The New FMLA Regulations: Leave for Families of Military Personnel

On November 17, the United States Department of Labor published its new final rule on the Family and Medical Leave Act. The final rule, which takes effect January 16, 2009, makes sweeping changes to existing FMLA requirements and procedures—and also implements two new leave entitlements for families of military personnel.

The final rule implements amendments to the FMLA that were enacted on January 28 pursuant to the National Defense Authorization Act for FY 2008 (NDAA). The amendments provide leave due to a "qualifying exigency" to enable eligible employees to manage the affairs of family members who are called to active duty in the military. The amendments also provide military caregiver leave to enable eligible employees to care for covered servicemembers with a serious illness or injury incurred in the line of duty.

The key requirements applicable to qualifying exigency leave and military caregiver leave are covered in the following article.

To learn more about other FMLA regulation changes, see "Employers Should Update FMLA Policies to Reflect Rule Changes."

Leave Due to a Qualifying Exigency

One of the two new leave entitlements for families of military personnel is leave due to a "qualifying exigency." A qualifying exigency arises out of the fact that the employee's spouse, son, daughter or parent is a covered military member on active duty. Leave taken due to a qualifying exigency counts toward the total of 12 workweeks of leave that eligible employees may take for most other FMLA-qualifying reasons during any 12-month period designated by the employer.

For purposes of leave due to a qualifying exigency, the final rule confirms that a "son or daughter on active duty or call to active duty status" can be of any age, even though a "son or daughter" is defined for most other FMLA purposes to be under the age of 18.

Leave may be taken for one or more of the following qualifying exigencies:

• Short-notice deployment: To address any issue that arises from the fact that a covered military member is notified of an impending call or order to active duty seven or fewer calendar days prior to the date of deployment, for use during that seven-day period.
• Military events and related activities: To attend (1) any official ceremony, program or event sponsored by the military that is related to the active duty status or (2) family support or assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross that are related to the call to active duty.
• Childcare and school activities: With respect to the child of the covered military member, (1) to arrange a change to existing childcare; (2) to provide childcare on an urgent, immediate need basis; (3) to enroll in or transfer to a new school or day care facility when necessary due to the call to active duty status; and (4) to meet with school or day care staff when such meetings are necessary due to the call to active duty.
• Financial and legal arrangements: To make or update financial or legal arrangements to address the covered military member's absence, such as preparing and executing financial and health care powers of attorney, transferring bank account signature authority, or updating a will; and to act as the covered military member's representative for purposes of military service benefits.
• Counseling: To attend counseling by someone other than a health care provider for the employee, for the covered military member, or for the child of the covered military member as defined by the final rule, when the need arises due to the call to active duty.
• Rest and recuperation: To spend time, not to exceed five days of leave in each instance, with a covered military member who is on short-term, temporary, rest and recuperation leave during the period of deployment.
• Post-deployment activities: (1) To attend such official military events as arrival ceremonies and reintegration briefings during the 90-day period following termination of active duty status; and (2) to address issues related to the death of the covered military member.
• Additional activities: To address other events arising from the call to active duty status, provided that the employer and employee both agree that the event is a qualifying exigency and also agree to both the timing and duration of the leave.

Leave due to a qualifying exigency may be taken on an intermittent or reduced leave schedule, and the employer may require certification of the need for leave from the employee, which may include, among other things, a copy of the call or order to active duty upon the employee's first request for such leave. The final rule includes an optional certification form for qualifying exigency leave.

Military Caregiver Leave

Under the NDAA amendments to the FMLA, eligible employees are also entitled to up to 26 workweeks of leave during a "single 12-month period" to care for a covered servicemember with a "serious injury or illness."

A "serious injury or illness" means 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. It is not the same as a "serious health condition" for other FMLA purposes.

Coverage Limitations for Military Caregiver Leave

Leave is available to care for a covered servicemember "who has a serious injury or illness incurred in the line of duty on active duty for which he or she is undergoing medical treatment, recuperation, or therapy; or otherwise in outpatient status; or otherwise on the temporary disability retired list." Leave is not available to care for members on the permanent disability retired list.

To be entitled to leave to care for a covered servicemember, the employee must be the spouse, son, daughter, parent or "next of kin" of a covered servicemember. A "son or daughter of a covered servicemember" may be of any age. "Next of kin" is defined as the next nearest blood relative, by order of priority specified in the final rule, unless the covered servicemember designates, in writing, another blood relative as "next of kin" for purposes of military caregiver leave. In the absence of such designation, where there are multiple family members with the same level of relationship to the covered servicemember, all such family members may take military caregiver leave, either consecutively or simultaneously.

Length of Military Caregiver Leave

Although leave for any other FMLA-qualifying reason may not exceed 12 workweeks in any 12-month period, the entitlement to military caregiver leave is 26 workweeks in a single 12-month period. The "single 12-month period" in which military caregiver leave may be taken begins on the first day the employee takes leave to care for the covered servicemember and ends 12 months after that date, regardless of the method used by the employer to determine the 12-month period for any other FMLA-qualifying reason.

Although military caregiver leave is generally a one-time entitlement that does not renew each year like other types of FMLA-qualifying leave, the final rule specifies that military caregiver leave must be applied on a "per-covered-servicemember, per-injury basis." Accordingly, an employee may be entitled to take more than one period of 26 workweeks of leave, if the leave is to care for different covered servicemembers or to care for the same covered servicemember with a subsequent serious injury or illness. The employee is not entitled to an additional 26 workweeks of leave for the aggravation or complication of the initial serious injury or illness.

No more than 26 workweeks of leave may be taken within any single 12-month period even where such leave is requested to care for multiple servicemembers and even where some leave taken during the single 12-month period is requested for a different FMLA-qualifying reason. In other words, an employee who is entitled to take leave due to a different FMLA-qualifying reason during the same single 12-month period in which military caregiver leave is taken may do so, but leave taken for such other purpose may not exceed 12 workweeks. The total leave taken for any purpose during the single 12-month period may not exceed 26 workweeks overall.

Schedule and Certification

Military caregiver leave may be taken on an intermittent or reduced leave schedule if medically necessary. The employer may require the employee to obtain a certification from an authorized health care provider of the covered servicemember. The final rule includes an optional form for this purpose.

Other Requirements

Under the final rule, most of the procedures and requirements for taking and administering other types of FMLA leave apply to the new leave entitlements for families of military personnel.

For a summary of the extensive changes under the final rule to other FMLA procedures and requirements, and to review recommendations for employers implementing all aspects of the final rule, see "Employers Should Update FMLA Policies to Reflect Rule Changes."

The military family leave provisions of the FMLA were amended again in October 2009.  For information regarding 2009 amendments, see "New Federal Legislative Alters Military Family Leave Entitlements Under FMLA."

Further details are necessary for a complete understanding of the subjects covered by this summary. For this reason, the specific advice of legal counsel is recommended before acting on any matter discussed within.