FMLA: New Categories; More Time Off Work; More to Comply With

On 1/28/08, the President signed a new law that expands the Family and Medical Leave Act (FMLA), providing leave rights for military families that is causing a new look at companies’ FMLA policies. The law went into effect as of that date, so it’s a mad scramble now as employers struggle to understand the policies they must now comply with.

As these new laws are not backed up by detailed regulation yet, the advice of a qualified HR or legal professional is essential ensuring compliance with the complex requirements of leave administration.

First, some employers are confused about the intersection of USERRA with these new FMLA leaves. USERRA is for actual deployed military members. The new FMLA leaves are for the people who stay back home, such as family members.

There are two new types of leave under the FMLA: “Qualifying Exigencies” and “Service member Family Leave.” An employer is still required to cover health insurance, follow the notification requirements, and all the other current FMLA rules. The best way for an employer to think about this is that these are two new categories of leave under the current FMLA; in other words, these are amendments, not entirely new types of leave.

“Qualifying Exigency Leave” is for an employee whose spouse, son, daughter, or parent is on active duty or is called for active duty in support of a contingency operation. The Department of Labor has not issued regulations on the exact definition of “qualified exigency” leave yet, so until then the DOL is encouraging employers to provide this type of leave to employees even though they won’t be enforcing it until the regulations are promulgated. Probable examples of this type of leave would be a spouse taking leave to arrange for child care, to see a child off or welcome a child home, to attend pre-deployment briefings, to attend family support meetings, or to attend reintegration briefings. This is clearly intended to be a broad category of leave, so it’s essential employers act in good faith and stay on top of the regulations as they are issued. In the meantime, make every attempt to accommodate this type of leave if it does arise before official guidance from the DOL is issued.

It’s important to note that the definition of “son” or “daughter” in Qualifying Exigency leave conflicts with the existing definition of those terms in the current FMLA regulations. It’s anticipated that the DOL regulations will address this discrepancy and provide guidance. The definition of parent is a biological parent or one who stood in-loco-parentis for the employee.

Active duty covers a broad array of potential military assignments during a war or national emergency, and this definition is governed by US code 101(a)(13)(B) of Title X. It covers assignments besides those which involve direct combat.

Qualifying Exigency leave is 12 weeks during a 12-month period, and is calculated the same way that any other FMLA leave is calculated by the employer: using the calendar year, roll-forward, or roll-back methods. Qualifying Exigency leave is integrated with all other FMLA reasons, so if an employee has taken 8 weeks of leave for a personal medical issue, and then requests Qualifying Exigency leave under the FMLA, they would have 4 weeks available.

Next of kin means the nearest blood relative of the Servicemember. This is likely to affect employees who are outside the traditional FMLA categories, such as brothers, sisters, aunts, uncles, and grandparents. Keep in mind that someone who qualifies under “in-loco-parentis” might qualify that employee under the “parent” category rather than “next-of-kin.” The DOL may issue some further guidance on next-of-kin, as there is nothing in the regulations making a determination of that term. For instance, what if there are two brothers of a servicemember?

One way for employers to prevent potential abuse of the next-of-kin provision is to ask what brothers, sisters, aunts, uncles, grandparents are service personnel in advance of any requested leave, or to list servicemembers they are potentially next-of-kin of.

The definition of “serious injury or illness” is different under Servicemember leave than under the other types of FMLA, as it requires that the injury or illness must have occurred in the line of active duty.

Employers should remember that providing “psychological comfort” also qualifies as a reason for leave under FMLA, including Servicemember leave. For this type of leave, an employer can ask the employee to specify the type of care they will be providing for the injured Servicemember.

For intermittent leave, it’s very important to get certification of the nature and schedule of the care to be provided, as the regulations seem to indicate that employees can take Servicemember leave on an intermittent basis as well.

Employers should immediately amend or supplement their FMLA policies. An employer is still required to give employees general notice of their rights under FMLA, so employers can post an updated policy on the employee bulletin board while we’re waiting for official postings from the DOL. Handbooks should also reflect the revised policy.

Employers also need to determine if they will comply with the general provisions of the Qualified Exigency leave while the specific regulations are pending. Supervisors and managers will need to be trained on these new requirements, and employers will need to update their forms to reflect the new leaves, such as revising the questionnaire regarding covered family relations.

Until the regulations are finalized for the Qualifying Exigency leave, some very broad situations may fall under that type of leave, such as staying home to care for children after a spouse has been deployed.

Because of the new length of these leaves, it’s possible that employers will face long-term employee absences, so cross-training employees in anticipation of such circumstances may benefit employers. There is no hardship or unreasonable provision of the FMLA that would allow a covered employee to deny the leave to a covered employee.

People on Servicemember leave in California may qualify for the Paid Family Leave program, which provides up to 6 weeks of salary replacement. But because few people can afford to take 20 weeks of unpaid leave, employers may want to consider adding a leave donation program as a way to support the family members of injured Servicemembers. Such programs can demonstrate the company’s solid support of our Servicemembers, and build morale and team identify by setting up a structure for employees to help each other.

Another wrinkle for California employers is the recent passage of a bill establishing leave rights for Military Spouses. This new leave will need to be integrated with CFRA and FMLA as well as PFL. So far 2008 has dramatically increased the complexity of leaves that California employers must contend with, and the advice of a qualified HR or legal professional is highly recommended in dealing with these complex situations.

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