October 3, 2016

What types of events qualify for leave under the FMLA? Part 2 of 2

Weekly HR News – FMLA

What types of events qualify for leave under the FMLA?  Part 2 of 2

Last week the article focused on the first three events that qualify for FMLA, which are birth or adoption of a child, care of an immediate family member with a serious health condition and recovery of series health condition by the employee.  This week we will look at the final two qualifications for leave in regards to military exigencies and care of an injured service member. 

  • The first is up to twelve (12) weeks of leave for qualifying exigencies arising out of a covered family member's active military duty.  There are eight (8) qualifying exigencies which are listed below:

(1)        Short-notice deployment, which refers to leave to address any issue that arises from the fact that a covered military member is notified of an impending call or order to active duty in support of a contingency operation seven (7) calendar days or less prior to the date of deployment. Leave for this purpose can be used for up to seven (7) calendar days beginning on the date the covered military member is notified of the impending call or order to active duty.

(2)        Military events and related activities which refers to leave to attend any official military ceremony, program, or event related to the active duty or call to active duty status or to attend certain family support or assistance programs and informational briefings.

(3)        Childcare and school activities which refers to leave to arrange for alternative childcare under certain circumstances; to provide childcare on an urgent, immediate need basis; to enroll in or transfer to a new school or daycare facility when necessary; or to attend meetings with staff at a school or daycare facility when necessary.

(4)        Financial and legal arrangements which refers to leave to make or update various financial or legal arrangements; or to act as the covered military member's representative before a federal, state, or local agency in connection with military service benefits.

(5)        Counseling which refers to leave to attend counseling (by someone other than a healthcare provider) for the employee, for the covered military member, or for a child or dependent when necessary as a result of the active duty or call to active duty status.

(6)        Rest and recuperation refers to leave to spend time with a covered military member who is on short-term, temporary, rest-and-recuperation leave during the period of deployment. Eligible employees may take up to five (5) days of leave for each instance of rest and recuperation.

(7)        Post-deployment activities refers to leave to attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military for a period of 90 days following the termination of the covered military member's active duty status. This also refers to leave to address issues that arise from the death of a covered military member while on active duty status.

(8)        Additional activities refers to leave to address other events arising from the military duty provided that the employer and employee agree that such leave shall qualify as an exigency and agree to the timing and duration of such leave.

  • Up to twenty-six (26) weeks of leave in a single 12-month period to care for a covered service member recovering from a serious illness or injury.  Eligible employees are entitled to a combined total of up to 26 weeks of all types of FMLA leave. This gives an employee up to 26 weeks of leave to care for a member of the employee's family who was injured while in military service.  An eligible employee must be the spouse, child, parent or "next of kin" to "a member of the Armed Forces, including a member of 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." 
    • Next of kin of a covered service member means the nearest blood relative other than the covered service member's spouse, parent, son, or daughter, in the following order of priority: blood relatives who have been granted legal custody of the covered service member by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the covered service member has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under the FMLA. When no such designation is made, and there are multiple family members with the same level of relationship to the covered service member, all such family members shall be considered the covered service member's next of kin and may take FMLA leave to provide care to the covered service member, either consecutively or simultaneously. When such designation has been made, the designated individual shall be deemed to be the covered service member's only next of kin. 
    • "Serious injury or illness" is defined as "an injury or illness incurred by the member in 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." 

The 26 weeks of leave available under this new provision are not in addition to the previous 12 weeks of leave under the FMLA.  An employee that uses 12 weeks of FMLA leave for another reason in one 12-month period would then only have 14 weeks of leave to care for an injured service member.   For purposes of calculating leave entitlement, the regulation provides that the single twelve month period "begins on the first day the eligible employee takes FMLA leave to care for the covered service member" regardless of the method used by the employer to determine the employee's twelve workweeks of leave entitlement for other FMLA qualifying reasons.

For additional questions regarding FMLA or other personnel related matters, contact Andrea Shindlebower, Personnel Services Specialist.