Expanded FMLA focuses on military families

In January, President Bush signed into law legislation expanding the Family Medical Leave Act, or FMLA, to include leave related to a family member’s military service.

This was the first time since FMLA was enacted 15 years ago that it has been expanded in any way.

The change has two major components. It grants employees up to 26 weeks of unpaid leave to care for a family member in the military who has incurred a serious illness or injury. It also allows employees to take their current 12-week FMLA leave entitlement for “any qualifying exigency” arising out of the fact that a family member is on or has been notified they are being called to active duty in support of a contingency operation.

It is important to note that the law only applies to employees who work for an employer with 50 or more employees, working within a 75-mile radius of the employee’s work site, have worked for the employer for at least one year and have worked at least 1,250 hours during the measuring 12-month period.

If an employee does qualify for FMLA leave, this expansion of the law, upon enactment, immediately gives the employee the right to a total of 26 work weeks of leave during a single 12-month period to “care for a spouse, son, daughter, parent or next of kin” who is “a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation or therapy, or otherwise is in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness” that occurs while the service member is “in the line of duty on active duty … that may render the member medically unfit to perform the duties of the member’s office, grade, rank or rating.”

There are several differences between this leave entitlement and other FMLA leave entitlements. Specifically, this leave entitlement is for up to 26 weeks during a 12-month period, as opposed to 12 weeks, it is available to care for “next of kin” and it is only available during a single 12-month period.

This law defines next of kin as the “nearest blood relative” of the service member. This definition may make life somewhat difficult for employers in that it leaves the employer having to determine whether or not an employee is the service member’s “nearest blood relative.” And it provides no guidance as to any limits on this leave when multiple family members have the same “next-of-kin” relationship and are working for the same or different companies.

This entitlement to 26 weeks of leave also allows the leave to care for a service member “for a serious injury or illness,” rather than for a “serious health condition” as required for other FMLA leave. A “serious illness or injury” is defined as an injury or illness incurred by the service member “in (the) line of duty (while) on active duty … that may render the member medically unfit to perform the duties of [their] office, grade, rank or rating.”

But other than the fact that the illness or injury must occur while on active duty and while in the line of duty, it is not clear what other differences there will be between a “serious illness or injury” and a “serious health condition.” Generally it is believed that a “serious illness or injury” required for this leave will be more restrictive.

Whether or not the illness or injury occurred “in the line of duty” also needs to be examined. For example, while the need to care for a daughter with a pregnancy-related medical condition may qualify for the more usual 12 weeks of FMLA leave entitlement, even if the pregnancy results in a serious illness that occurs while the service member is on active duty, it may not have occurred in the line of duty and, therefore, will not qualify the employee for this expanded 26 weeks of leave entitlement. However, one can certainly imagine situations in which a pregnancy-related illness or injury might occur in the line of duty. So, when considering FMLA leave, you will have to carefully consider the facts of each situation to determine what, if any, leave is available to the employee under this section.

An employee can take this 26-week FMLA leave intermittently or on a reduced leave schedule, but the law specifically provides that this expanded 26 weeks of leave entitlement shall only be available during a “single” 12-month period. In other words, during any 12-month period, the employee’s maximum entitlement is 26 weeks of FMLA.

‘Qualifying exigency’

The new law also expands the reasons for which employees can use their 12 weeks of FMLA leave to include “any qualifying exigency … 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.”

This part of the legislation is not effective until the U.S. Department of Labor issues regulations defining the phrase “any qualifying exigency.” Until that occurs, the DOL is encouraging employers to voluntarily grant this leave if needed. It is generally believed that the DOL will define a “qualifying exigency” very broadly to include almost anything related to a service member’s call-up or service on active duty or deployment for a “contingency operation.”

Such exigencies may be defined to include things such as arranging for child care, attending military ceremonies, taking care of legal and/or business matters and spending time with a service member home on leave or returning from deployment.

As with the 26 weeks of leave, this leave can be used intermittently or on a reduced-leave schedule. However, it should be noted that this section of the law does not include entitlement to leave for “next of kin,” but rather only when a spouse, son, daughter or parent is called to or on active duty.

The employer’s role

Employers should recognize that these expansions of FMLA will for most employers affect far fewer employees than other FMLA leave entitlements. And the leave remains unpaid. So, don’t panic, but do:

• Post the new FMLA poster that includes information on leave related to military service

• Become familiar with this new law and its regulations

• Amend the company’s FMLA policy to include the expansions of this leave and update the company’s FMLA policy in its employee handbook/manual.

As with any new law, employers can expect that there will be a flurry of test cases on the limits of the law and its regulations. However, as academically interesting as those cases may be, most companies do not want to be a test case.

So, when confronted with an employee’s need for time off related to a family member’s military service, you should examine the situation against the law and regulations, and if you have any doubt as to whether the employee is entitled to FMLA leave, you need to ask the employee to provide any additional information you need to make this determination.

If after that review you still have any doubts about the employee’s entitlement to FMLA leave, you should seek legal advice so that your company doesn’t land in a legal or public relations minefield as a result of failing to provide an employee with leave to which they are entitled related to a family member’s service in the Armed Forces.

Anne Scheer is a management labor attorney with the Concord law firm of Gallagher, Callahan & Gartrell. She can be reached at scheer@gcglaw.com.