FMLA Leave for Military Family Members
The last few years have brought many changes to the Family and Medical Leave Act (FMLA). In 2008 and in 2010, the FMLA was amended by the National Defense Authorization Act (NDAA), which expanded the reach of the FMLA by granting leave under certain circumstances to employees with family members in the military. The 2008 and 2010 family military leave amendments added new leave rights for employees with family members serving in the military. In January 2009 and again in February 2013, new FMLA regulations became effective, changing the way in which employers must act to comply with the legal requirements of the FMLA. These new regulations also addressed NDAA’s addition of military family leave.
That legislation created two new FMLA benefit entitlements: 1) qualifying exigency leave under which eligible employees may take up to 12 weeks of FMLA leave for reasons related to the call to active duty of covered servicemember spouses, children, or parents; and 2) military caregiver leave, which gives employees up to 26 weeks of leave in a single 12-month period to care for a seriously injured or ill covered servicemember.
Qualifying exigency leave
An eligible employee is entitled to take up to 12 workweeks of FMLA leave per 12-month period because of any qualifying exigency arising out of the fact that the spouse, son, daughter, or parent of the employee (the military member or member) is on covered active duty or call to covered active duty status (or has been notified of an impending call or order to covered active duty).
“ Covered active duty” means duty during deployment with the armed forces to a foreign country (for a member of the regular armed forces); and duty during deployment with the armed forces to a foreign country under a federal call or order to active duty in support of a contingency operation (for a member of a reserve component of the armed forces).
Qualifying exigency FMLA leave must fit into the following categories:
- When the servicemember has received a week or less in notice of deployment (eligible for 7 calendar days or less of leave);
- For military events and related activities;
- For urgent (as opposed to recurring and routine) child-care and school activities;
- For financial and legal tasks to deal with a family member’s active duty;
- For counseling for the employee or child who isn’t already covered by FMLA;
- To spend time with the covered servicemember on rest and recuperation breaks during deployment (15 calendar days or less, depending on the time granted for R&R);
- For post-deployment activities;
- To care for a parent of the military member when the parent is incapable of self-care and the covered active duty or call to covered active duty status of the military member necessitates a change in the existing care arrangement for the parent; and
- For other purposes arising out of the call to duty, as agreed upon by the employee and employer.
Employees seeking qualifying exigency leave must give reasonable and practicable notice if the exigency is foreseeable. The notice must inform the employer that a family member is on active duty or called to active duty status, cite a listed reason for leave, and give the anticipated length of absence. Family members generally are defined broadly. A son or daughter on active duty, for example, includes an employee’s biological, adopted, or foster child, stepchild, legal ward, or one for whom the employee stood in loco parentis, regardless of age.
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Certifying qualifying exigency leave
Employers may require certification for qualifying exigency leave by requiring the employee to provide a copy of the servicemember’s active duty orders, for example. There’s an optional Department of Labor form, WH-384, for qualifying exigency certification. The regulations also allow employers to verify with a third party that an employee met with the third party (a teacher, for example) during the leave. If the employee submits a complete, sufficient certification supporting a request for the leave, the employer may not request additional information from the employee. Recertification isn’t permitted.
Military caregiver leave
Under the FMLA’s military caregiver leave provisions, an eligible employee may take up to 26 workweeks of leave during a single 12-month period to care for a covered servicemember or veteran. The employee may be a spouse, parent, child, or next of kin of a service member, who can be in the regular armed forces, Reserves, Guard, or anyone in those categories on a temporary disability retired list (TDRL). Employees may also take military caregiver leave to care for family members who sustained a qualifying injury for up to five years after they have been discharged from military service.
The service member must have a serious illness or injury incurred in the line of duty on active duty, as determined by the Department of Defense (DOD), that may render him medically unfit to perform the duties of his office, grade, rank, or rating and for which he is undergoing medical treatment, recuperation, therapy, or outpatient treatment or is on TDRL.
Employers may require certification of the need for caregiver leave from specific military health care providers. The DOL offers an optional form, WH-385, for certifying military caregiver leave. An employer must accept “invitational travel orders” (ITOs) or “invitational travel authorizations” (ITAs) issued by the DOD to family members for medical purposes as sufficient certification of the need for military caregiver leave, at least until the expiration date of the order or authorization. The government issues ITOs and ITAs so that one to three family members can immediately travel, at government expense, to the bedside of an injured servicemember, and they’re not issued routinely, so the DOL believes they’re sufficient certification. Employers may seek authentication and clarification of military caregiver certifications but may not seek second or third opinions or recertification.
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As in the case of defining a son or daughter, “parent” is defined broadly but does not include in-laws. “Next of kin” also is defined as categories of blood relatives, in order of priority, but the service member may make a written designation of a specific blood relative as next of kin, and that will control. Employers can ask employees for reasonable documentation of family relationships; a simple statement will suffice.
There’s a separate “FMLA year” for military caregiver purposes, beginning with the first date of caregiver leave and ending 12 months later. The 26 weeks of caregiver leave may be taken in a single block or intermittently. The military caregiver entitlement is determined per servicemember, and per injury. For example, Employee Evelyn may take 26 weeks of military caregiver leave for her spouse’s qualifying leg injury in year 1, and take additional military caregiver leave in year 2 for her daughter’s qualifying injury or for her spouse’s second, unrelated illness or injury. The 26-week entitlement may not be carried over from year to year. The comments to the final FMLA regulations contained examples of the detailed working of military caregiver leave in relation to regular FMLA leave, which is measured according to a calendar of the employer’s choosing.
Employees seeking caregiver leave must follow existing FMLA notice rules, including the requirement to work with employers to schedule leave without unduly disrupting operations. (This requirement doesn’t apply to qualifying exigency leave.)