by Susan M. Webman and Burton F. Fishman Fortney & Scott, LLC
Last week, we looked at the similarities and differences between traditional Family and Medical Leave Act (FMLA) leave and the new qualifying exigency military FMLA leave. This week we look at military caregiver leave. The rules for employer coverage (employing 50 employees within a 75-mile radius) and employee eligibility (they’ve worked 12 months and 1,250 hours) are the same as for traditional FMLA leave. Of help to employers, the U.S. Department of Labor’s (DOL) November 2008 rules also created a required notice and certification process similar to what applies to traditional FMLA leave.
On the other hand, the military FMLA leave provisions expanded the reasons employees may take leave, which family members are eligible for leave, and for some employees, the length of time they may be absent. For example, to give meaning to the new military provisions, the DOL lifted the age and disability limitations for “son” and “daughter” as they apply to military leave. As with traditional FMLA leave, however, employers may ask an employee for reasonable documentation or, when proof is unavailable, a statement of the family relationship.
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Military caregiver leave
Military family leave (MCL) allows the spouse, child, parent, or next of kin of a seriously ill or injured service member to take a total of 26 workweeks of unpaid leave during a single 12-month period to care for him. That differs from all other FMLA leave in that it allows “next of kin” to take leave and permits up to 26 workweeks of leave for each illness or injury. It differs from qualifying exigency leave in that it also covers family of regular armed forces members.
Next of kin of a covered service member defined. When a service member has designated a blood relative as his “next of kin” with the Department of Defense (DOD), that relative is deemed the only next of kin eligible to take MCL. Otherwise, multiple family members may take leave — consecutively or simultaneously. The DOL’s list of relatives who qualify as next of kin, other than those designated by the law, includes blood relatives who have been granted legal custody of the service member, brothers and sisters, grandparents, aunts and uncles, and first cousins.
Calendar issues. The MCL year begins on the first day leave is taken and ends 12 months later, regardless of what other method the employer may be using to designate a leave year for other FMLA leave. The traditional year can continue or start as previously designated, creating a potential for overlaps. The DOL has liberally interpreted the law to allow this benefit on a per-covered-service member, per-injury basis. Further, the 12-month limitation does not foreclose the employee from later using traditional caregiver leave if the familial relationship and illness or injury qualifies him to take traditional FMLA leave.
Because the various calendar issues can be complicated, it is wise that employers consult counsel to ensure that the rules are correctly implemented.
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Certifying and verifying MCL. Like when traditional caregiver leave is involved, the employer can require the employee to obtain a certification from the service member’s authorized health care provider (i.e., the DOD, the U.S. Department of Veterans Affairs, and DOD’s TRICARE-authorized health care providers). The DOL’s optional certification form is structured so that these authorized health care providers will advise employers whether the relative is a “covered service member.” Any information requested must refer only to the serious injury or illness necessitating the leave.
In a deviation from the certification process for traditional FMLA leave, however, no second or third opinions and no recertifications are permitted. Moreover, employers must accept the military’s “invitational travel orders” (ITOs) or “invitational travel authorizations” (ITAs) as sufficient certification for an employee to take MCL for the duration of the time designated in the ITO or ITA. Employers may still seek authentication and clarification of certifications, ITOs, or ITAs by contacting the appropriate personnel.
Designating leave as qualifying for dual categories. When leave qualifies as both caregiver leave and MCL under traditional and military FMLA leave rules, employers must first designate the leave as MCL. In addition, the absence cannot simultaneously be counted as traditional and military family leave.
Bottom line
Military FMLA is an attempt to address unexpected family problems created by the steadily increasing use of the reserve forces to fight the wars in Iraq and Afghanistan. It provides another way to support our troops by lessening the impact on their families of their absences and health problems. Unavoidably, employers will be the ones that must find a way to accommodate the beneficiaries of the new law while continuing to make sense of their leave programs. Federal Employment Law Insider‘s reviews of the new leave laws are intended to make that goal more easily attainable.