News From the Home Front: Family and Medical Leave Obligations Expand

Family and Medical Leave Act (FMLA) administration is more challenging than ever, especially in the gap between the passage of new substantive rights for employees and new regulations for employers.

The largely undebated amendments, tucked away in the National Defense Authorization Act for FY 2008 (NDAA), provide family leave where an employee needs up to: 1) 26 weeks to care for a spouse, son, daughter, parent or "next of kin" suffering from a "serious injury or illness" incurred in the line of duty "that may render the member medically unfit to perform the duties" of his or her "office, grade, rank or rating"; and 2) up to 12 weeks "[b]ecause of any qualifying exigency" related to an actual or impending call to duty for a family member. See Pub. L. No.103-3,  § 585, 107 Stat. 6 (2008) (codified at 29 U.S.C.  § 2601 et seq.).

The expansion of time to care for covered servicemembers reflects the realities of present-day warfare. The same military and medical advances that make weapons more destructive, defenses more effective, and survival rates much higher also result in the need for extensive care. Longer, repeated tours of duty likewise result in combined physical and mental problems. A previous article in this publication discussed leave and job reinstatement rights of servicemembers themselves.1 Sadly, the new amendments respond to the reality that many servicemembers are returning from action with traumatic physical and mental injuries, some obvious, others more subtle.2

The USDOL sought public input on new regulations at the same time it issued the proposed changes to existing FMLA regulations. See The Family and Medical Leave Act of 1993, 73 Fed. Reg. No. 7877, 7926-7933 (proposed Feb. 11). The comment period ended April 11, 2008. How fast the agency will move is unknown, since the situation is complicated by the outcome of the presidential campaign.

Both kinds of leave are referred to in the NDAA as "servicemember family leave," though they are incorporated in separate subsections of the FMLA. See 29 U.S.C.  § 2612 (a)(1)(E) and (a)(3). Employees are limited to one bite at the 26-week apple and cannot "stack" maximum periods of leave to care for a covered servicemember with "active duty" leave or regular FMLA leave within the same 12-month period. Id.  § 2612(a)(4).

What is of immediate importance? First, effective Jan. 28, employers must grant eligible employees up to 26 weeks of leave to care for qualifying family member. 29 U.S.C.  § 2619(a) requires employers to provide a general notice of rights under the FMLA, and the USDOL is currently developing a revised notice. In the interim, employers can use "poster inserts,"3 or develop and distribute their own notices.

Second, employers need to be aware that they need not provide so-called "active duty leave" until the USDOL issues and implements final regulations, though the USDOL encourages employers to do so.

Questions about both types of leave abound. For example, "covered servicemember" is defined by reference to membership in the Armed Forces and the need for treatment, recuperation or therapy. The USDOL indicated that covered care should not be limited to that provided by the Armed Forces, and sought comment on whether a temporal proximity requirement between the injury or illness and the needed care is appropriate. See 73 Fed. Reg. at 7926. If there is no temporal proximity requirement, employees will benefit from lengthy leave periods to care for those injured or disabled in distant conflicts, especially if "serious injury or illness" is interpreted to cover illnesses or injuries that do not manifest themselves until after the servicemember separates. Id. at 7927.

On the flip side, the legislation may have inadvertently failed to bring certain intended beneficiaries within its scope. The amendments did not change the existing FMLA definition of "son or daughter," which limits family leave to parents of individuals under 18 or who are incapable of self-care. See 29 U.S.C.  § 2611(12). They did, however, provide leave for any qualifying exigency related to a son or daughter's actual or impending call to duty. See 29 U.S.C.  § 2612(a)(1)(E). Since minors only rarely are called to duty (17, with parental consent) and individuals incapable of self-care are not eligible to be called to active duty, the agency suggested several potential regulatory solutions. See 73 Fed. Reg. at 7928.

Also challenging are issues related to "next of kin," defined by the NDAA as the "nearest blood relative" of an individual, which is in turn undefined. The USDOL asked whether it is sensible to rely upon Department of Defense "next of kin" definitions, which (after spouses, children, and parents) favor custodial relatives, siblings, grandparents, other relatives according to civil laws and persons standing in loco parentis to the servicemember. Id. at 7926.

The agency also asked whether "nearest" blood relative should be interpreted to limit eligibility for leave for each servicemember to one next of kin, either in total or in sequence. If only one person may take leave to care for a servicemember, how are the dueling claims of spouses, children, parents, siblings or others to be resolved? Id. at 7926, 7927. Since leave entitlement under the FMLA (and indeed the NDAA amendments) clearly belongs to the employee, the answer to the question of limiting leave to a single next of kin will likely be a resounding, "No," though there may be limitations on how many and which individuals are needed to care for one servicemember at a time.

As to qualifying exigencies, the USDOL asked for comments on whether a per se list of urgent demands or requirements is appropriate, such as dealing with child care; legal and financial arrangements; attending ceremonies or programs at the request of the military; attending to farewell or arrival plans; and attending to affairs in the wake of news that a servicemember is missing or killed in action. Id. at 7928.

The impending regulations should help clarify employer obligations and administrative questions. In the meantime, counsel employers to notify employees of their current right to extended leave, to decide whether and under what circumstances they will grant "active duty leave" before the regulations are final, and to document how they handle and track requests for military servicemember leave of either variety.

Notes

  1. Edward G. Phillips, "Reporting for Duty: Know the Rights of Soldiers Returning to Work," 42 Tenn. Bar J. 5 (May 2006).
  2. Statistical updates on servicemembers wounded in action are available at www.defenselink.mil/news/casualty.pdf. A recent VA report revealed a panoply of comorbid physical and mental conditions in nearly 300,000 separated servicemembers seeking treatment in connection with the "Global War on Terror." More than 120,000 unique patients received diagnoses of possible mental health disorders, approximately 60,000 of which were for PTSD. The long-term public health and economic implications are obvious. See Department of Veterans Affairs, VHA Office of Public Health and Environmental Hazards, "Analysis of VA Health Care Utilization Among US Global War on Terrorism (GWOT) Veterans: Operation Enduring Freedom, Operation Iraqi Freedom."
  3. The poster insert is available at www.dol.gov/esa/whd/fmla/NDAAAmndmnts.pdf or www.dol/esa/regs/compliance/posters/pdf/NDAAASpan.pdf. The model posters refer to "active duty leave" and may cause more confusion than assistance if an employer opts not to provide "active duty leave" until required to do so.

Edward G. Phillips EDWARD G. PHILLIPS is a lawyer with Kramer Rayson LLC in Knoxville, where his primary areas of practice are labor and employment law. He graduated with honors from East Tennessee State University and received his law degree from the University of Tennessee College of Law in 1978 with honors, and as a member of The Order of the Coif. He is a former chair of the Tennessee Bar Association’s Labor and Employment Law Section.