On January 16, 2009, a number of new and amended Family and Medical Leave Act (“FMLA”) regulations took effect including changes to a number of provisions, definitions, and forms. One of the new provisions to the FMLA involves two types of military-related FMLA leaves: “qualifying exigency” leave and “serious injury or illness” leave.
Military-Related “Qualifying Exigency” Leave
Under the “qualifying exigency” leave, an eligible employee may take a FMLA leave to handle the “affairs” related to the call-up of a spouse, parent, or child to a contingency operation. Thus, this type of leave is available to eligible employees whose family members are National Guard or Reserves members, or retired military who are on active duty, called to active duty, or are notified that they will be called to active duty in support of a “contingency operation.” Contingency operation is defined in various statutes governing military service. This type of leave is not available to regular members of the Armed Forces and it is normally not available to members of state militias, unless they are called up in support of a US operation.
The regulations include several categories of “qualifying exigencies”: short-notice (7 days or less), deployment, military events and related activities (such as briefings), child care and school activities, financial and legal arrangements, counseling, rest and relaxation (“R&R”), and post-deployment activities (including debriefings or funeral services). Child care, school activities, financial and legal arrangements, and counseling must be related to the duty or call to duty. The R&R leave permits eligible employees to spend time with the covered service member and does not require that any “affairs” be handled. However, this one type of qualifying exigency leave is limited to five days per R&R period. In addition to all of these types of leaves, the regulations allow employees and employer to mutually agree that other types of absences can be “qualifying exigencies.”
It should be noted: (1) qualifying exigency leave counts against an employee’s 12-week per 12-month total allotment of all other FMLA leaves; (2) intermittent and reduced schedule leaves are available; and (3) an employer may request documentation of the need for qualifying exigency leave.
Military-Related “Serious Injury or Illness” Leave
The “serious injury or illness” leave involves leave available to an eligible employee to take time off to care for a covered service member with a serious injury or illness incurred in the line of duty “while on active duty” that “may render the service member medically unfit to perform the duties of his or her office, grade, rank or rating.” This type of leave is available for a maximum of 26 weeks “in a single 12-month period” per covered service member and per injury or illness. Additional leaves of this type are available in subsequent 12-months periods for different covered service members or for the same covered service member if he or she contracts a new qualifying injury or illness. Thus, aggravations of pre-existing injuries or illnesses do not count as “new” injuries or illnesses.
Serious injury or illness leave is available to eligible spouses, parents, children, or next-of-kin of all active members of the Armed Forces, the National Guard, and the Reserves, and all members of these services who are on the temporary disabled retired list. This leave is not available for relatives or service members who are on the permanent disabled retired list.
Please note that the military-related serious injury or illness “leave year” is measured differently from the leave year for all other types of FMLA leave. The leave year for military-related “serious injury or illness” leave must begin on the first day that the employee begins this type of leave, even if the employer uses a different “leave year” for other FMLA leaves.
It must also be noted that: (1) serious injury or illness leave that is not taken in the “single 12-month period” is forfeited; (2) intermittent and reduced schedule leaves are available for this type of FMLA leave; (3) the employer may request certification of the familial relationship and of the medical condition [note that the military-related serious injury or illness certification form is different from the medical certification form used for standard FMLA leave requests]; and (4) although an employer may seek “clarification” of information on the covered service member’s medical certification, it may not seek a second or third opinion, or request recertification.
Employers will need to update their written FMLA policy to include the military-related qualifying-exigency and serious injury or illness leaves and republish the policy. If the FMLA policy is part of a collective bargaining agreement, the union’s concurrence should be obtained – although the union would have no right to withhold such concurrence. If you need assistance updating your FMLA policy so it complies with the new regulations or you have questions about the military-related FMLA leaves and the other changes made to the FMLA, our Employment and Labor attorneys will be able to assist you.