The Family and Medical Leave Act (“FMLA”), which provides eligible employees with job leave due to the birth or adoption of a child or for a serious health condition of the employee or a qualifying family member, was recently amended to provide for up to 12 weeks of unpaid “Active Duty Leave,” and for up to 26 weeks of unpaid “Military Caregiver Leave.” A summary of “Active Duty Leave” and “Military Caregiver Leave” follows:
Active Duty Leave
“Active Duty Leave” permits eligible employees up to 12 weeks of unpaid leave because of 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. A contingency operation is involvement in “military actions, operations, or hostilities against an enemy of the United States or against an opposing military force.”
The term “qualifying exigency” has not yet been defined in the regulations. The DOL has indicated that leave for qualifying exigencies should be limited to non-medical related exigencies and must be related to active military duty status. Some examples include: spending time with the service member before the active duty begins; making financial, legal, child care or elder care arrangements; attending counseling as a result of the service member's active duty; or attending farewell or arrival arrangements as a result of the service member's active duty.
For active duty leave requests, employers should have the eligible employee identify in writing the relative on active duty and the qualifying exigency. Employers should not require the employee to provide certification until the DOL's final regulations are issued later this year. Although the amendments became effective January 28, 2008, the Department of Labor (“DOL”) has stated that employers are not required to provide this leave until the final regulations are published. However, the DOL has strongly recommended employers provide employees with the new FMLA leave in the meantime.
Military Caregiver Leave
“Military Caregiver Leave” permits eligible employees up to 26 weeks of unpaid leave to care for a service member if the employee is the spouse, son, daughter, parent, or next of kin of a covered service member. A covered service member is a member of the Armed Forces on active duty 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.” The DOL has indicated that treatment, recuperation, or therapy for the serious illness or injury may apply to non military-provided medical care.
For military caregiver leave requests, employers should use existing DOL leave forms (which employers can revise to indicate up to 26-weeks of leave), and may request certification issued by the service member's health care provider.
Employers should continue using their normal FMLA procedures with either new leave, including, if applicable, requiring employees to use accrued paid time off concurrently with unpaid FMLA leave. The same eligibility requirements apply for the new leave as for traditional FMLA leave. When the employee is absent an employer must continue to provide the employee with health care benefits, must reinstate the employee to the same or equivalent position upon return, and may not discriminate against the employee for taking active duty or military caregiver leave.
Many questions regarding the FMLA amendments remain unresolved, some of which we hope will be resolved once the final regulations are published. Until the final regulations are published, we recommend employers attach an addendum to their current FMLA policies, summarizing the new leave provisions and notifying employees of future revisions once the final DOL regulations are issued. Most importantly, employers should provide leeway, be flexible in response to good faith requests for active duty and military caregiver leave and, when in doubt, consult counsel. If you have any questions regarding the FMLA amendments, contact Laura Pfeiffer or Mark Pihart at Winthrop & Weinstine, P.A., for assistance. Winthrop & Weinstine routinely drafts and reviews handbook policies and employment contracts to ensure compliance with employment-related laws.