New Act Expands Servicemember and Caregiver Leave under the FMLA.

As discussed in the February 13, 2008 posting at Servicemember Leave Amendments to the FMLA: Overdue or Raising More Questions Than Answered? , on January 28, 2008, President Bush signed the National Defense Authorization Act of 2008, § 585 of which amended the FMLA to create two new forms of family leave: exigency leave and caregiver leave for members of the families of military servicemembers. Yesterday, President Obama signed the National Defense Authorization Act for Fiscal Year 2010, which amended the NDAA Amendment to the FMLA. In this very long Act, section 565 amends the FMLA in a number of respects.

In short, the new FMLA amendments delete references to “contingency operations,” replaces “active duty” to “covered active duty,” expands exigency leave coverage to members of the families of active members of the regular armed forces (instead of just members of the reserved forces and national guard) and expands coverage of the 26-week servicemember leave to families of veterans who served in covered active duty at any point in the prior five years and were injured in the line of covered active duty.

First, the new amendment deletes the “newish” subsection (16) of the amended FMLA and amends the “newish” subsections (14), (15), and (19):

(14) ACTIVE DUTY.—The term ‘active duty’ means duty under a call or order to active duty under a provision of law referred to in section 101(a)(13)(B) of title 10, United States Code.
(15) CONTINGENCY OPERATION.—The term ‘contingency operation’ has the same meaning given such term in section 101(a)(13) of title 10, United States Code.
(16) COVERED SERVICEMEMBER.—The term ‘covered servicemember’ means 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.
. . .
(19) SERIOUS INJURY OR ILLNESS.—The term ‘serious injury or illness’, in the case of a member of the Armed Forces, including a member of the National Guard or Reserves, means 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.

These “newish” subjections have been replaced by the following language:

(14) COVERED ACTIVE DUTY.—The term ‘covered active duty’ means—
‘‘(A) in the case of a member of a regular component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country; and
(B) in the case of a member of a reserve component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country under a call or order to active duty under a provision of law referred to in section 101(a)(13)(B) of title 10, United States Code.
(15) COVERED SERVICEMEMBER.—The term ‘covered servicemember’ means—
(A) 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; or
(B) a veteran who is undergoing medical treatment, recuperation, or therapy, for a serious injury or illness and who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy.
. . .
(18) SERIOUS INJURY OR ILLNESS.—The term ‘serious injury or illness’—
(A) in the case of a member of the Armed Forces (including a member of the National Guard or Reserves), means an injury or illness that was incurred by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating; and
‘‘(B) in the case of a veteran who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during a period described in paragraph (15)(B), means a qualifying (as defined by the Secretary of Labor) injury or illness that was incurred
by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that manifested itself before or after the member became a veteran.

The “newish” subsections (16) through (19) have now been renumbered as paragraphs (15) through (18), respectively. In other words, the language of “newish” subjections (17) and (18) has not changed, but they have been renumbered to (16) and (17) and “newish” subjection (16) [on contingency operations] was deleted entirely.

Second, the new amendment modified 29 U.S.C. § 2612(a)(1)(E), which currently provides:

(E) Because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.

To the following language:

(E) Because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces.

Third, 29 U.C.S. § 2612 (e)(3) has been amended as follows:

From the current language:

NOTICE FOR LEAVE DUE TO ACTIVE DUTY OF FAMILY MEMBER.—In any case in which the necessity for leave under subsection (a)(1)(E) is foreseeable, whether because the spouse, or a son, daughter, or parent, of the employee is on active duty, or because of notification of an impending call or order to active duty in support of a contingency operation, the employee shall provide such notice to the employer as is reasonable and practicable.

To the new language:

NOTICE FOR LEAVE DUE TO ACTIVE DUTY OF FAMILY MEMBER.—In any case in which the necessity for leave under subsection (a)(1)(E) is foreseeable, whether because the spouse, or a son, daughter, or parent, of the employee is on covered active duty, or because of notification of an impending call or order to covered active duty, the employee shall provide such notice to the employer as is reasonable and practicable.

Fourth, the new Act inserts the following language for 29 U.S.C. § 2611(19):

(19) VETERAN.— The term ‘veteran’ has the meaning given the term in section 101 of title 38, United States Code.

Finally, the employee’s duties regarding foreseeable leave under 29 U.S.C. § 2612(e)(2)(A) have been amended as follows:

(2) Duties of employee.
In any case in which the necessity for leave under subparagraph (C) or (D) of subsection (a)(1) or under subsection (a)(3) of this section is foreseeable based on planned medical treatment, the employee -
(A) shall make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the employer,subject to the approval of the health care provider of the employee or the health care provider of the son, daughter, spouse, parent, or covered servicemember of the employee, as appropriate; and

Revised FMLA regulations are sure to follow at some point . . . .

Insomniacs can read the new Act in its entirety at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h2647enr.txt.pdf

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Servicemember Leave Amendments to the FMLA: Overdue or Raising More Questions Than Answered?

On January 28, 2008, President Bush signed the National Defense Authorization Act of 2008 (the “NDAA”). Section 585 of the NDAA amended the Family and Medical Leave Act (FMLA) in two important respects:

1) Exingency Leave. Once the Department of Labor has finalized definitions and implementing regulations, the FMLA’s 12-week leave entitlement will be extended to cover “any qualifying exigency” arising from that fact that an employee’s spouse, son, daughter or parent is on active military duty or has been notified of an impending call or order to active military duty in support of a contingency operation. Because the Department of Labor is taking comments until April 11, 2008, it is unlikely this leave will become effective before summer.

2) Servicemember Leave. Eligible employees who are the spouse, son, daughter, parent or “next of kin” (i.e., nearest blood relative) of a “covered servicemember” shall be entitled to a total of 26 workweeks of leave during a single 12-month period to care for the servicemember. This provision was effective as of January 28, 2008, although many important questions remain unanswered about its implementation.

Most of the terms for Servicemember Leave are contained in the NDAA and merely incorporate many Department of Defense terms already familiar to employers applying USERRA, Servicemembers Civil Relief Act and similar legislation. “Service members” include any “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.” The term `serious injury or illness' “ means 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.” Importantly, this serious injury or illness may not necessarily prevent the servicemember from performing the essential duties of his or her civilian job. In addition, the DOL has indicated that the medical treatment may be rendered by either the Defense Department, Veterans Affairs or civilian medical providers.

Although employers are already required to provide the 26 weeks of Servicemember Leave, the Department of Labor issued proposed regulations on February 11, 2008 which raised many important questions that will undoubtedly face many employers and employees while administering Servicemember Leave, including:

* What kind of temporal proximity is required between the injury/illness and the treatment, recuperation or therapy for which care is required? What if the illness/injury does not manifest itself until long after the cessation of military duties?

* Who is covered by “next of kin?” The Defense Department regulations consider a number of relatives, including grandparents who are not now covered by the FMLA. Should it be limited to only one relative who is the nearest blood relative as provided in the NDAA? How shall it be determined who is next of kin (particularly when there are a number of equally related kin)?

* What kind of certification should be required to show that the servicemember is “medically unfit” to perform his or her military duties?

* The FMLA regulations currently only covers children when they are under the age of 18 unless they are incapable of self-care because of a disability. The military does not permit individuals to serve unless they are over the age of 17. Thus, very few “children” are currently covered. Should the FMLA regulations be amended to permit parents to care for their servicemember adult children? The proposed regulations also imply that adult children would not now be permitted to care for servicemember parents unless the regulations were amended. One must assume that children could still qualify for 12 weeks of FMLA leave when their parents have a “serious medical condition.”

* Unlike the FMLA's typical medical/family leave, the servicemember leave is limited to a “single 12-month period.” Does this mean that it is a one-time entitlement and cannot be repeated in another year (unlike the FMLA where the entitlement is reborn every year)? Is this twelve months a calendar or leave year? Is it per injury? Per employee? Per servicemember? Per relative?

As for what may eventually be covered by Exigency Leave, the Department of Labor has indicated that it may be limited to non-medical exigencies related to deployments and military service, such as arranging for childcare, making financial and legal arrangements to address the servicemenber’s absence, attending counseling relating to the service member’s active duty, attending official ceremonies or programs where the participation of family is requested by the military, attending farewell or arrival arrangements and attending to affairs caused by the missing status or death of a service member. As discussed above, the question is again raised whether parents should qualify for such leave in connection with an adult child and whether the FMLA regulations need to be amended before adult children could qualify for exigency leave in connection with a servicemember parent. As with Servicemember Leave, the Department of Labor has identified a number of issues which must be resolved and which will not be publicly flushed out before the DOL issues final regulations later this year.

The proposed regulations and supporting comments are 127 pages long, also address a variety of issues identified last year by the mammoth DOL Report on the FMLA, and amend a number of FMLA regulations and forms. There will be more on that later.

Insomniacs can read the NDAA at http://www.govtrack.us/congress/billtext.xpd?bill=h110-4986

The DOL’s proposed regulations and supporting commentary which address both the NDAA amendments to the FMLA and other issues related to medical certification forms, intermittent leave, etc. can be found by insomniacs at http://www.dol.gov/esa/whd/fmla/FedRegNPRM.pdf. The DOL will take comments on the proposed regulations until April 11, 2008.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.