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FAMILY AND MEDICAL LEAVE ACT NEWS |
Proposed FMLA regs shed light on new leave requirements for military families
by employment law attorney Julie AtheyWhen Congress amended the Family and Medical Leave Act (FMLA) to grant additional leave entitlements to certain employees with family members in the military, its heart was in the right place. After all, who can argue against that type of leave? Unfortunately for employers, Congress didn’t seem to think things through very carefully in drafting the legislation. First, by leaving out an effective date, it ensured that the legislation would — for the most part — be effective immediately. Then, by leaving a lot of the law’s specific requirements up to the U.S. Department of Labor (DOL) to interpret and even decide, Congress ensured that there would be a gap of at least several months between the law’s effective date and the DOL’s issuance of regulations. Related articles on FMLA During that gap, employers are more or less flying blind in considering and granting leave requests from potentially qualifying employees. Employers do have one thing on their side, however. In the DOL’s recently published proposed FMLA regulations, the agency identified and asked for public comments on a number of military leave issues on which regulations may be needed. That’s the agency’s way of “fast-tracking” final regulations for the military leave requirements, which could be issued as soon as May. In the meantime, the DOL’s comments and questions may provide some guidance to employers who are faced with the task of processing and designating or denying requests for military FMLA leave. Although those comments aren’t determinative, they provide some level of insight into the types of things employers may be able to do now to comply with the military leave requirements. Qualifying Exigency Perhaps the biggest question the DOL must answer is what circumstances will constitute a “qualifying exigency” allowing employees to take 12 weeks of leave when a parent, spouse, or child is called to or on active duty (”active duty leave”). Although the DOL is taking the position that employers aren’t required to award this type of leave until the issuance of final regulations, it encourages them to do so. To do that, you need to have some idea of what is meant by a “qualifying exigency.” The DOL first proposes the idea that Congress didn’t intend for this type of leave to be taken for medical reasons that would entitle employees to leave under some other provision of the FMLA, but beware, that could change in the final regulations. Instead, it says that employees may qualify for such leave if they need to do any of the following as a result of the service member’s absence:
In addition, the DOL states that there must be some sort of connection between the employee’s need to engage in the above types of activities and the family member’s military service. A question it wants to answer in the final regulations is the degree of connection that will be required. Even though the DOL says you’re not required to provide this type of leave yet, the safer approach is to do so and to take a broad view of what constitutes a qualifying exigency using the above list as a guide. Other circumstances may qualify as well, but that list is a good starting place for employers that want to know when to grant employees’ requests for active duty leave. The DOL seems to be struggling with how to define that term, asking such questions as whether there can be only one “nearest blood relative” of a given service member and what type of documentation will be required to establish that relationship. It states that it is considering whether to include the following categories of people in the definition of next of kin:
The problem with that definition is that most members of the armed forces are over the age of 18, and relatively few are disabled as defined by the FMLA. So if employers were to apply the existing definition of a “son or daughter” to military leave, few employees with children injured in military service would qualify for leave. A similar quandary exists in applying that definition to the active duty leave provisions. Doing so would result in the anomalous situation that children of injured service members would be entitled to leave only if they are under the age of 18 or over the age of 18 and disabled. That is clearly not what Congress intended. The DOL will surely resolve the anomalies in its final regulations. In the meantime, employers shouldn’t be pedantic in applying the definition of a son or daughter. If employees request leave related to their child’s or parent’s military service, you can’t go wrong by granting it.
One critical piece of information is that the military branches already regularly provide, when requested, a medical certification to family members of covered service members certifying that the member is seriously injured or ill and is actively receiving medical treatment. Employers should, at a bare minimum, accept such a certification for the purpose of considering an employee’s request for injured service member leave. In addition, for now, employers probably should accept a medical certification from the injured service member’s personal physician, regardless of whether medical care is being provided by the military or a private health care provider. The DOL’s comments indicate that it will provide detailed instructions on certifying a service member’s medical condition in its final regulations. About Julie Athey Employment law attorney Julie Athey has written several publications for Human Resources professionals, including Defusing the Overtime Bomb: How to Comply with the FLSA and How to Fire Employees Without Getting Burned. She graduated with honors from the University of Tulsa College of Law, where she was an editor of the Energy Law Journal. She also obtained her undergraduate degree in English, cum laude, from the University of Tulsa. Her excellent legal and editorial skills have made her one of the most popular authors of M. Lee Smith Publishers resources. View all HR topicsRelated articles on FMLA from the State Employment Law Letters
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