• FMLA Leave Extended to Families of Active-Duty Military Members
  • April 2, 2008 | Author: Naomi Levelle-Haslitt
  • Law Firm: Miller Nash LLP - Portland Office
  • On January 28, 2008, President Bush signed into law Family Medical Leave Act ("FMLA") amendments providing two new types of leave to workers with family members in the military as part of the National Defense Authorization Act of 2008 (the "Act"). With approximately 1.4 million currently active military members, the new military-leave amendments could have broad impact on employers. Additionally, affected employers may face uncertainties about when and how to properly comply with the changes because of pending regulations about the FMLA amendments.

    Both of the leave amendments apply only to those employers that are currently subject to FMLA requirements. FMLA applies to employers with 50 or more employees in the country for each working day for 20 or more workweeks in the current or preceding calendar year. Employees are eligible for FMLA leave after working for a covered employer at least 1,250 hours in the preceding 12 months, if the employer has 50 or more employees within 75 miles of the employee's worksite.

    The new military-leave laws provide: (1) "caregiver leave," which allows up to 26 weeks of leave during a single 12-month period to a spouse, child, parent, or "next of kin" serving as the caregiver of an active-duty military member who suffered an injury or became ill, and (2) "active-duty family-member leave," which provides up to 12 weeks of FMLA leave in a 12-month period for "qualifying exigenc[ies]" when an employee's spouse, child, or parent is on or called to active duty.

    Because "caregiver leave" became immediately effective with the President's signature, employers need to revise their policies and practices to comply with caregiver-leave requirements, if they have not already done so. "Active-duty family-member leave" provisions will not become effective until the Secretary of Labor issues final regulations about what constitutes a "qualifying exigency." Until the Department of Labor issues regulations, employers must act in good faith in providing leave under the new legislation. Still, attempting to comply without knowing what constitutes a "qualifying exigency" may be difficult and could result in confusion in the future because the Department of Labor's definition will probably differ from the employer's definition.

    Caregiver leave.

    Service members covered under caregiver leave are "member[s] of the Armed Forces, including a member of the National Guard or a Reserve, who [are] undergoing medical treatment, recuperation, or therapy, [are] otherwise in medical hold or medical holdover status, or [are] otherwise on the temporary disability retired list, for a serious injury or illness." Serious injuries or illnesses that make an employee eligible for leave to take care of his or her spouse, child, parent, or next of kin are those suffered during active duty that make the service member unfit to perform the duties associated with his or her office, grade, rank, or rating. The Act defines "next of kin" as "the nearest blood relative" to an active-duty military member.

    Under the Act, employees who qualify for caregiver leave receive a combined total of 26 workweeks of leave during a single 12-month period. This means that if an employee took 12 weeks of leave (for example, for the birth and care of a newborn child) and then became eligible for caregiver leave, the employee would be able to take up to 14 weeks of additional leave. Employees can take caregiver leave intermittently.

    An employer can require that the employee take available paid leave during qualifying caregiver leave. Although the leave can be unpaid, FMLA generally requires the employer to continue employee benefits and keep the employee's position available, even if a temporary replacement is hired.

    An employer can also request certification issued by a health care provider. Sufficient certification includes information about the date on which the serious health condition commenced, the probable duration of the condition, and the appropriate medical facts within the knowledge of the health care provider regarding the condition. For intermittent leave (or leave on a reduced leave schedule) for planned medical treatment, the employee must also provide the duration and expected dates of treatment.

    The statutory language is unclear whether the six-month leave requirement renews for every 12-month leave cycle, or is only available once for each instance of serious injury or illness. If six months of leave is available every 12 months for the same injury or illness, employers may want to consider calculating FMLA eligibility based on a "rolling year," if FMLA is currently calculated on a calendar-year basis. This would help avoid having to provide more than 26 weeks in a given 12-month period if the new calendar year starts during the first 26-week leave period.

    Active-duty family-member leave.

    "Active-duty family-member leave" begins upon notification of an individual that a family member is being called to active military duty. An employee may take active-duty family-member leave for "any qualifying exigency" related to the family member's call to active duty. If an employer provides active-duty family-member leave before the Department of Labor issues regulations defining a "qualifying exigency," the employer should probably interpret the term broadly, which could mean interpreting it to include leave to assist in preparations for active duty and child care. An employer can also require certification, which would most likely be proof of call to active duty.

    Active-duty family-member leave is part of the basic 12-week leave provided under FMLA, so an employer does not need to provide additional leave if the employee exhausted his or her leave before the occurrence of a "qualifying exigency." An employee can also take active-duty family member leave intermittently, and an employer can require that the employee take available paid leave while on active-duty family-member leave.

    Despite the uncertainties in proceeding forward with the new leave amendments, to engage in best practices an employer should:

    • update policies to comply with the caregiver-leave requirements;
    • be attentive to employer policy changes that may result when the Department of Labor issues its pending regulations;
    • evaluate whether an employee is eligible for FMLA leave in every case; and
    • make sure that managers are trained to know when to provide notice of FMLA leave rights and responsibilities to employees who may be eligible for FMLA leave.