New FMLA Regulations Define Scope of Active-Duty Leave

The Family and Medical Leave Act (FMLA), will be clarified when the U.S. Department of Labor (DOL), formally publishes new regulations on Monday, November 17, 2008. Among the many changes contained in the regulations, are provisions dealing with the recently enacted leave benefits for family members of both seriously injured or ill service members and National Guard and Reserve members who have been called to service.

On January 28, 2008, President Bush signed into law the National Defense Authorization Act for FY 2008 (NDAA). One section of the NDAA was an amendment to the Family and Medical Leave Act of 1993 (FMLA) which created two new types of FMLA leave: Military Caregiver Leave and Active-Duty Leave. Although the NDAA became effective immediately following the President’s signature, the DOL announced that it would not look to enforce the Act until it issued regulations as long as an employer was attempting to comply with the NDAA “in good faith.” The new regulations apparently end this amnesty period.

Active-Duty Leave, as the name suggests, is triggered when the employee’s relative is called to active duty. It can be taken by employees spouse, parent, or child who is on or has been called to active duty in the Armed Forces. These workers may take up to 12 weeks of FMLA leave when they experience “any qualifying exigency.” The new regulations finally define what is a “qualifying exigency.”

Section 825.126(a) of the final rule defines qualifying exigency by providing a specific and exclusive list of reasons for which an eligible employee can take leave because of a qualifying exigency. These reasons are divided into seven general categories: (1) Short-notice deployment, (2) Military events and related activities, (3) Childcare and school activities, (4) Financial and legal arrangements, (5) Counseling, (6) Rest and Recuperation, (7) Post-Deployment activities, and (8) Additional activities.

The short-notice deployment category involve the situation where a covered military member is notified less that seven days prior to a deployment. Under these circumstances, leave can be taken to address any issue that arises from the deployment. Leave taken for this purpose can be used for a period of seven calendar days beginning on the date the covered military member is notified of an impending call or order to active duty.

The Military Events and related activities category allows leave to attend any official ceremony, program, or event sponsored by the military and to attend family support and assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross that are related to the active duty or call to active duty status of a covered military member.

The Childcare and School activities category allows an eligible employee to take leave to arrange childcare or attend certain school activities for a biological, adopted, or foster child, a stepchild, or a legal ward of the covered military member, or a child for whom the covered military member stands in loco parentis, who is either under age 18, or age 18 or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence.

Leave may be taken under this to arrange for alternative childcare when the active duty or call to active duty status of a covered military member necessitates a change in the existing childcare arrangement; (2) to provide childcare on an urgent, immediate need basis (but not on a routine, regular, or everyday basis) when the need to provide such care arises from the active duty or call to active duty status of a covered military member; (3) to enroll the child in or transfer the child to a new school or day care facility when enrollment or transfer is necessitated by the active duty or call to active duty status of a covered military member; and (4) to attend meetings with staff at a school or a day care facility, such as meetings with school officials regarding disciplinary measures, parent-teacher conferences, or meetings with school counselors, when such meetings are necessary due to circumstances arising from the active duty or call to active duty status of a covered military member.

The Financial and Legal Arrangements category allows qualifying exigency leave to make or update financial or legal arrangements to address the covered military member’s absence while on active duty or call to active duty status, such as preparing and executing financial and health-care powers of attorney, transferring bank account signature authority, enrolling in the Defense Enrollment Eligibility Reporting System (“DEERS”), obtaining military identification cards, or preparing or updating a will or living trust. It also allows leave to act as the covered military member’s representative before a federal, state, or local agency for purposes of obtaining, arranging, or appealing military service benefits while the covered military member is on active duty or call to active duty status and for a period of 90 days following the termination of the covered military member’s active duty status.

The Counseling category allows qualifying leave to attend counseling provided by someone other than a health-care provider for oneself, for the covered military member, or for the biological, adopted, or foster child, a stepchild, or a legal ward of the covered military member, or a child for whom the covered military member stands in loco parentis, who is either under age 18, or age 18 or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence, provided that the need for counseling arises from the active duty or call to active duty status of a covered military member.

The Rest and Recuperation category provides 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 days of leave for each instance of rest and recuperation.

The Post-Deployment activities category allows qualifying exigency 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 and to address issues that arise from the death of a covered military member while on active duty status, such as meeting and recovering the body of the covered military member and making funeral arrangements.

Finally, the Additional Activities category allows leave to address other events which arise out of the covered military member’s active duty or call to active duty status provided that the employer and employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave.

A future post will address how the new regulations answer the many open issues surrounding military caregiver leave. Stay tuned.

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