New DOL Regulations Expand & Clarify Military Family Leave Rights

November 17, 2008

Today, the Department of Labor (DOL) issued final regulations that both expand and clarify the military family leave requirements that were added to the federal Family and Medical Leave Act (FMLA) in January of 2008 under the National Defense Authorization Act (NDAA).  This e-update explains some of the more significant changes affecting employers under the new military family leave rules. 

Military Exigency Leave 

What is the basic leave entitlement?  An eligible employee whose spouse, child, or parent is on active duty (or has been notified of an impending call or order to active duty) is entitled to up to 12 workweeks of unpaid leave in a 12-month period to deal with “any qualifying exigency” related to or affected by the family member’s call to service or active duty.  Any period of leave taken for military exigency leave is counted against the employee’s overall 12-week leave entitlement.  For example, if an employee takes 4 weeks of exigency leave, she has 8 weeks of FMLA left in that same 12-month period to provide care for a family member or to care for herself in the case of a serious health condition.

Who is Covered?  An otherwise FMLA-eligible employee will be qualified for exigency leave if his or her spouse, son, daughter or parent is on active military duty in the National Guard or Reserve, or has been called to active duty in the National Guard or Reserve, in a “contingency” military operation. 

Military exigency leave is only available to family members of Reserve components or the National Guard, and also to certain retired members of the Regular Armed Forces and the retired Reserve.  The leave entitlement does not extend to family members of the Regular Armed Forces on active duty status because those military members are employed by the federal government.  Reservists and National Guard members are those who work elsewhere, but are willing to allow their lives to be disrupted by a call to active duty.  It is this unexpected disruption that is the focus of exigency leave.

Exigency leave applies only to a federal call to active duty.

A military operation will meet the “contingency” definition if (1) it has been designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force; or (2) results in the call or order to, or retention on, active duty members of the National Guard and Reserve under the law during a war or national emergency declared by the President or Congress.

A “son or daughter” on active duty or called to active duty includes a child of any age.

What qualifies as an “exigency”?  The following eight categories of exigency are identified:

  • Short Notice Deployment.  This exigency occurs when a covered military member is notified of an impending call or order to active duty 7 or fewer calendar days prior to the date of deployment.  Leave taken by an employee for this purpose may be used for a period of 7 calendar days, beginning on the date the covered military member is called to active duty.  This leave may be taken by an employee without the employee demonstrating exigency.  Leave taken outside of these 7 days must fit another exigency category.

  • Military Events and Related Activities.  This leave may be taken to attend a military event, such as an official ceremony, program or other event sponsored by the military, or to attend family support and assistance programs and informational briefings sponsored by the military, military service organizations or the American Red Cross that are related to the active duty or the call to active duty status.

  • Child Care and School Activities.  Leave may be taken to arrange alternative child care when the call to active duty status necessitates such a change.  This leave is not to be taken for routine child care events, but is to provide urgent and non-routine child care when the need arises because of the call to duty.  This type of leave may also be taken to attend school activities regarding a child (like school discipline meetings, parent-teacher conferences or counseling meetings) when such meetings are caused by the active duty or call to duty.

  • Financial and Legal Arrangements.  Leave may be taken to attend to financial or legal arrangements, such as arranging power of attorney, transferring bank accounts, obtaining military identification and addressing benefit issues related to the call-up.  This leave is not available to handle routine matters, such as paying bills.

  • Counseling.  Leave may be taken to seek counseling related to the call to duty or active duty. 

  • Rest and Recuperation (R&R) Leave for a Military Member.  Up to 5 days of leave may be taken by an employee to spend time with a covered military member who is on R&R leave during a period of deployment.  The 5 days may be taken by the employee for each period of R&R leave given to the covered military member.

  • Post-Deployment Activities.  Leave may be taken during the 90-day period following a covered military member’s termination of active duty to address issues that may arise following deployment, including dealing with the death of a military member or attending arrival ceremonies and reintegration briefings.

  • Additional Activities.  This category is a “catch-all” and is meant to cover leave for other events that arise out of the covered military member’s active duty, provided that the employer and employee agree that the leave will qualify as an exigency, and agree to the timing and duration of such leave.

What type of certification may employers require?  The DOL has created an optional certification form that employers may use.  As part of the certification process, employees must provide specific information, such as a copy of the covered military member’s orders or call to duty, and the dates of the military member’s active duty service.  Additionally, an employee may be required to provide a signed statement or description of facts regarding the exigency underlying each leave request. 

Employers may require employees to provide appropriate contact information when an exigency involves the employee meeting with a third party, and may contact this third party directly without employee authorization.  The employer may also contact an appropriate unit of the Department of Defense to request verification that a covered military member has been called to active duty.

There is no recertification process, and second or third opinions are not allowed.

Must the employer continue paid health benefits?  Although this “exigency” leave is unpaid, employers are required to continue the employee’s existing paid health coverage during the entire period of protected leave, up to 12 weeks.

May leave be taken intermittently?  Yes.  This leave may also be taken intermittently or on a reduced leave schedule.  A showing of medical necessity is not required.

What type of notice may employers require?  The 30-day notice rule for other types of FMLA leave does not apply to exigency leave.  Employees are only required to provide “such notice to the employer as is reasonable and practicable.”

What about spouses employed by the same employer?  The spousal aggregation rule does not appear to apply to exigency leave.

Service Member Care Leave

What is the basic leave entitlement?  An eligible employee who is the spouse, son, daughter, parent, or “next of kin” of an injured, covered service member may take up to 26 workweeks of unpaid leave in a single 12-month period to provide care for that family member. 

A different 12-month period applies to service member care leave than for other forms of FMLA leave.  The 12-month period applicable to service member care leave begins on the first day the eligible employee takes such leave and ends 12 months after that date, regardless of the separate 12-month period used to determine other FMLA leave.  This means that employers may have to apply at least two different 12-month periods for the same employee.

The final regulations also clarify that eligible employees are entitled to a combined total of 26 workweeks of service member care leave and 12 weeks of leave for any other FMLA-qualifying event. 

How is the 26-week period applied?  According to the final regulations, the 26-week period is applied on a “per-service member, per-injury” basis.  This means that an eligible employee may take 26 weeks of leave to care for one covered service member in a single 12-month period, and then take another 26 weeks of leave in a different 12-month period to care for another covered service member, or to care for the same covered service member with a subsequent serious injury or illness. 

Additionally, even after an employee has exhausted his 26-week service member care leave entitlement, the employee may still be entitled to use his normal 12-week FMLA leave entitlement to provide care to the service member due to the same injury or illness.  If an employee is taking leave that qualifies both as service member care leave and leave to care for a family member with a serious health condition, the employer should designate the leave as covered service member leave in the first instance.

Who is the “next of kin”?  “Next of kin” is defined as the service member’s nearest blood relative, other than the spouse, parent, son or daughter, in the following order of priority:  (1) blood relatives who have been granted legal custody of the service member by court decree or statutory provision; or (2) brothers, sisters, grandparents, aunts, uncles and first cousins, unless the service member has specifically designated, in writing, another blood relative for purposes of this leave.  A service member may make such designation in the form of a simple statement.  In the absence of a designation, all family members sharing the closest level of relationship (such as 3 brothers) will be considered next of kin. 

Who is a covered service member? A “covered service member” is any member of the regular Armed Forces, or the National Guard or Reserves, who is undergoing medical treatment, recuperation or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list for a serious injury or illness.  Unlike military exigency leave, service member care leave is available to family members of the Regular Armed Forces and the National Guard and Reserve.  The term “covered service members” does not include retired military service members unless they are on the temporary disability retired list, nor does it include discharged military members.

As with exigency leave, “son or daughter” for purposes of service member care leave includes a child of any age.

Notably, the covered service member need not have a “serious health condition” as currently defined in the FMLA.  Rather, the individual need only have an injury or illness incurred on active military duty that renders him or her unfit to perform the duties of his or her “office, grade, rank or rating.”

What type of certification may employers require?  The DOL has created an optional certification form that employers may use.  The certification may be completed by a Department of Defense (DoD) healthcare provider, a VA healthcare provider, a DoD TRICARE authorized provider, or a DoD non-network TRICARE authorized provider. 

The final regulations require employers to accept DoD-provided “invitational travel orders” (IVOs) or “invitational travel authorizations” (IVAs) in lieu of the optional certification forms.  Employers are required to accept such documents because IVOs and IVAs are provided only in the case of severe injury.

As with exigency leave, there is no recertification process, and second and third opinions are not allowed.

Must the employer continue paid health benefits?  Yes.  Although this leave is unpaid, employers are required to continue the employee’s existing paid health coverage during the entire period of protected leave. 

May leave be taken intermittently?  Yes.  This leave may be taken intermittently or on a reduced leave schedule when medically necessary.

What type of notice may employers require?  If the need for leave is foreseeable, the employee must provide 30 days’ prior notice or give notice as soon as practicable. 

What about spouses employed by the same employer?  The aggregation rule for spouses under service member care leave is different than under normal FMLA rules.  Spouses employed by the same employer are limited to a combined total of 26 weeks of service member care leave, or any combination of such leave and traditional FMLA leave, in a single 12-month period.  The “single 12-month period” for this aggregation rule is the 12-month period that begins on the first day the eligible employee takes such leave and ends 12 months after that date.