Background
The National Defense Authorization Act, which was signed into law on January 28, 2008, expanded the Family and Medical Leave Act of 1993 (“FMLA”) to allow covered employees to take FMLA leave to take care of an injured or ill family member who is a member of the military or to take leave because of a qualifying exigency that arises “out of the fact that the spouse, or a son, daughter, or parent of the employee 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 Wage and Hour Division of the Department of Labor recently issued new regulations to address these new military leave provisions and incorporate them into the FMLA regulations framework. The new regulations apply to those employers who are currently subject to FMLA regulations and the regulations took effect in January 2009.
Previously under the FMLA, eligible employees who were employed by a covered employer were allowed “to take job-protected unpaid leave” or utilize accrued leave for up to 12 weeks in a 12 month period (1) to care for a newly-born child, adopted child, or a child placed with the employee for foster care; (2) to take care of a family member with a serious health condition; or (3) because of an employee’s own serious health condition that makes the employee unable to perform his or her job. The new military family leave provisions add two types of leave to those categories of leave already allowed under the FMLA: (1) leave taken for a “qualifying exigency,” which arises because a servicemember is on active duty or has been notified of an impending call to active duty status, and (2) caregiver leave, which is leave taken to care for a covered servicemember who is recovering from a serious illness or injury sustained in the line of duty on active duty.
Qualifying exigency leave is defined as leave taken “because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on active duty (or has been notified of an impending call or order to active duty) in support of a contingency operation.” Qualifying exigency leave, like other FMLA leave, is limited to 12 weeks. Caregiver leave allows an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered service member to take protected leave of up to a total of 26 workweeks of leave during a single 12-month period to care for a servicemember with a serious injury or illness.
A “covered employer” under the FMLA is defined as an employer who employs 50 or more employees for each workday during 20 or more calendar weeks. An eligible employee is one who has been employed by the employer for at least 12 months and who has worked for at least 1,250 hours during the 12 months immediately preceding the beginning of FMLA leave. The new regulations may affect how time of employment is calculated under the FMLA. The twelve months that the employee must be employed by the employer do not have to consist of 12 consecutive months. However, periods prior to a break in employment of seven years or more do not need to be counted to determine if an employee has been employed for 12 months unless the break in service was occasioned by the employee’s fulfillment of a National Guard or Reserve military obligation. The time the employee served performing the military service must be counted to determine whether he or she has been employed for at least 12 months by the employer.
Also, “an employee returning from fulfilling his or her National Guard or Reserve military obligation shall be credited with the hours of service that would have been performed but for the period of military service in determining whether the employee worked the 1,250 hours of service.” An employee who is reemployed after return from military service will have the hours that he or she would have worked during the previous 12-month period added to any hours actually worked to meet the 1,250 hour requirement. The employee’s pre-military service schedule should be used to make the calculations on hours of service.
Familial Relationships
The new regulations specifically define familial relationships for the purposes of FMLA military-related leave. A covered servicemember’s next of kin “is the nearest blood relative other than the covered servicemember’s spouse, parent, son, or daughter, in the following order of priority:” blood relatives that have been granted legal custody of a servicemember, brothers and sisters, grandparents, uncles and aunts, and first cousins, unless the covered servicemember designates in writing another blood relative to serve as his or her caregiver under the FMLA. If no designation is made, multiple family members of the same level of relationship may take FMLA leave to provide care, either consecutively or simultaneously. When a designation is made, however, “the designated individual shall be deemed to be the covered servicemember’s only next of kin.
Son or daughter on active duty or call to active duty is defined as “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 active duty or call to active duty status, and who is of any age.” Son or daughter of a covered servicemember is defined as the “servicemember’s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the servicemember stood in loco parentis, and who is of any age.” Parent of a covered servicemember is defined as “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 . . . [but] does not include parents ‘in law.’”
Qualifying Exigency Leave
To qualify for leave because of a qualifying exigency, the employee’s spouse, son, daughter, or parent, as defined by the regulations, must be a covered military member who is currently on active duty, “or has been notified of an impending call or order to active duty” in support of a contingency operation. A contingency operation is defined as a military operation that has been designated by the Secretary of Defense “as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities” which result “in the call or order to, or retention on, active duty of members of the uniformed services.”
Eligible employees may take FMLA leave while the covered servicemember is on active duty or called to active duty status for one or more of the following exigencies: (1) for short-notice deployment; (2) to attend military events and related activities; (3) for childcare and school activities such as to arrange childcare, “provide childcare on an urgent, immediate need basis,” or for school enrollment or meetings; (4) to make financial and legal arrangements; (5) to attend counseling; (6) to partake in rest and recuperation activities such as spending time with a covered servicemember who is short-term leave (limited to five days for each instance); (7) post-deployment activities; and (8) to address other events that the employer and employee should qualify as an exigency.
Caregiver Leave
Eligible employees may also take FMLA to care for a current member of the Armed Forces, including the National Guard or Reserves, or a member who is on temporary disability retired list who incurred a serious injury or illness in the line of duty on active duty if the servicemember is undergoing medical treatment, therapy, recuperation, is in outpatient status, or on the temporary retired list. Leave is not allowed to care for former members or members on permanent disability retired list. “Serious injury or illness” is defined as “an injury or illness incurred by a covered servicemember in the line of duty on active duty that may render the servicemember medically unfit to perform the duties of his or her office, grade, rank or rating.” “Outpatient status” is the “status of a member of the Armed Forces assigned to either a military medical treatment facility as an outpatient; or a unit established for the purpose of providing command and control of members of the Armed Forces receiving medical care as outpatients.”
An eligible employee must be the spouse, daughter, son, parent, or next of kin of a covered servicemember in order to care for a covered servicemember. An eligible employee is entitled to 26 weeks leave in a single 12-month period. This 12-month period begins the first day the employee takes FMLA leave and ends 12 months after that date “regardless of the method used by the employer to determine the employee’s 12 workweeks of leave entitlement for other FMLA-qualifying reasons.” If the employee does not take all 26 weeks of leave within the 12-month period, the remaining part of the leave is forfeited.
Leave Provisions
For either type of military-related FMLA leave, the leave may be taken intermittently or on a reduced leave schedule if it is medically necessary to care for a covered servicemember or if it is necessary to deal with a qualifying exigency. If an employee needs to take intermittent leave or leave on a reduced leave schedule and the need for leave is foreseeable, the employer may require the employee to transfer temporarily to an alternative position that will better accommodate recurring periods of leave. The alternative position, however, must have equivalent pay and benefits.
An employer must maintain the employee’s coverage under a group health plan during FMLA leave. An employer may recover its share of health plan premiums paid during FMLA leave if the employee does not return to work after his or her FMLA leave has been exhausted or expired, unless the reason the employee does not return to work is due to the continuation, recurrence, or onset of a serious injury or illness of a covered servicemember. The employer, however, may require certification of the injury or illness.
Notice
An employer must provide to employees notice of the FMLA’s provisions and must also notify the employees of the procedures for filing complaints for violations of the FMLA. An employer must also provide written notice to employees detailing specific expectations and obligations and also must specifically inform employees of any requirements that the employee may have to furnish certification of a servicemember’s serious injury or illness or of the qualify exigency arising out of active duty or call to active duty status.
Employees also have notice requirements under the FMLA which require the employee to provide employers with notice of the need for leave. If the need for FMLA leave is foreseeable, an employee must provide his or her employer with at least 30 days notice before the leave is to begin, or provide notice as soon as practicable after the need for leave arises. The employee should notify the employer of the need for leave and the anticipated time and duration of the leave. In military leave situations, an employer can request that an employee provide certification of the need for leave for either a qualifying exigency or to care for a servicemember. If the need for FMLA leave is unforeseeable, an employee must “provide sufficient information for an employer to be able to determine whether the FMLA applies to the leave request.”
The first time an employee requests FMLA for a qualifying exigency arising out of active duty or call to active duty status, the employer may require the employee to provide a copy of military-issued documentation indicating that the covered military member is on active duty status or call to active duty status in support of a contingency operation. The documentation must include the dates of active duty service. This documentation only needs to be provided once, unless a qualifying exigency arises out of a different call to duty. An employer may contact the Department of Defense to verify that a covered military member is on active duty or call to active duty status. The employer may not request additional information. The employee’s permission is not required before the employer can seek verification of status.
In cases of military caregiver leave, an employer may require that the employee obtain a certification of serious injury or illness from the servicemember’s health care provider.
However, unlike situations where FMLA leave is taken for an employee’s own serious health condition or the serious health condition of an employee’s family member, an employer may not obtain a second and third opinion or require recertification when a request for leave is made to care for a covered servicemember. Also, an employer must accept as sufficient certification of an injury or illness travel orders issued to any family member to join an ill or injured servicemember.
Questions
If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.
Bruce Scheidt, Laura Izon Powell, David Tyra or Diana Halpenny | 916.321.4500