted to support a request for military leave. While employers can authenticate and clarify medical certifications, employers are not permitted to require second or third opinions, nor can they require recertification for such leave.
Communication is key
The DOL recognizes that a key component of making the FMLA a success is effective communication between employees and employers. Many employers are concerned about the disruption of work caused by the lack of advance notice for unscheduled absences. To avoid undue hardships for employers, employees are required to provide notice to their employers of the need for qualifying exigency leave or military caregiver leave as soon as practicable. By way of example, the DOL states that an employee who receives notice of a qualifying exigency a week in advance of the need for leave should provide notice to his or her employer of the need for such leave the same day or the next business day.
Employees seeking to use military caregiver leave must provide 30 days of advance notice for planned medical treatment for a serious injury or illness of a covered service member. When 30-day notice is not possible, the employee must notify his/her employer as soon as practicable. Barring unusual circumstances, an employer’s normal call-in procedure applies where the need for either type of leave is unforeseeable. However, employers must remain mindful that an employee does not need to specifically assert his or her rights under FMLA, or even mention FMLA, when providing notice. The employee need only provide “sufficient information” to make the employer aware of the need for FMLA and the anticipated timing and duration of the leave.
These new leaves can have a significant impact not only on military families and service members, but also on employers covered by this law, particularly during these troubled economic times when companies are already running with fewer employees. In all, there are more than 1 million people serving in the regular armed forces. And since 2001, more than 600,000 members of the reserves have been called to active duty. Getting up to speed on these changes immediately—and educating your management team—is the best way to ensure your company’s compliance.
The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.