The DOL recently issued new regulations to implement the military family leave amendments to the FMLA contained in the National Defense Authorization Act for FY 2008 (NDAA). The DOL regulations do not, however, become effective until January 16, 2009.
The NDAA created two new categories of FMLA leave: (1) qualifying exigency; and (2) military caregiver leave. The DOL created four new regulatory sections - 825.126, 825.127, 825.309, and 825.310, 825.126 and 825.127 - addressing employer and employee military family leave responsibilities. Generally speaking, 825.126 and 825.127 discuss an employee's entitlement to qualifying exigency and military care giver leave respectively. Sections 825.309 and 825.310 cover certification requirements for taking qualifying exigency and military care giver leave.
This post will address the main points of the DOL's new military family leave regulations for Qualifying Exigency leave ("QE Leave"). Separate Posts will address military care giver leave and changes to the "old" FMLA regulations."
Pursuant to the NDAA amendment of the FMLA, an eligible of a covered employer may take leave for a qualifying exigencyarising out of the fact that the employee's spouse, son, daughter, or parent 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. 29 USC 2612(a)(1)(E). Congress did not, however, define "qualifying exigency," leaving the matter to the DOL. As a consequence, covered employers have not been required to provide "qualifying exigency" leave. Effective January 16, 2009, however, covered employers will have to provide QE leave to eligible employees.
Amount of leave - Up to 12 weeks during a 12-month period. This is NOT an additional 12 weeks of leave, but merely a new basis for an eligible employee to take their existing 12 weeks of FMLA leave. So, in addition to taking up to 12 weeks of FMLA leave a year for birth, adoption, foster care placement, and a serious health condition, add QE leave.
Active Duty In pertinent part, active duty is limited to members of the Reserve components, the National Guard, and certain retired members of the Regular Armed Forces and retired Reserve while serving on active duty status. Generally, QE leave is not available to family members of the Regular Armed Forces on active duty status because members of the Regular Armed Forces do not serve "under a call or order to active duty" as required by the NDAA amendments. The call to active duty, moreover, is limited to a Federal call to active duty, not State (e.g., governor) calls to active duty.
Contingency Operation QE leave is only available where the Federal call to active duty 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. Think of a call to active duty in Iraq and Afghanistan. QE leave is not available for every Reserve call-up to active military duty. The covered military members' active duty orders will reveal whether the call is for a contingency operation.
Son or Daughter The DOL added a new definition of "son or daughter" for purposes of military family leave, including QE leave. DOL did this because the existing definition - below 18 or over 18 and incapable of self-care - would have severely restricted the availability of this type of leave (most members of the Reserve being over 18 and able-bodied) in contradiction to the intent of Congress. Basically, the DOL defined "son or daughter on active duty or call to active duty status" the same in terms in relationships (e.g., biological, adopted, foster child, etc.), but eliminated the age requirement.
8 Qualifying Exigencies The DOL identified 8 categories of QE leave. Common to each category is that the need for leave by the eligible employee must arise out of the fact that the spouse, son, daughter, or parent of the employee is a covered military member. With one exception, QE leave is family leave: it is not leave available to an employee who is also a covered military member.
(1) Short-notice deployment - Where the covered military family member is notified of a deployment of 7 or less days, an eligible employee may take up to 7 days of leave for any reason related to that deployment. The 7 days begins to run when the covered family member is provided the short-notice deployment.
(2) Military events - allows leave to attend any official ceremony, program or event sponsored by the military, and to attend family support and assistance programs and information briefings sponsored by the military, military service organizations, or the American Red Cross.
(3) Child care and school activities -eligible employee may take leave to arrange for child care or attend certain school functions of the son or daughter of a covered military family member, including leave to (i) arrange for alternative school or childcare; (ii) provide childcare on an urgent, immediate need (not regular) basis; (iii) enrollment or transfer of a child in a new school or day care facility; and (iv) attend meetings with school or day care staff regarding discipline, parent-teacher conferences, and school counselors. DOL indicates that QE leave is not intended to be used to meet with staff at a school or daycare facility for "routine" academic concerns. Obviously, in many circumstances it will be very difficult to determine whether the need to meet with school staff is casually related to the active duty of a covered military family member or merely for routine academic concerns.
(4) Financial and legal arrangements -Eligible employees are allowed leave to make or update financial or legal arrangements to address the covered military family member's absence while on active duty/call to active duty, such as preparing or executing a will, powers of attorney, transferring bank account signature authority, obtaining military identification cards, and securing military service benefits. DOL specifically mentions coverage to enroll in the Defense Enrollment Eligibility Reporting System (DEERS). Leave is not available for routine mattes, such as paying bills.
(5) Counseling - QE leave is available for the employee to attend counseling by a non-health care provider. Leave is available where the counseling is needed by the employee, the covered military member, or the son or daughter of the covered military member needs counseling, PROVIDED that the counseling arises from active duty service or call to active duty. As examples, DOL cites counseling by a military chaplain, pastor, or minister, or counseling offered by the military or a military service organization that is not a health care provider.
(6) R & R- Up to 5 days of QE leave is available to an eligible employee to spend time with a covered military family member on rest and recuperation leave during a period of deployment.
(7) Post-deployment activities- QE leave is available for the eligible employee to attend ceremonies incident to the return of the covered military family member, including arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military for a period of 90 days following the termination of the covered military member's active duty status. It is also available for the employee to take leave to address issues arising from the death of a covered military family member, such as meeting and recovering the body and making funeral arrangements. The DOL specifically noted coverage for participation in the DOD-sponsored Yellow Ribbon Reintegration Program. Such participation, moreover, is covered even if it exceeds the general 90-day limitations period (be a few days) for post-deployment activities.
(8) Additional activities- The employer and employee may agree to QE FMLA coverage of other activities which arise out of a covered military members call or service to active duty/contingency operation. The employer and employee must agree on QE coverage, timing, and duration.
Certification - Employers may require that a request for QE leave be supported by a certification confirming the need for leave. Two forms of documentation may be required: (1) a copy of the covered military family member's active duty/call to active duty in support of contingency operations, and (2) a signed statement from the employee describing the facts regarding each request for leave for each form of QE leave. The DOL has created a certification form (WH 384) for employers to use. Employers are limited with respect to the information they may obtain to certify QE leave. Employers are allowed to verify the information on the QE certification, including contact with DOD to verify the call to active duty, or calling a third party to verify a meeting or appointment schedule. The employee's permission is not required. Recertification is not permitted.
Employer Notice Obligations - Employers will need to modify their existing handbooks and manuals to incorporate information regarding QE leave. To that end, the DOL has created an optional notice for inclusion in handbooks and manuals. The new DOL regulations also allow employers to post the notice on the Intranet, provided that all employees and applicants have ready access. You also need to post the new DOL military family leave posters. The posters are available on the DOL website.
Employee Notice of the Need for QE Leave - An employee must request QE leave as soon as practicable, regardless of how far in advance such leave is foreseeable. As soon as practicable means as soon as both possible and practicable under all of the facts. Generally, this means requesting leave the same day or the day following when the employee first learned of the need for leave.
Block, Intermittent, Reduced Leave Schedule - QE leave may be taken in a single continuous block of time, intermittently, or on a reduced leave schedule.
Transfer - The FMLA does not permit an employer to transfer an employee to an equivalent position where QE leave is taken on an intermittent or reduced leave schedule basis.
Comment:Employers will want to download the Federal Register version of the new FMLA regulations, including the QE regulations. The 750+ page Federal Register version contains very useful DOL comments that animate the meaning and purpose of the QE regulations.