Changes to employee leave provisions benefit Soldiers, Family members

By AMY L. SNYDER, OSJAOctober 7, 2009

Anyone with a Family member in the National Guard or Reserves who is suddenly called to active duty will most likely need time off from work to take care of issues related to the loved one's service.

For instance, prior to the deployment, time is needed to make alternative child care arrangements and to get legal documents, such as a Will and Power of Attorney, in order. Time off from work would also be needed when the Family member is home for rest and relaxation leave, or to attend an awards ceremony at the end of active duty service.

In another scenario, anyone with a Family member who is injured in the line of duty, will need time off from work to provide care to the loved one, flying to health care facilities in Landstuhl, Germany, to be at the bedside of a Family member with a catastrophic injury or to go with the loved one to a Warrior Transition Unit while he or she recovers. Or, time might also be needed to provide transportation or support for therapy or doctor appointments.

Recent changes to the FMLA, however, have expanded the leave provisions to benefit military Family members.

Prior to January of 2009, the ability of a Family member to take the necessary time off from work in any of the above situations was limited. An employer was not required to give leave to deal with issues related to a sudden deployment of a National Guard or Reserve Family member. Leave to provide care to an injured Soldier was limited to 12 weeks under the Family Medical Leave Act.

The FMLA was originally passed in 1993 to ensure that individuals are able to take extended leave from work for either personal or Family medical reasons without the fear of having their employment terminated. The FMLA allows eligible employees to take up to 12 weeks of leave during any 12-month period for 1) the birth or adoption of a child, 2) in order to care for a Family member with a serious health condition, or 3) because of a serious health condition of the employee.

In January 2009, President George W. Bush signed into law the National Defense Authorization Act, which amended the FMLA to provide two additional leave entitlements for military Families. These two types of leave are "qualifying exigency leave" and "military care giver leave."

General FMLA rules

The military Family leave provisions only apply to individuals who are otherwise covered by the FMLA. To be covered by the FMLA, a person must be employed by a public agency or a private employer with greater than 50 employees. Additionally, the employee must have worked for the employer for a total of 12 months and have worked at least 1,250 hours during the previous 12 months.

The FMLA does not require that an employer provide paid leave. An employer may require that the individual use accrued paid leave for a portion of the leave period. The FMLA requires that the employer allow the individual to return at the end of the leave period to the same or an equivalent position without loss in pay or benefits.

Qualifying exigency leave

"Qualifying exigency leave" is the first of the two new military Family leave provisions. It may be taken for a qualifying exigency that arises from a covered military member's active duty or call to active duty status. The provisions under qualifying exigency leave do not apply to Family members of service members in the regular armed forces.

A "covered military member" is the employee's spouse, son, daughter or parent. In addition to biological relatives, this also includes adoptive, foster and stepchildren or parents. It does not include in-laws.

"Active duty" or "call to active duty status" refers to a member of the National Guard or Reserves who is under a call or order to active duty in support of a contingency operation. It also refers to a member of the National Guard or Reserves who has been notified of an impending call or order to active duty.

The list of "qualifying exigencies" encompasses a wide range of categories. It includes: issues relating to a short notice of deployment, military events and activities, making financial and legal arrangements to address the service member's absence, attending counseling, arranging childcare, spending time with a service member who is on rest and recuperation leave, and attending post-deployment activities for up to 90 days following the termination of active duty status.

Individuals requesting leave under this provision must provide the employer with reasonable notice. The employer may require a copy of the military member's active duty orders and certification of the need for the exigency leave. The employer is permitted to contact the Department of Defense to confirm the active duty status of the service member.

The total amount of leave available to an individual under this provision is 12 weeks for every 12-month period. The leave does not have to be taken all at once, but may be taken intermittently.

If the covered military member's active duty status extends for more than one FMLA leave year, the eligible employee is eligible to take an additional 12 weeks of exigency leave during the subsequent 12-month period.

Military caregiver leave

"Military caregiver leave" is the second of the two new military Family leave provisions. It may be taken by an eligible employee to care for a covered service member with a serious injury or illness.

An "eligible employee" is the spouse, child, parent or next of kin of a covered service member. This also includes adoptive, foster and stepchildren or parents. It does not include in-laws.

A "covered service member" is a current member of the armed forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation or therapy, or is on the temporary disability retired list, for a serious injury or illness incurred in the line of duty on active duty. A "serious injury or illness" is one that renders the service member unfit to perform his or her duties.

Individuals requesting leave under this provision should give the employer 30 days advance notice if possible. If the need for leave was not foreseeable, the employee should give notice as soon as practicable. The individual must also provide the employer with certification by an authorized health care provider of the covered service member verifying the need for the leave.

Under this provision, an eligible employee may take up to 26 weeks of military caregiver leave during a single 12-month period to care for the covered service member. The leave is "per-service member, per-injury." In other words, additional leave could not be taken under this provision for the same service member during a subsequent 12-month period for the same injury.

In sum, the two additions to the FMLA allow military Family members greater flexibility in taking leave from work in order to handle issues related to a deployment of a Reserve or National Guard Family member, or to provide extended care to a servicemember injured in the line of duty.

For more information on military specific provisions of the FMLA and eligibility rules, visit http://www.dol.gov/esa/whd/fmla/.

Personnel eligible for legal services may also contact the Client Services Division, Office of the Staff Judge Advocate, 410-278-1583 or stop by building 4305, 3rd floor, room 346. Attorney consultations require an appointment.