Family and Medical Leave Act Amendments
New Military Leave Entitlements
By Richard G. Schott, J.D.
As we settle into this new decade, our country’s military embarks on its tenth year of the mission to combat terrorism in Iraq and Afghanistan. With that commitment comes immense sacrifice, by both military personnel and their families and other loved ones. It also comes with an expense to those who employ these modern-day patriots and those close to them. Among the sacrifices required by these employers is the legal obligation to be without certain employees because of specified military obligations and other situations brought on by military service. The 2009 amendments to the Family and Medical Leave Act (FMLA) contained in the National Defense Authorization Act for Fiscal Year 2008 (2008 NDAA),1 which became effective on January 16, 2009, add to this obligation. The 2009 amendments were expanded again by amendments contained in the National Defense Authorization Act for Fiscal Year 2010 (2010 NDAA).2 This article briefly discusses the provisions contained in the original 1993 FMLA legislation;3 and it then scrutinizes the provisions contained in the new amendments, which create new categories of FMLA leave and the concurrent obligations imposed on employers who must recognize this leave entitlement.
THE 1993 FAMILY AND MEDICAL ACT
The Family and Medical Leave Act as originally signed into law in 1993 entitles eligible employees to a minimum of 12 weeks unpaid leave during any 12-month period because of their own serious health condition, to care for certain family members who have a serious health condition, or because of the birth or adoption of a child or the placement of a foster child with an eligible employee.4 Over the course of the past 17 years, most employers have become cognizant of their obligations under the statute. They also have become aware of the important definitions contained in the legislation, as well as when required elements to meet the definitions have been satisfied. For example, an eligible employee is one who has been employed for at least one year by the employer and who has performed at least 1,250 hours of service with the employer during the previous 12-month period.5 Family members include a son or daughter—defined as a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis—who is either under 18 years of age or 18 years of age or older and incapable of self-care because of a mental or physical disability.6 Employers and medical personnel have become familiar with the statutory meaning of serious health condition7 that often triggers an employee’s rights under the FMLA. These basic principles contained in the original legislation have not been altered by the recent amendments. Other important features of the original FMLA legislation that have remained unchanged by the recent amendments are the obligation of the employer to allow for intermittent use of leave when medically necessary,8 as well as the obligations imposed on the employee to provide reasonable notice (when possible)9 and to provide certification from a health-care provider when required by the employer.10
Special Agent Schott is a legal instructor at the FBI Academy.
Perhaps the most commonly misunderstood provision contained in the original legislation is that the requirement to allow an FMLA-protected absence from work is not necessarily a paid absence.11 Whether the absence is compensated is generally determined by the particular employer’s paid-leave policy.12 This feature of the FMLA also was unaffected by the recent amendments. While the amendments did not alter the landscape of the traditional FMLA situations, they have created new situations entitling eligible employees to FMLA-protected absences from their jobs on account of a family member’s military service.
THE 2009 AND 2010 AMENDMENTS
The National Defense Authorization Act for FY 2008 expanded the FMLA by creating two new military family leave entitlements—namely, the qualifying exigency leave category and the military caregiver leave category. Employers must become familiar with these two occurrences now entitling employees to take leave under the FMLA.
The first of the two new categories is known as qualifying exigency leave. It is designed to allow family members of deployed military personnel to take time away from work to provide for the exigencies that arise out of a military deployment. Like other typical FMLA absences, this category of leave is limited to up to a total of 12 workweeks of unpaid leave during the normal 12-month period established by the employer, and it is to be calculated along with other FMLA-protected absences when calculating continued eligibility.13 Also like other FMLA leave, qualifying exigency leave is triggered only when the deployed military member is the employee’s spouse, son, daughter, or parent.14 While the 2008 NDAA only made qualifying exigency leave available based on the deployment of a member of the National Guard or Reserves, the 2010 NDAA expanded its availability to employees whose deployed relatives are members of the regular Armed Forces as well.15 Before exploring the different exigencies covered by the new statutory provision, it is important to recognize that many of the exigencies arising out of a deployment may occur prior to or following the actual deployment. The language of the amendment provides for this by stating that the leave may be taken while “the spouse, son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces.”16
When it has been determined that an employee is entitled to qualifying exigency leave due to a loved one’s call to active duty, the exigencies they are allowed to resolve are very inclusive. The secretary of labor’s seemingly exhaustive list of potential exigencies include, but are not limited to
- Military events and related activities—for example,
1) to attend any official ceremony, program or event sponsored by the military that is related to the deployment; or 2) to attend family support or assistance programs and informational briefings sponsored or promoted by the military...or the American Red Cross that are related to the deployment;
- Childcare and school activities—for example, 1) to arrange for alternate childcare when the deployment necessitates a change in the existing childcare arrangement; or 2) to enroll in or transfer to a new school or day care facility a biological, adopted, or foster child, a stepchild, or a legal ward of the covered military member; or 3) to attend meetings with staff at a school or a day care facility, such as meetings with school officials regarding disciplinary measures, parent-teacher conferences or meetings with school counselors, for a biological, adopted, or foster child, a stepchild, or a legal ward of the covered military member;
- Financial and legal arrangements—for example, to make or update financial or legal arrangements such as preparing or updating a will;
- Rest and recuperation—to spend time with a covered military member who is on short-term, temporary, rest and recuperation leave during the deployment, up to 5 days of leave for each instance of rest and recuperation;
- Postdeployment activities—for example, 1) to attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military for a period of 90 days following the deployment; or 2) to address issues that arise from the death of the military member, such as meeting and recovering the body and making funeral arrangements;
- Additional activities—to address other events which arise out of the deployment provided that the employer and employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of the leave.17
Not only are the potential exigencies far-reaching, they can obviously occur before, during, and after the actual deployment of the military member. They also might require intermittent absences from an employee’s job, rather than a continuous absence.'
As the name of this type of FMLA leave implies, the absence from work may not allow for much, if any, advance notice depending on the nature of the exigency. For this reason, when employees are entitled to qualifying exigency leave, they are only required to provide notice to their employer as is reasonable and practical.18 Logically, the requisite 30-day notice requirement applicable to some other FMLA situations19 often is inapplicable in this particular context.
One other notable difference contained in the regulations implementing the new 2008 NDAA amendments (including the qualifying exigency leave provision) not found in the more traditional leave entitlements under the FMLA is the status of an employee’s child. Typically, under FMLA provisions, an employee can only invoke FMLA for a son or daughter under 18 years of age or one who is 18 years of age or older and incapable of self-care because of a mental or physical disability.20 Under the amendments providing for the military leave categories, a “‘son or daughter on active duty or call to active duty status’ means the employee’s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the employee stood in loco parentis, who is on active duty or call to active duty status, and who is of any age.”21 The second of the two new military categories of leave—military caregiver leave—created by the 2008 NDAA amendments offers even more deviation from past categories of FMLA leave.
Military Caregiver Leave
Military caregiver leave is the second of the two new military leave provisions now found in the FMLA. Its inclusion in the legislation was based on a recommendation of the President’s Commission on Care for America’s Returning Wounded Warriors22 and is triggered by the unfortunate situation when a family member must help a wounded soldier in his return home. While this is a most difficult situation for the returning soldier, as well as his family, it also imposes obligations on employers never before contemplated by the terms of the FMLA.
First, an eligible employee who is the spouse, son, daughter, parent, or next-of-kin of a covered servicemember is entitled to this type of leave.23 The next-of-kin recognition is unique to the military caregiver leave category. Its meaning, “used with respect to an individual, means the nearest blood relative of that individual.”24 The regulations accompanying the new legislation prioritize those who may satisfy this definition: blood relatives who have been granted legal custody of the servicemember, brothers and sisters, grandparents, aunts and uncles, and first cousins. This lineage applies unless servicemembers have designated in writing another blood relative as their nearest blood relative for this FMLA purpose. Employers should be aware that when there has been no such designation and there are multiple family members with the same level of relationship to the servicemember, all such family members are considered the next of kin. They each, then, are entitled to FMLA leave to provide care, either consecutively or simultaneously. For example, if a servicemember has three siblings and has not designated a blood relative to provide care, all three siblings would be considered the next of kin.25
The reason these family members, or next of kin, are allowed to take FMLA leave under the military caregiver leave provision is to care for a member of the Armed Forces, “including a member of the National Guard or Reserves...who has a serious injury or illness that was incurred in the line of duty on active duty and that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating and for which he or she is undergoing medical treatment, recuperation, or therapy....”26 The 2010 NDAA expanded the eligibility of this type of leave for employees to care for veterans of the military as long as the injury or illness was incurred in the line of duty on active duty (or it existed before the beginning of the active duty and was aggravated by service in the line of duty on active duty) and manifested itself before or after the member became a veteran.27 Veterans must have been members of the military during the period of 5 years preceding the date on which they underwent medical treatment, recuperation, or therapy.28 While the omitted portions of the amendment discuss other qualifying conditions for this leave, this category of leave is clearly meant to provide for the care of our soldiers injured in the line of duty while on active duty—the often tragic battlefield injury. Thus, this definition of serious injury or illness is clearly not synonymous with the more traditional FMLA definition of serious health condition contained in the original FMLA legislation.29 Recognizing the unique and, hopefully, isolated occurrence that gives rise to military caregiver leave entitlement makes the major difference from other types of FMLA leave more understandable.
When employees find themselves in the unenviable position of being eligible to take military caregiver leave under the FMLA, they are entitled to a total of 26 workweeks of leave during a 12-month period to care for the servicemember.30 This unique category of leave affords up to 26 weeks off and requires employers to be without employees for that half of a year. Furthermore, because of the nature of the situation, the use of this type of leave triggers a new 12-month period for FMLA purposes. As will be discussed, up to 12 weeks of these 26 weeks can be for more traditional FMLA purposes. However, if some or all of the usual 12-week allotment has been used by the employee at the beginning of the 12-month period, the 26-week entitlement would be reduced accordingly until the end of the 12-month period normally followed by the employer. The regulation accompanying this new leave provision describes this time as a “single 12-month period.” Therefore, it begins on the first day the employee takes leave to care for the servicemeber and ends 12 months after that date, regardless of the method used by the employer for other FMLA-qualifying reasons. Furthermore, if an employee does not take all of the 26 weeks entitlement during this single 12-month period, the remaining part of the 26 weeks is forfeited.31
While this provision contemplates a single 12-month period, the regulation does make clear that an employee may be entitled to take more than one period of 26 workweeks of leave if the leave is to care for a different servicemember or to care for the same servicemember who suffers a subsequent serious injury or illness. In no circumstance, however, is the employee entitled to more than 26 workweeks of leave within any single 12-month period.32
Finally, the new provisions anticipate employees being entitled to military caregiver leave—as well as other, more traditional types of FMLA leave—during the same period of time. In that situation, it is clear that the employee is entitled to a combined total of 26 weeks of leave during that single 12-month period and that no more than 12 of those weeks can be for the more traditional qualifying reason. Thus, for example, an eligible employee may, during the single 12-month period, take 16 weeks of FMLA leave to care for a covered servicemember and 10 weeks of FMLA to care for a newborn child. But, the employee may not take more than 12 weeks of FMLA leave to care for the newborn child, even if the employee takes fewer than 14 weeks of FMLA leave to care for a covered servicemember.33
While some of the features of this new variety of FMLA leave are unique to it, there is consistency with past FMLA provisions relating to the employer who employs both a husband and wife. If the same employer employs both a husband and wife who are eligible for military caregiver leave, the aggregate of their leave entitlement is 26 workweeks. If the couple takes military caregiver leave in conjunction with FMLA leave due to the birth, adoption, or placement of a child with the couple (or to care for a sick parent), their total leave entitlement remains at 26 weeks, with no more than a total 12 of those weeks combined due to the birth, adoption, or placement of a child with the couple (or to care for a sick parent).34 This is consistent with the long-standing limitation of 12 weeks total of FMLA entitlement for couples employed by the same employer for the birth, adoption, or placement of a child with the couple.35
Among the purposes of the original Family and Medical Leave Act, as noted by Congress, was “to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity, and to accomplish these purposes in a manner that accommodates the legitimate interests of employers.”36 It is beyond dispute that the needs of families today often include situations involving military service to our country. While loved ones serve in the full-time military, the National Guard, and Reserve units, others remain to work at their jobs and to take care of their families. The 2009 and 2010 amendments to the FMLA explicitly recognize these continuing strains being placed on military families. The two new categories of leave created in the amendments—qualifying exigency leave and military caregiver leave—are designed to ease the strains in such a way that accommodates the legitimate interests of employers. The 26-week leave entitlement of the military caregiver leave variety especially may impose quite a sacrifice on the part of certain employers. It pales in comparison, however, to the sacrifice undertaken by the family that finds itself in the position to be entitled to such leave. The amendments, like the original FMLA legislation before them, appear to have created a careful balance between the needs of employees and the interests of employers.
1 Public Law 110-181.
2 Public Law 111-84.
3 For a thorough discussion of the basic provisions found in the FMLA, see R. Schott, “The Family and Medical Leave Act,” FBI Law Enforcement Bulletin, January 2006, 25-32.
4 29 U.S.C. § 2601, et seq.
5 29 U.S.C. § 2611.
6 29 U.S.C. § 2611(12).
7 29 U.S.C § 2611 defines the term serious health condition as an illness, injury, impairment, or physical or mental condition that involves A) inpatient care in a hospital, hospice, or residential medical care facility or B) continuing treatment by a health-care provider.
8 29 U.S.C. § 2612(b)(1). Use of intermittent leave for parental bonding is within the discretion of the employer.
9 29 U.S.C. § 2612(e).
10 29 U.S.C. § 2613.
11 29 U.S.C. § 2612(c).
12 29 U.S.C. § 2612(d)(1) and (2).
13 Supra note 4.
14 29 U.S.C. § 2612(a)(1)(E).
15 29 U.S.C. § 2611 (14)(A) and (B).
16 29 U.S.C. § 2612 (a)(1)(E), emphasis added.
17 29 C.F.R. § 825.126(a).
18 29 U.S.C. § 2612(e)(3).
19 29 U.S.C. § 2612(e)(1) and (2).
20 29 U.S.C. § 2611(12).
21 29 C.F.R. § 825.126(b)(1), emphasis added.
23 29 U.S.C. § 2612(a)(3), emphasis added.
24 29 U.S.C. § 2611(17).
25 29 C.F.R. § 825.127.
26 29 U.S.C. § 2611 (15) and (18), emphasis added.
27 29 U.S.C. § 2611 (18)(B).
28 29 U.S.C. § 2611(15)(B).
29 29 U.S.C. § 2611 (11).
30 29 U.S.C. § 2612 (a)(3), emphasis added.
31 29 C.F.R. § 825.127(c)(1).
32 29 C.F.R. § 825.127(c)(2).
33 29 C.F.R. § 825.127(c)(3).
34 29 U.S.C. § 2612(f)(2).
35 29 U.S.C. § 2612(f)(1).
36 29 U.S.C. § 2601(b)(1) and (3).