The Family Medical Leave Act's Military Provisions
The Family Medical Leave Act's Military Provisions
As military families, things might happen that may complicate the balance between civilian and military life. Taking care for an injured service member, arranging for childcare while a spouse is deployed to a different country, or attending arrival ceremonies for when a service member returns home are some examples of unexpected military commitments families may need to handle.
How does the Military Family Leave help my military family?
There are two types of FMLA leave specifically designed to support military families:
1.) Qualifying Exigency Leave
Allows eligible employees to take up to 12 weeks' time off to prepare for an upcoming deployment or for other needs like the return of a service member.
2.) Military Caregiver Leave
Allows eligible employees to take up to 26 weeks (about 6 months) of time to care for a covered servicemember or veteran with a serious injury or illness.
Who can use the Military Family Leave?
To be eligible for FMLA Military Family Leave, the employee needs to work for a covered employer.
Employers with at least 50 employees are considered covered employers. Employers with less than 50 employees are not covered by FMLA. Local and federal government agencies and elementary, middle, and high schools are covered by the FMLA even if they have less than 50 employees.
Employees who work for a covered employer must also:
Have worked at their job for at least 12 months;
Have worked at least 1,250 hours (about 1 month 3 weeks) in the 12 months; and
Work at a place where the employer has at least 50 employees within 75 miles.
When a relative of a servicememberhasbeentold ofan upcomingdeployment, and they are eligible with a coveredemployer, they mayqualifyforexigencyleave. Byqualifying, exigencyleaveallowstherelativetotake up to12 weeks (about 3 months)of FMLA leavefor certainexigencies. Examples may be to set arrangementsforday care for the service member’schild ortoattenddeploymentceremonies.
Eventslikethedeploymentof a servicemembercan place a lotof stress and uncertaintyonmilitaryfamilies. Manyofthesechangesrequirea lot of time and attention. Even thoughsomeofthesethings do nothaveanything to do withanillnessorinjury,familymembersmayneed time awayfromtheirjob totake care oftheseissues. This is when Qualifying Exigency Leave is used.
Who can take Qualifying Exigency Leave?
Coveredemployeeswho want to take qualifyingexigencyleavemustbe the servicemember’sspouse, parent, or child.
Parent
For FMLA leave purposes, a parent is the service member’s biological, adoptive, step, or foster parent, or any person who stood In Loco Parentis. A parent “in law” does not qualify for exigency leave.
Child
For FMLA leave purposes, a child is the service member’s biological, adopted, foster child, stepchild, legal ward, or a child that for whom the service members stood in loco parentis. There are no age limitations for any of the definitions of a child.
What does In Loco Parentis mean?
An adult stands in loco parentis if they provide day-to-day care or financial support for a child. A person who is not biologically related to a child may stand or have stood in loco parentis for purposes of FMLA.
For example, a neighbor may exercise their FMLA rights to take Qualifying Exigency Leave if they took on the role of raising their neighbor’s child, who later became a service member.
What is considered Covered Active Duty?
Once itis determinedthat a relative works at a coveredemployer, nextitneedsto be determinediftheservicememberisoncovered active dutyoroncalltocoveredduty status.
Covered active duty means:
For service members in the Armed Forces, this means being deployed overseas.
For members of the Reserves and National Guard, this means deployment to areas outside of the United States, the District of Columbia, or any Territory or possession of the United States, including international waters.
What situations could be considered for Qualifying Exigency Leave?
Formemberswho are oncoveredduty, their relative may be abletotake a qualifying exigency leaveforthefollowingqualifyingexigencies:
Totake care ofanythingthatmay come up for a servicememberwhoreceived a short-noticedeployment (ex.deploymentwithin7orlessdays). Coveredemployeesmay be allowedtoleavefor up to7 calendar daysstartingonthedayofdeployment.
Toaddressfinancialor legal arrangementsfor thefamily. Thismay be thingslikepreparing and filingfinancial and healthcarepowersofattorney, enrolling in theDefense EnrollmentEligibilityReportingSystem (DEERS), gettingmilitaryidentificationcards, orarrangingmilitaryservicebenefits.
Toattendcounselingforanyone in thefamily, includingtheservicemember, because ofthemilitarymember’sactive duty.Counseling sessions cannot be held by a health care provider.
Toparticipate in militaryevents and relatedactivities that talk about the service member’s active duty. Thesecould be militaryceremonies, militaryprograms,familysupportprograms, and/orinformation briefings hostedbythemilitaryor a militaryserviceorganization.
Tospend up to15 calendar dayswitha servicememberwhoisonRest and Recuperation (R&R) during coveredactiveduty.
To address childcare or child related activities that come up while someone is deployed.
To provide childcare for non-routine, urgent, or immediate needs.
To enroll or transfer a child in a school or day care.
To attend meetings at a school or day care facility. Meetings include behavior problems, parent-teacher conference, or meetings with counselors.
The relative acting on behalf of the service member does not have to be related to the service member’s child. The expectations are that (1) the service member is a spouse, parent, or child of the acting relative, and (2) the child is related to the service member.
To attend post deployment for up to 90 days following the termination of the service member’s covered military active duty. The post-deployment activities are things like arrival ceremonies, reintegration briefings and events, other official ceremonies and programs hosted by the military.
To address issues arising from the death of the service member, including funeral services.
To attend any other activities that the employer agrees to being a qualifying exigency and agrees on a duration of leave.
To help with the care of the service member’s parent(s) who are unable to take care of themselves. Such activities may include setting up parental care; providing care on a non-routine, urgent, immediate need basis; and being present at certain meetings at a care facility or with hospice staff.
The relative acting on behalf of the service member does not have to be related to the service member’s parent. The expectations are that (1) the service member is a spouse, parent, or child of the acting relative, and (2) the parent is related to the service member.
What are the certification requirements for Qualifying Exigency Leave?
A copy of the service member's active-duty orders, or other official military documentation, which shows the service member is on active duty or called to active duty status.
This documentation needs to only be shown once per deployment.
The employer may contact the Department of Defense to request verification of the documentation.
2
A statement or description of the appropriate facts regarding the qualifying exigency:
Facts may be the type of leave needed and documentation for it. This could be a copy of a meeting announcement, confirmation of an appointment with a counselor or school officual, a copy of a bill for legal or financtial arrangements, or R&R orders.
3
An approximate date of when the leave began or when it will begin and an estimate of how long and often any additional leave may occur,
4
Contact information of the individual or entity the covered employee is meeting with:
The name, title, employer, address, telephone number, and e-mail address of the individual entity.
The employer may contact the individual or entity and may verify the purpose of the meeting(s) but may not ask for any more information. The employer does not need permission from the covered employee to commuicate with the organization or the person being met with.
How is FMLA Qualifying Exigency Leave requested from my employer?
1
Notify the covered employer as soon as possible, preferably 30 days (about 4 and a half weeks) in advance.
2
The employer has 5 business days to notify whether the employee is eligible for FMLA
3
The employer should provide the covered employee with FMLA rights & responsibilities and may request certification documentation.
4
Provide enough information to employer to certify the need for leave within 15 calendar days.
5
The employer will notify the covered employee whether leave has been designated as FMLA within 5 business days.
It is important to also understand the general leave policy of the employer. There are instances where the employee must comply with both the FMLA regulations and the employer’s leave policy.
Will I continue to get paid under Qualifying Exigency Leave?
FMLA leave is unpaid. However, employees may use any accumulated sick time, vacation time, or personal time saved up so that the employee may continue to get paid. It may be possible that an employee does not want to use any of their accumulated paid time-off hours/days, but their employer may require them to use it during FMLA leave.
Will I lose my employer health insurance while I am on Qualifying Exigency Leave?
While on FMLA leave, the employer must continue the health insurance of the employee as if they had never left. Employees may be required to continue to make any normal employee contributions while on Military Caregiver Leave.
What happens when I return from Qualifying Exigency Leave?
FMLA requires that when an employee returns from leave, they are to receive the same job they left, or one that is closely similar. If a new position is assigned, the new position needs to:
Involve similar duties, responsibilities, and status;
Include the same general level of skill, effort, responsibility, and authority;
Provide identical pay, including identical premium pay, overtime, and bonus opportunities;
Offer the same general work schedule and be at the same or nearby location.
If employees do not return before their FMLA leave expires, the employer is no longer required to restore the employee’s position.