The Proposed FMLA Regulations and Their Effect On You-

Part VI: Comments Concerning New Military Family Leave Provisions

 

            Continuing with our series of articles discussing the Department of Labor's (DOL) proposed regulations to the Family and Medical Leave Act of 1993 (FMLA), this week's topic focuses on the recent amendments to the FMLA concerning military family leave. Given the need to issue timely regulations pertaining to these new military family leave provisions, the DOL is requesting comments and feedback on the amendments as it prepares to draft the corresponding regulations.  This article will address the specific comments requested by the DOL.  As with the proposed regulations relating to FMLA leave in general, you may provide your comments to Ice Miller by visiting the comment page on the FMLA area  of our Web site. We will compile the feedback and submit comments to the DOL.  It is a very easy process and will ensure that your opinion is heard.   Your company will not be identified unless you either request to be identified or give us permission to do so. 

 

            The DOL is accepting comments on the proposed regulations until April 11, 2008.  We strongly encourage you to provide feedback to the DOL.  Please note that employers are free to comment on areas about which the DOL did not specifically request comments.

 

            As you may already know, near the beginning of the year, the President Bush signed into law H.R. 4986, the National Defense Authorization Act for Fiscal Year 2008 (NDAA). Among other things, section 585 of the NDAA amends the FMLA to include a new qualifying reason for leave and to provide a new leave entitlement.  Specifically, the amendment provides for the following:

 

1.   Eligible employees are entitled to up to 12 weeks of leave because of any qualifying exigency arising out of the fact that the spouse, son, daughter, or parent of the employee is on active duty, or has been notified of an impending call to active duty status, in support of a contingency operation.

 

2.   An eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember who is recovering from a serious illness or injury sustained in the line of duty on active duty is entitled to up to 26 weeks of leave in a single 12-month period to care for the servicemember.

 

            The first provision above provides a new qualifying reason for leave and will not go into effect until the secretary of labor issues regulations further defining "qualifying exigency" and explaining the terms of the amendment.  The second military caregiver provision provides a new leave entitlement, which became effective on January 28, 2008.  Unfortunately, even the military caregiver provisions are far from clear.  Some of the questions and issues raised by the DOL for comment are discussed below.

 

Notice

            The DOL is requesting comments regarding employee-provided notice of the need for FMLA leave.  The proposed regulations concerning FMLA leave in general require an employee to supply the employer with at least 30 days of advance notice.  If this 30-day notice requirement cannot be met, notice must be given as soon as practicable under the particular facts.  The DOL would like feedback as to whether this proposed regulation regarding employee notice could apply to the new military family leave provisions or if the new provisions necessitate a different notice requirement.

 

"Qualifying exigency"

            Family members will be eligible for FMLA leave because of any qualifying exigency arising out of the fact that the spouse, son, daughter, or parent of the employee is on active duty or has been notified of an impending call or order to active duty.  By its terms, this provision will not go into effect until the secretary of labor defines "qualifying exigency."  Thus, the DOL is seeking commentary to assist in developing an effective interpretation.  Congressional representatives have stated that this amendment could be used for families needing to take time off to manage issues concerning childcare or financial planning, to attend predeployment meetings and support sessions, to see a family member off to service or welcome the family member back home, or for any other issues that may arise as a result of immediate deployment.  However, the use of the term "qualifying" suggests that not all exigencies or urgencies would be covered by the FMLA.  Furthermore, because the new amendments also cover leave to care for a servicemember's serious injuries or illnesses, the DOL interprets this particular provision as being limited to non-medical exigencies.  But how should such exigencies be defined? Should the DOL provide some sort of list itemizing the scenarios that would qualify for FMLA leave?

 

"Son or daughter"

            Both Congress and the DOL addressed issues regarding the  definition of "son or daughter."  Under the current FMLA regulations, a son or daughter must be either under the age of 18 or above the age of 18 but incapable of self-care because of some mental or physical disability. However, this definition is problematic as applied to the military family leave amendments.  First, an individual may not even enlist  with the Armed Forces until the age of 17, and an individual must generally be capable of self-care to be medically qualified for performing military services.  Therefore, if a son or daughter is older than 18, the current FMLA regulations would create unfair results for parents seeking leave to care for an injured son or daughter servicemember. The current regulations would essentially create a one-year window whereby a parent could use FMLA military family leave to care for their child. Recognizing this glitch, members of Congress suggested that under the new military family leave provisions of the FMLA, son or daughter should be more broadly construed to include adult children.  The DOL is considering adopting a new definition of "son or daughter" for the military family leave provisions of the FMLA and would like feedback on this issue.

 

"Next of kin"

            The military caregiver amendment allows FMLA leave for a servicemember's "next of kin."  The DOL is considering adopting the Department of Defense's (DOD) definition of "next of kin" used for the disposition of a servicemember's remains, personal effects, and release of records.  The DOD's definition of "next of kin" includes the following:

·        Unremarried surviving spouse

·        Natural and adopted children

·        Parents

·        Remarried surviving spouse (except those who obtained a divorce from the servicemember or who remarried before a finding of death by the military)

·        Blood or adoptive relatives who have been granted legal custody of the servicemember by court decree or statutory provisions

·        Brothers or sisters

·        Grandparents

·        Other relatives of legal age in order of relationship to the individual according to civil laws

·        Persons standing in loco parentis to the servicemember

            The DOL is seeking comments on whether it should adopt the above "next of kin" definition.  It also proposes the possibility of incorporating an interpretation that relies on differing state laws.  Also at issue is whether an employee claiming next of kin status should be required to provide some sort of certification evidencing that relationship, and if so, who should issue such certification and what would the required certification contents entail.  The amendment also requires that the servicemember's next of kin be the "nearest blood relative."  The DOL raised questions concerning how to determine the nearest blood relative and if this means that only one family member could qualify as next of kin or if multiple family members would be eligible as next of kin.

 

"Serious injury or illness"

            The military caregiver provision defines "serious injury or illness" as "an injury or illness incurred by the member in the line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member's office, grade, rank, or rating."  Stating that the DOD and Veterans Affairs may be in the best position to determine the standard for what constitutes a "serious injury or illness," the DOL requests comments on whether certification provided by these agencies would be sufficient to establish that the servicemember has a serious injury or illness.  Along these same lines, the DOL also questions whether such an injury or illness that does not manifest itself until after the member has left the military should be included in the provision's coverage.  Such an interpretation could mean that an employee could take leave under the FMLA to care for a family member years after that family member served in the Armed Forces. Should FMLA leave be available for such conditions? And if so, how would this affect the definition's phrasing that such an injury "may render the member medically unfit to perform the duties" if the servicemember is no longer performing military duties?

 

"Treatment, recuperation, or therapy"

            The military caregiver amendment allows an employee to take FMLA leave to care for a "covered servicemember 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 illness or injury."  The DOL anticipates issues regarding what it means for a servicemember to be "undergoing medical treatment, recuperation, or therapy" for a serious illness or injury.  The DOL is currently of the view that any treatment, recuperation, or therapy provided to a covered servicemember should be included in the amendment's application.  However, it has raised the question as to whether only those treatments, recuperation, and therapy provided by the Armed Forces should be covered.  Should the DOL rely on the Department of Defense's determination as to whether a servicemember is undergoing medical treatment?  The DOL requests comments on this issue.  It also asks whether it should include some temporal proximity requirement between the injury and the subsequent treatment.  Limiting this leave to only that care provided by the Armed Forces would create a bright line rule for approving such leave and it would minimize the number of eligible employees.

 

"Twenty-six workweeks during a single 12-month period"

            Under the new military caregiver entitlement to leave, an employee may take up to 26 workweeks during a single 12-month period.  The DOL questions whether this a one-time entitlement or if an employee can qualify for multiple leaves under the new amendment.  Under the standard FMLA-qualifying reasons for leave, an employee is entitled to 12 weeks of leave within a 12-month period.  After the expiration of the 12-month period, and assuming other eligibility requirements continue to be met, an employee is entitled to take an additional 12 weeks with each new leave year.  However, the new provision allows for 26 workweeks of leave within a single 12-month period.  Does a "single 12-month period" mean that the 26 workweeks is only available to an employee once during his or her employment with the employer?  In addition, the DOL asks if this leave is available for each covered servicemember.  That is, could an employee take 26 weeks to care for one covered servicemember and then take another 26 weeks to care for another covered servicemember? The DOL requests comments on regulations relating to an employee's right to take 26 workweeks. The DOL also points out that the amendments do not specify how this 12-month period should be calculated.  For example, should the 12-month period be determined from the date of the servicemember's injury, the date of the determination of a serious injury or illness, or the date a family member is needed to care for the servicemember? The current regulations provide employers with options as to how it may determine the 12-month period during which an employee may take leave. Thus, perhaps employers should continue to decide how to determine the requisite 12-month period.  Given these considerations, the DOL is seeking comments on how the 12-month period should be measured for leave taken to care for a servicemember. 

 

Designation of type of leave

            With the new FMLA amendments, employees are now able to take military family leave as well as general FMLA leave.  The DOL seeks comments regarding how leave should be designated.  For example, will the employer or the employee determine the type of leave implicated? Additionally, can the initial designation of either military family leave or leave for other FMLA-qualifying reasons be changed retroactively if new circumstances arise warranting such a modification?

 

Certification

            Although the new amendments allow employers to require certification to support an employee's need for military family leave, it is unclear what such certification should necessarily include.  For example, the current certification requirements focus on the determination of a serious health condition, which is different than a serious injury or illness referred to in the new military caregiver amendment.  Additionally, the DOL asks what kinds of requirements would be appropriate for the certification of leave taken because of a qualifying exigency arising out of a servicemember's active duty or call to active duty.  Specifically, what type of information should be provided by the certifying party, who may issue the certification, and should the certification provide evidence of the qualifying exigency?  Furthermore, if leave is taken for a qualifying exigency, should the certification vary depending on the nature of the exigency?  Other issues raised by the DOL involve timing requirements, who should bear the cost of certification, and whether an employer should be permitted to clarify, authenticate, or validate a certification, or require recertification for inconsistent absences.  The DOL is also considering whether certification provided by the DOD or Veterans Affairs would satisfy the employer's certification requirement. Again, the DOL would like input regarding appropriate certification for the military family leave provisions.

 

Incorporation into current regulatory scheme

            The DOL has also posed questions concerning the proper integration of the military family leave regulations with the other FMLA regulations. The DOL believes that the new military family leave regulations could be incorporated into the remaining regulations, but it is entertaining the idea of keeping these regulations separate.  On this issue, the DOL is seeking input.  Along those same lines, the DOL is questioning whether the military family leave regulations can be incorporated into the poster and general notice proposed by the DOL for other FMLA leaves.  Again, the DOL recognizes the possibility of keeping the military family leave regulations separate and distinct from the other regulations.  Therefore, the DOL is considering implementing a second poster and general notice geared specifically to military family leave, and it welcomes any comments or concerns regarding this issue.

 

If you have questions related to the FMLA proposed regulations, please contact a member of Ice Miller's Labor and Employment Practice Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.