Part One of this article focused on the first three circumstances that qualify for FMLA, which are the birth or adoption of a child; care of an immediate family member with a serious health condition; and the employee’s recovery from a serious health condition. This week we will look at the final two qualifications for leave regarding military exigencies and military caregiver leave.
The first military-related reason for FMLA allows up to 12 weeks of leave for qualifying exigencies arising out of a covered family member's active military duty. For members of the Regular Armed Forces, covered active duty is duty during deployment of the member of the Armed Forces to a foreign country. For members of the Reserve components of the Armed Forces (members of the National Guard and Reserves), covered active duty is duty during deployment of the member with the Armed Forces to a foreign country under a call or order to active duty in a contingency operation. There are nine qualifying exigencies which are listed below:
- Issues arising from the military member’s short-notice deployment (i.e., deployment within seven or less days of notice). An employee may take qualifying exigency leave to address any issue that arises from the short-notice deployment for a period of up to seven days from the day the military member receives notice of deployment.
- Attending military events and related activities, such as official ceremonies, programs, events and informational briefings; and family support or assistance programs sponsored by the military, military service organizations, or the American Red Cross that are related to the member’s deployment.
- Certain childcare and related activities arising from the military member’s covered active duty, including arranging for alternative childcare; providing childcare on a nonroutine, urgent, immediate need basis; or enrolling in or transferring a child to a new school or daycare facility. Note: The employee taking FMLA qualifying exigency leave does not need to be related to the military member’s child. However, (1) the military member must be the parent, spouse, son, or daughter of the employee taking FMLA leave, and (2) the child must be the child of the military member (including a child to whom the military member stands in loco parentis).
- Certain activities arising from the military member’s covered active duty related to care of the military member’s parent who is incapable of self-care, such as arranging for alternative care; providing care on a nonroutine, urgent, immediate need basis; admitting or transferring a parent to a new care facility; and attending certain meetings with staff at a care facility, such as meetings with hospice or social service providers. Note: The employee taking FMLA qualifying exigency leave does not need to be related to the military member’s parent. However, (1) the military member must be the parent, spouse, son, or daughter of the employee taking FMLA leave, and (2) the parent must be the parent of the military member (including an individual who stood in loco parentis to the military member when the member was a child).
- Making or updating financial and legal arrangements to address a military member’s absence while on covered active duty, including preparing and executing financial and healthcare powers of attorney, enrolling in the Defense Enrollment Eligibility Reporting System (DEERS), or obtaining military identification cards.
- Attending counseling for the employee, the military member, or the child of the military member when the need for that counseling arises from the covered active duty of the military member and is provided by someone other than a health care provider.
- Taking up to 15 calendar days of leave to spend time with a military member who is on short-term, temporary Rest and Recuperation Leave during deployment. The employee’s leave for this reason must be taken while the military member is on Rest and Recuperation Leave.
- Certain post-deployment activities within 90 days of the end of the military member’s covered active duty, including attending arrival ceremonies; reintegration briefings and events; other official ceremonies or programs sponsored by the military; and addressing issues arising from the death of a military member, including attending the funeral.
- Any other event that the employee and employer agree is a qualifying exigency.
The second qualifying military-related reason provides up to 26 weeks of leave in a single 12-month period to care for a current servicemember or veteran of the employee's family who is receiving medical treatment, recuperation, or therapy; is in outpatient status; or is on the temporary disability retired list for a serious injury or illness. In this instance, a serious injury or illness is one that is incurred by a servicemember in the line of duty on active duty that may cause the servicemember to be medically unfit to perform the duties of their office, grade, rank, or rating. A serious injury or illness also includes injuries or illnesses that existed before the servicemember’s active duty and that were aggravated by service in the line of duty on active duty.
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 servicemember means the nearest blood relative other than the covered servicemember's spouse, parent, son, or daughter, in the following order of priority:
- A blood relative who has been designated in writing by the servicemember as the next of kin for FMLA purposes
- A blood relative who has been granted legal custody of the servicemember
- Aunts and uncles
- First cousins
- Note: When a servicemember designates a blood relative as next of kin for FMLA purposes in writing, that individual is deemed to be the servicemember’s only FMLA next of kin. When a current servicemember has not designated a next of kin for FMLA purposes in writing, and there are multiple family members with the same level of relationship to the servicemember, all such family members are considered the servicemember’s next of kin and may take FMLA leave to provide care to the servicemember.
Military caregiver leave is available to an eligible employee once per servicemember, per serious injury or illness. However, an eligible employee may take an additional 26 weeks of leave in a different 12-month period to care for the same servicemember if they sustain an unrelated serious injury or illness. In addition, an eligible employee may also take military caregiver leave to care for more than one current servicemember or covered veteran with a serious injury or illness at the same time, but the employee is limited to a total of 26 weeks of military caregiver leave in any single 12-month period.
It is also important to note that the 26 weeks of military caregiver leave available under this provision are not in addition to the 12 weeks of leave under the FMLA for the other qualifying reasons. As such, an employee is limited to a combined total of 26 workweeks of leave. An employee that uses 12 weeks of FMLA leave for a reason unrelated to military caregiver leave in one 12-month period would then only have 14 weeks of leave to care for an injured servicemember. For purposes of calculating leave entitlement, the regulation provides that the single 12-month period "begins on the first day the eligible employee takes FMLA leave to care for the covered servicemember" regardless of the method used by the employer to determine the employee's 12 workweeks of leave entitlement for other FMLA-qualifying reasons.
Mark your calendars and register for a webinar on the Intersection of FMLA, ADA, and Workers’ Compensation on Wednesday, October 27. For questions on FMLA or other personnel-related matters, contact Andrea Shindlebower Main, KLC personnel services manager.