Recent Publications
June 20, 2008
ALP: What should an employer know about the new “Military Family Leave”?
Catherine
M.
Stevens
On January 28, 2008, President Bush signed into law the National Defense Authorization Act for Fiscal Year 2008. One section of the NDAA amended the Family and Medical Leave Act to provide eligible employees with two important new leave rights related to military service.
Since 1993, the Family and Medical Leave Act has required covered employers to provide up to 12 weeks of unpaid, job-protected leave to eligible employees for certain family and medical reasons. The FMLA permits employees to take leave on an intermittent basis or to work a reduced schedule under certain circumstances for any of the following reasons:
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to care for the employee’s child after birth, or placement for adoption or foster care;
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to care for the employee’s spouse, son or daughter, or parent who has a serious health condition; or
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for a serious health condition that makes the employee unable to perform his/her job.
The amended FMLA provides two new categories for which an eligible employee is entitled to job-protected leave.
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.” Congress did not define “qualifying exigency,” but has left the job to the Department of Labor (DOL). 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. At present, the DOL has not yet issued regulations, but some possible examples of when leave must be provided include:
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making arrangements for childcare required due to the service member’s absence;
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making financial and legal arrangements to prepare for or address the service member’s absence;
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attending counseling related to the service member’s active duty;
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attending official ceremonies or programs where the military requests participation of the family member;
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attending to farewell or arrival arrangements for the service member; and
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attending to matters associated with 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 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.
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. This is a significant expansion of the usual 12 weeks of job-protected leave allowed by the FMLA for other qualifying reasons. An employer’s duty to provide this type of “caregiver” leave began immediately upon becoming law on January 28, 2008.
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 an injury 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 an outpatient, or is otherwise on the temporary disability retired list.
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. In order to assist employers with posting the new provisions of the FMLA providing for military family leave, the DOL has made a notice available on its website.
Catherine Stevens (Counsel/Lexington) has spent her legal career as a litigator. She has practiced at all levels of the state and federal courts and represents employers in all phases of employment litigation, including advising clients on the best way to handle the discharge and discipline of employees.