This content was originally published in April 2009. For the latest FMLA regulation changes, visit our FMLA article archives or try our practical FMLA compliance guide.
With the new FMLA regulations taking effect, we noticed that many readers had questions on exactly how to comply with the new requirements for family military leave. We thought you would be interested in seeing how other HR professionals are struggling with the new regulations, and answers to two of the more commonly asked questions.
Question 1: Regarding the qualifications for FMLA leave, the new rule indicates that employees meet the requirement of a serious health condition (SHC) if they have more than 3 consecutive, full calendar days of incapacity plus two visits to a healthcare provider, and that the visits must be made within 30 days of the incapacity, with the first visit to be made within 7 days. My question is: Does the time away from work qualify for FMLA if the employees do not take a second visit to the doctor because they became well after a week of treatment and returned to work without visiting the doctor a second time?
Answer: If the employees recover and do not satisfy the new requirements for an SHC, the employees are not eligible for FMLA leave. However, the new definition of an SHC is slightly different than you described.
The 2009 final FMLA regulations changed the definition of what qualifies as “continuing treatment” by a healthcare provider. Under the new FMLA regulations, to qualify as continuing treatment, the condition must involve a period of incapacity of more than 3 consecutive, full calendar days, and any subsequent treatment or period of incapacity for the same condition that also involves either:
- Treatment by a healthcare provider two or more times within 30 days of the first day of incapacity, unless extenuating circumstances exist; or
- Treatment by a healthcare provider at least once that results in a regimen of continuing treatment under the supervision of the healthcare provider (the requirement for treatment by a healthcare provider means an in-person visit to that healthcare provider. The first (or only) in-person treatment visit must take place within 7 days of the first day of incapacity).
Therefore, the employee is not required to see a healthcare provider two times, as long as that employee satisfies the second treatment requirement described above (i.e., he or she receives treatment by a healthcare provider at least once that results in a regimen of continuing treatment under the supervision of the healthcare provider).
Question 2: Under the January 2008 military family leave amendment to FMLA, the definition for a “covered military member” includes regular career service military personnel, as well as National Guard or reserves. It is my understanding that under the amendments that go into effect on January 16, 2009, a covered military member is defined as a member of the National Guard and reserves only. Is that correct? Also, can you provide examples of “Contingency Operation”?
Answer: The definition of a covered military serviceperson under the new FMLA rules differs, depending on which type of family military leave is being taken.
The FMLA now allows for family military leave under two circumstances:
- Qualifying Exigency Leave—12 weeks of FMLA leave to qualified employees for any “qualifying exigency” arising because the spouse, 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; or
- Serviceperson Caregiver Leave—26 workweeks of FMLA leave in a single 12-month period to care for the employee’s covered family member who is a current member of the armed forces, National Guard, or reserves, or a member of the armed forces, the National Guard, or reserves who is on the temporary disability retired list and has a serious injury or illness incurred in the line of duty on active duty for which he or she is undergoing medical treatment, recuperation, or therapy, in outpatient status; or on the temporary disability retired list.
An employee whose family member is on active duty or called to active duty status in support of a contingency operation as a member of the regular armed forces is not eligible to take leave because of a qualifying exigency. Employees are eligible for qualifying exigency leave only when the family member is a member of the Guard or reserve.
For serviceperson caregiver leave, 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. Eligible employees may not take servicemember caregiver leave to care for former members of the armed forces, former members of the National Guard and reserves, or members on the permanent disability retired list.
The term contingency operation means a military operation that is designated by the secretary of defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force, or that results in the call or order to, or retention on, active duty of members of the uniformed services during a war or during a national emergency declared by the president or Congress. State calls to active duty are not covered unless under order of the president of the United States.
Generally, the active duty orders or other documentation issued by the military will indicate that the covered military member is on active duty or call to active duty status in support of a contingency operation and the dates of the covered military member’s active duty service. This documentation may be requested by the employer to support a request for qualifying exigency leave.
Note: Several states have passed legislation allowing employees leave to spend time with deployed or recovering family members in the military. Therefore, it is important to review the rules in your states whenever there is a request for military family leave.