CHANGES TO THE FMLA FOR MILITARY FAMILIES

By Andrea G. Chatfield

(Article originally published in Healthcare Review - Northeast Network, Issue 6, 2008 - http://www.healthcarereview.com/index.php?src=news&refno=2298&category=Columns)

It is hard enough for individuals to watch their loved ones leave home to serve military duty in Iraq, Afghanistan, or other similar trouble spots, harder still when they return with serious injuries or illnesses. However, things just got a little easier for families of military personnel in the workplace.

On January 28, 2008, the President signed into law the National Defense Authorization Act which provides the first expansion of the Family and Medical Leave Act (FMLA). The new law provides two new types of FMLA leave to qualifying employees: "caregiver leave" so the employee can provide care to an injured service member who is a qualifying relative; and "qualifying exigency leave" to employees who are family members of an individual called to active duty.

A. Caregiver Leave

Under the caregiver provisions, an employee can take up to 26 weeks of FMLA leave during a single 12-month period if he or she is a spouse, son, daughter, parent, or next of kin of a recovering service member for whom the employee is caring. A recovering service member is a member of the Armed Forces, including the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy; is in outpatient status; or is otherwise on the temporary disability retired list, due to a serious illness or injury incurred in the line of active duty. This section of the law is effective immediately.

"Next of kin," a new defined term in the FMLA, means the nearest blood relative of the servicemember. Presumably, this will now include employees who are not the "spouse," "parent," "son" or "daughter" of a servicemember, but rather may be the brothers, sisters, aunts, uncles, or grandparents, if they can show that they are the nearest blood relative.

A total of 26 weeks of combined FMLA leave must be provided in a single 12-month period. However, the single 12-month period is more than likely a fixed period of time, beginning the first day of caregiver leave. Therefore, if the employee has taken 6 weeks of FMLA for his or her own serious health condition in January and part of February of this year, they could still be entitled to 26 weeks of FMLA caregiver leave to care for an injured and recovering servicemember.

B. Qualifying Exigency Leave

Under the call to active duty leave provisions, an employee may take up to 12 weeks of FMLA leave because of a "qualifying exigency" (to be defined by the U.S. Department of Labor ("DOL")) arising 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. While this section is not effective until the DOL publishes final regulations, good faith compliance is encouraged until such time.

The DOL has not yet defined what is a qualifying exigency. However, some potential types of exigencies that have been identified in legislative commentary include: to arrange for child care; to see a child off or welcome a child home; to attend pre-deployment briefings; to attend family support meetings; and to attend reintegration briefings. Employers will be able to require certifications confirming the qualifying exigency. However, such certifications must be in a manner as prescribed by the DOL.

Qualifying exigency leave must be taken during the regular 12-month period for any other FMLA type of leave. Therefore, unlike the caregiver leave, if an employee had taken 8 weeks of leave for his/her own serious health condition, then only 4 weeks of FMLA leave would be available for a qualifying exigency leave.

C. Interplay With Other Parts of the FMLA.

During any of these leaves, the general FMLA requirements and terms apply. For example, the employer must have 50 or more employees, and the employee must be 1 of 50 employees within a 75-mile radius, in order for these rights to apply. The employee must have worked for the employer at least 12 months and have worked at least 1,250 hours within the 12 months prior to the leave. Group health coverage must be continued during these types of leaves, and the same rights to reinstatement exist as for other types of FMLA-covered leaves.

D. What Employers Need To Do Now.

The statutory changes are fraught with ambiguities for employers, and will present challenges for compliance administration. However, the first step employers must take is to update their FMLA policies, provide notice to employees of these changes, and then be on the look out for any further guidance issued by the DOL on its proposed regulations.

If an employee requests to take FMLA leave because of a family member who is in the Armed Forces or National Guard, a careful review of the new law will be necessary in order to determine if the employee qualifies for such leave, and if so, what their entitlement is. If there are any questions about what the law requires, the employer should consult with legal counsel.

Andrea G. Chatfield is a member of the Employment Law Practice Group and the Corporate Department at the law firm of McLane, Graf, Raulerson & Middleton, Professional Association. Andrea can be reached at 603-628-1341 or andrea.chatfield@mclane.com. The McLane Law Firm is the largest full-service law firm in the state of New Hampshire, with offices in Concord, Manchester and Portsmouth.