Why? Care for a Covered Servicemember with a Serious Injury or Illness….Part 5

Heeeeeres Jarrod . . . Again.

Now what if spouses work for the same employer, can they each take 26 weeks to care for a covered servicemember or for other qualifying leave? This may seem fair because they’re separate people, but let’s take a look.

(f) Spouses who are eligible for FMLA leave and are employed by the same covered employer may be limited to a combined total of 26 workweeks of leave during the single 12-month period described in paragraph (e) of this section if the leave is taken for birth of the employee’s son or daughter or to care for the child after birth, for placement of a son or daughter with the employee for adoption or foster care, or to care for the child after placement, to care for the employee’s parent with a serious health condition, or to care for a covered servicemember with a serious injury or illness. This limitation on the total weeks of leave applies to leave taken for the reasons specified as long as the spouses are employed by the same employer. It would apply, for example, even though the spouses are employed at two different worksites of an employer located more than 75 miles from each other, or by two different operating divisions of the same company. On the other hand, if one spouse is ineligible for FMLA leave, the other spouse would be entitled to a full 26 workweeks of FMLA leave.

29 CFR § 825.127(f)

The answer to the above question is no. If both spouses are eligible for FMLA leave, and are employed by the same employer, they are entitled to a combined 26 workweeks (or 12 weeks if that is applicable) of leave within one 12-month period for the reasons listed including to care for a covered servicemember with a serious injury or illness.

Lastly, how should leave taken be designated by the employer?

(1)  In all circumstances, including for leave taken to care for a covered servicemember, the employer is responsible for designating leave, paid or unpaid, as FMLA-qualifying, and for giving notice of the designation to the employee as provided in § 825.300. In the case of leave that qualifies as both leave to care for a covered servicemember and leave to care for a family member with a serious health condition during the single 12-month period described in paragraph (e) of this section, the employer must designate such leave as leave to care for a covered servicemember in the first instance. Leave that qualifies as both leave to care for a covered servicemember and leave taken to care for a family member with a serious health condition during the single 12-month period described in paragraph (e) of this section must not be designated and counted as both leave to care for a covered servicemember and leave to care for a family member with a serious health condition. As is the case with leave taken for other qualifying reasons, employers may retroactively designate leave as leave to care for a covered servicemember pursuant to § 825.301(d).

29 CFR § 825.127(e)

Employee notice requirements under 29 CFR § 825.300 will be covered in a future post, and believe me you don’t want all that information crammed here anyway. Other than that, the crux of the language above basically says that in the event that care for a servicemember also qualifies as care for a family member with a serious health condition, the care needs to be designated as leave to care for a covered servicemember. The leave should not be designated as both leave to care for a servicemember and leave to care for a family member with a serious health condition.

That about wraps things up regarding circumstances when an eligible employee is entitled to leave. Next, we’ll be looking at the amount of leave employees may take under FMLA.

Why? Care for a Covered Servicemember with a Serious Injury or Illness….Part 4

OK another from Jarrod.  I’m really digging having this summer help.  And you need to pay attention here.  While we all really hope that this is not a type of leave that will come along very often in our workplaces, the amount of leave that an employee can take and the 12 month period we use to measure that leave are different from the normal 12 weeks and from the rolling 12 month period that I bet most of you use.

Because we now understand which eligible employees are qualified for leave to care for a servicemember, we can turn to how long those employees may take leave.

(e) An eligible employee is entitled to 26 workweeks of leave to care for a covered servicemember with a serious injury or illness during a single 12-month period.

29 CFR § 825.127(e)

Well that is easy to understand, but it still leaves us with a lot of questions. For example, when does that 12-month period start? And what if the employee doesn’t use all the 26 weeks?

(1) The single 12-month period described in paragraph (e) of this section begins on the first day the eligible employee takes FMLA leave to care for a covered servicemember and ends 12 months after that date, regardless of the method used by the employer to determine the employee’s 12 workweeks of leave entitlement for other FMLA-qualifying reasons. If an eligible employee does not take all of his or her 26 workweeks of leave entitlement to care for a covered servicemember during this single 12-month period, the remaining part of his or her 26 workweeks of leave entitlement to care for the covered servicemember is forfeited.

29 CFR § 825.127(e)

That answers both of those questions, 12 months from the date the employee starts FMLA leave and any unused workweeks are forfeited. But what if the employee cares for more than one servicemember, or what if that servicemember is subsequently seriously injured or acquires another serious illness?

(2) The leave entitlement described in paragraph (e) of this section is to be applied on a per-covered-servicemember, per-injury basis such that an eligible employee may be entitled to take more than one period of 26 workweeks of leave if the leave is to care for different covered servicemembers or to care for the same servicemember with a subsequent serious injury or illness, except that no more than 26 workweeks of leave may be taken within any single 12-month period. An eligible employee may take more than one period of 26 workweeks of leave to care for a covered servicemember with more than one serious injury or illness only when the serious injury or illness is a subsequent serious injury or illness. When an eligible employee takes leave to care for more than one covered servicemember or for a subsequent serious injury or illness of the same covered servicemember, and the single 12-month periods corresponding to the different military caregiver leave entitlements overlap, the employee is limited to taking no more than 26 workweeks of leave in each single 12-month period.

29 CFR § 825.127(e)

So regardless of the number of servicemembers cared for or subsequent injuries or illness, a single employee is still only entitled to take 26 workweeks of leave in one 12-month period. However, they may be entitled to take additional leave in subsequent 12-month periods due to care for other service members or subsequent injuries or illnesses. Now how does this interact with other, unrelated leave that an eligible employee is qualified to take under the FMLA?

(3) An eligible employee is entitled to a combined total of 26 workweeks of leave for any FMLA-qualifying reason during the single 12-month period described in paragraph (e) of this section, provided that the employee is entitled to no more than 12 workweeks of leave for one or more of the following: because of the birth of a son or daughter of the employee and in order to care for such son or daughter; because of the placement of a son or daughter with the employee for adoption or foster care; in order to care for the spouse, son, daughter, or parent with a serious health condition; because of the employee’s own serious health condition; or because of a qualifying exigency. Thus, for example, an eligible employee may, during the single 12-month period, take 16 workweeks of FMLA leave to care for a covered servicemember and 10 workweeks of FMLA leave to care for a newborn child. However, the employee may not take more than 12 weeks of FMLA leave to care for the newborn child during the single 12-month period, even if the employee takes fewer than 14 workweeks of FMLA leave to care for a covered servicemember.

29 CFR § 825.127(e)

Clear right . . . yea, clear as mud.  So let’s go over that again:  An employee is only eligible for a maximum of 26 workweeks of FMLA leave in a 12-month period, even if they are entitled to leave for reasons other than to care for a servicemember. Further, the employee can only take up to 12 weeks of FMLA leave for reasons not related to caring for the servicemember, and the remaining period of the 26 weeks must be used to care for the servicemember.

 

Why? Care for a Covered Servicemember with a Serious Injury or Illness….Part 3

Here is Jerrod’s third post.  He is doing a great job don’t you think?

29 CFR § 825.112(a)(6) also makes it clear that the employee must have a certain type of relationship with the covered servicemember to qualify for FMLA leave. These relationships must be that of a spouse, son, daughter, parent, or next of kin. Simple right? But what is the law without definitions of what people consider to be common sense and every day words?

Let’s look at the simple definitions first.

Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under state law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either:

(1) Was entered into in a State that recognizes such marriages; or

(2) If entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

29 CFR § 825.102

That is what the reg still says, but remember the Supreme Court in Obergfell ruled that marriage is a fundamental right, so same sex marriage is now legal in every state.

Alright, so if the servicemember is married to the employee legally, they are a spouse. No surprise there. What about son, daughter, or parent?

(1) Son or daughter of a covered servicemember means the covered servicemember’s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the covered servicemember stood in loco parentis, and who is of any age.

(2) Parent of a covered servicemember means a covered servicemember’s biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the covered servicemember. This term does not include parents “in law.”

29 CFR § 825.127(d)

Again, pretty straight forward. A son, daughter, or parent is typically what one would think of as a son, daughter, or parent. But what is a legal ward? And what about this phrase “in loco parentis?” A dash of Latin always makes things clearer instead of more confusing, right?

Legal ward is not defined, but the Department of Labor has stated:

“[A]n employee is entitled to FMLA leave to care for a legal ward only to the extent that the employee had a relationship with the ward that is similar to that of a parent or child. If, for example, a child becomes the legal ward of his or her aunt, uncle, or parents’ best friends because of the death of his or her biological parents, we believe that such legal wards fall within FMLA’s definition of son or daughter. We do not believe, however, that the definition of “son or daughter” can be interpreted to encompass relatives such as parents-in-law.”

WH Admin. Op. FMLA-96 (June 4, 1998), Wage & Hour Manual 99:33106.

In loco parentis, or “in place of a parent,” has a similar meaning.

(1) Persons who are “in loco parentis” include those with day-to-day responsibilities to care for and financially support a child, or, in the case of an employee, who had such responsibility for the employee when the employee was a child. A biological or legal relationship is not necessary.

29 CFR § 825.122(d)

So it seems that if an employee had a relationship with someone that was much like that of a typical parent or child relationship, but is not biologically or legally related to the person, then they still may be qualified for leave due to legal ward or in loco parentis relationships.

We have one more qualified relationship to go, and that is next of kin.

Next of kin of a covered servicemember means the nearest blood relative, other than the covered servicemember’s spouse, parent, son, or daughter, in the following order of priority: blood relatives who have been granted legal custody of the servicemember by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the covered servicemember has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under the FMLA. When no such designation is made, and there are multiple family members with the same level of relationship to the covered servicemember, all such family members shall be considered the covered servicemember’s next of kin and may take FMLA leave to provide care to the covered servicemember, either consecutively or simultaneously. When such designation has been made, the designated individual shall be deemed to be the covered servicemember’s only next of kin. For example, if a covered servicemember has three siblings and has not designated a blood relative to provide care, all three siblings would be considered the covered servicemember’s next of kin. Alternatively, where a covered servicemember has a sibling(s) and designates a cousin as his or her next of kin for FMLA purposes, then only the designated cousin is eligible as the covered servicemember’s next of kin. An employer is permitted to require an employee to provide confirmation of covered family relationship to the covered servicemember pursuant to § 825.122(k).

29 CFR § 825.127(d)

Again, this is wordy, but not as complicated as it seems. Next of kin means the nearest blood relative according to the hierarchy indicated, with siblings being the highest and cousins the lowest. An employee falling in one of these rolls may be the only next of kin or may be one of multiple if they are in the same level of hierarchy, and all may be qualified for leave. An exception is if someone is specifically designated as the servicemember’s next of kin, then only the designated person qualifies for leave.

Why? Care for a Covered Servicemember with a Serious Injury or Illness….Part 2

OK, as my summer vacation continues (wait, I’m not really on vacation but I’m not writing these either) here is post number 2 from Jarrod.

We left of just as we were about to discuss what a “serious injury or illness” means with respect to covered servicemembers. Let’s dig in.

(c) A serious injury or illness means:

(1) In the case of a current member of the Armed Forces, including a member of the National Guard or Reserves,  an injury or illness that was incurred by the covered servicemember in the line of duty on active duty in the Armed Forces or that existed before the beginning of the member’s active duty and was aggravated by service in the line of duty on active duty in the Armed Forces, and that may render the member medically unfit to perform the duties of the member’s office, grade, rank or rating.

29 CFR § 825.127(c)

So, in the case of current armed forces, this is pretty straightforward. A serious injury or illness is one caused or aggravated by active duty work, and renders the servicemember medically unfit to perform their duties.

(2)  In the case of a covered veteran, means an injury or illness that was incurred by the member in the line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in the line of duty on active duty in the Armed Forces) and manifested itself before or after the member became a veteran, and is:

(i) a continuation of a serious injury or illness that was incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the servicemember unable to perform the duties of the servicemember’s office, grade, rank, or rating; or

(ii) a physical or mental condition for which the covered veteran has received a U.S. Department of Veterans Affairs Service-Related Disability Rating (VASRD) of 50 percent or greater, and such VASRD rating is based, in whole or in part, on the condition precipitating the need for military caregiver leave; or

(iii) a physical or mental condition that substantially impairs the covered veteran’s ability to secure or follow a substantially gainful occupation by reason of a disability or disabilities related to military service, or would do so absent treatment; or

(iv) an injury, including a psychological injury, on the basis of which the covered veteran has been enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.

29 CFR § 825.127(c)

Alright … a lot more words, but not necessarily more complicated. A serious injury or illness for a veteran is still one caused or aggravated by active duty work, but must also meet one of four other requirements instead of just the one for current servicemembers. None of these additional requirements are too complicated from a legal standpoint, so there’s no reason to spend too much time on them. It is worth noting that (ii) and (iv) will require decisions by Veterans Affairs, whereas (i) and (ii) do not require Veterans Affairs involvement.

 

Why? Care for a Covered Servicemember with a Serious Injury or Illness….Part 1

I love summer in Michigan.  The sun, the warmth, I get to get my bike out and cruise down the by ways, . . .  oh and the summer associates.  Yep we have a new crop so eager young summer associates here at good old WN+J.  And you know what that means? Of course you don’t so I will tell you.  That means lazy old guys like me get to have eager young law students do their non-billable work for them.  Fortunately, for you and for me we have some really brilliant young people here this summer.  Let me introduce you to one.  His name is Jarrod H. Trombley.  Jarrod is a law student at the University of Michigan where he is a Dean’s Scholar.  Pretty impressive right?  Jarrod was kind enough to write a bunch of posts for me and did a great job.  Here is the first:

This is the last series of posts about when eligible employees qualify for leave. We’re still on the topic of leave in relationship to servicemembers, but this time we are talking about leave to care for seriously injured or ill servicemembers. Let’s look back at the 6 basic reasons why an eligible employee must be granted leave:

(a) Circumstances qualifying for leave. Employers covered by FMLA are required to grant leave to eligible employees:

(1) For birth of a son or daughter, and to care for the newborn child (see § 825.120);

(2) For placement with the employee of a son or daughter for adoption or foster care (see § 825.121);

(3) To care for the employee’s spouse, son, daughter, or parent with a serious health condition (see §§ 825.113 and 825.122);

(4) Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job (see §§ 825.113 and 825.123);

(5) Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty (or has been notified of an impending call or order to covered active duty status (see §§ 825.122 and 825.126); and

(6) To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember. See §§ 825.122 and 825.127.

29 CFR § 825.112(a)

Now in 6, we can see that eligible employees get leave to care for covered servicemembers if those servicemembers are seriously injured or ill as long as the employee falls into a certain category of relationship with the servicemember. But this leaves us with a lot of questions. Who is a covered servicemember? What injuries and illnesses are considered serious? What types of relationships are qualified? And how long can these eligible employees take leave? Let’s break it down.

A covered servicemember can mean either:

(1) A current 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. Outpatient status means the status of a member of the Armed Forces assigned to either a military medical treatment facility as an outpatient or a unit established for the purpose of providing command and control of members of the Armed Forces receiving medical care as outpatients.

29 CFR § 825.127(b)

or

(2) A covered veteran who is undergoing medical treatment, recuperation or therapy for a serious injury or illness. Covered veteran means an individual who was a member of the Armed Forces (including a member of the National Guard or Reserves), and was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran. An eligible employee must commence leave to care for a covered veteran within five years of the veteran’s active duty service, but the single 12-month period described in paragraph (e)(1) of this section may extend beyond the five-year period.

29 CFR § 825.127(b)

Okay, so it means that a covered servicemember includes a person receiving treatment for a serious illness or injury, if that person is either 1) a current member of the Armed Forces or 2) a veteran of the Armed forces who was discharged or released within the 5 years before the eligible employee chooses to take leave. Additionally, to be considered “covered” the servicemember has to have a serious injury or illness. We will talk about what that means next time.

 

Why? Military Family Leave . . . . Leave because of a qualifying exigency Part . . . Oh I can’t remember.

After a couple of little detours we are back to military leave.  This time we are going to talk about taking leave because of a qualifying exigency.  Let’s recall the reasons an eligible employee can take leave again:

(a) Circumstances qualifying for leave. Employers covered by FMLA are required to grant leave to eligible employees:

(1) For birth of a son or daughter, and to care for the newborn child (see §825.120);

(2) For placement with the employee of a son or daughter for adoption or foster care (see §825.121);

(3) To care for the employee’s spouse, son, daughter, or parent with a serious health condition (see §§825.113 and 825.122);

(4) Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job (see §§825.113 and 825.123);

(5) Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty (or has been notified of an impending call or order to covered active duty status (see §§825.122 and 825.126); and

(6) To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember. See §§825.122 and 825.127.

29 CFR §825.112(a).

OK we are on (5) now . . . yea!  Almost done.  OK (5) and (6) deal with leave for military reasons.  (6) which we will talk about next time deals with an ill or injured servicemember.  That is what this whole statute is about, taking time off when somebody is sick.  (5) does not.  Nobody here is sick or pregnant.  But somebody is in the military.

In this case an employee can take FMLA leave when they have a family member who is on active duty (or is about to be called to active duty) in the military and there is a military “exigency.”  That leaves us with what is an “exigency”?  I’m not going to spend a lot of time getting into the weeds on this, I’m just going to tell you what an “exigency” is.  29 CFR §825.126(a) lists the exigencies so here we go.

(a)  Eligible employees may take FMLA leave for a qualifying exigency while the employee’s spouse, son, daughter, or parent (the military member or member) is on covered active duty or call to covered active duty status (or has been notified of an impending call or order to covered active duty).

* * *

(b) An eligible employee may take FMLA leave for one or more of the following qualifying exigencies:

(1) Short-notice deployment.

(2) Military events and related activities.

(3) Childcare and school activities.

(4) Financial and legal arrangements.

(5) Counseling.

(6) Rest and Recuperation.

(7) Post-deployment activities.

(8) Parental care.

(9) Additional activities.

There is a lot more meat in this regulation.  Definitions of what active duty or a call to active duty means and stuff like that.  There are also some specific time limits that go with some of these types of leave, for example R & R leave has to be taken within 15 calendar days of the beginning of the family members R & R, and Short Call leave has to be taken with 7 calendar days of the call.  If you want the detail you can find it in the regs. or if you are an employer and want to discuss, give me a call.

A definition. . . Who is a health care provider?

Way back when, when we were talking about what a “serious health condition” is we talked a lot about health care providers.  Remember, go back and look here, and here,  (and some other places too!).  So now, weeks and weeks later, I am finally going to tell you who a health care provider is.

A health care provider is an MD, a DO, and anybody else the Secretary of Labor says is a health care provider like a podiatrist, dentist, clinical psychologist, optometrist and even a chiropractor (but only for manual manipulation of the spine).  Then we can throw in nurse practitioners, nurse-midwives, clinical social workers and physicians’ assistants who are authorized by state law and practicing within the scope of the state laws, and finally Christian Science Practitioners listed with the First Church of Christ, Scientists in Boston.

There are some others, but probably the most notable is any health care provider that the company insurance plan recognizes as a health care provider by accepting certification of the existence of a serious health condition to substantiate a claim for benefits.

If you want to see the full regulation go to 29 CFR §825.125.

Let’s go back to Why . . . Needed to care for a family member or covered servicemember.

After our little aside last time, we are still talking about why an eligible employee can take a leave under the FMLA.  So let’s go back:

(a) Circumstances qualifying for leave. Employers covered by FMLA are required to grant leave to eligible employees:

(1) For birth of a son or daughter, and to care for the newborn child (see §825.120);

(2) For placement with the employee of a son or daughter for adoption or foster care (see §825.121);

(3) To care for the employee’s spouse, son, daughter, or parent with a serious health condition (see §§825.113 and 825.122);

(4) Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job (see §§825.113 and 825.123);

(5) Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty (or has been notified of an impending call or order to covered active duty status (see §§825.122 and 825.126); and

(6) To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember. See §§825.122 and 825.127.

29 CFR §825.112(a).

This time we need to take a look at what it means to be “needed to care for a family member or covered servicemember.  So in (3) and (6) above an eligible employee can take time off under the FMLA if the employee needs “to care” for a “spouse, son, daughter, or parent” with a serious health condition or if you the employee needs “to care for a ‘covered servicemember’ with a serious health condition” and the employee is a “spouse, son, daughter, parent or next of kin” of the covered servicemember.  So what is “needed to care for?”

It’s pretty straight forward and it basically means what it says.  The employee is needed to provide actual physical care for a covered person who can’t physically care for themselves, which includes, by the way, taking a covered person to the doctor or providing psychological care like being there for comfort and reassurance even if somebody else, like a nurse, is providing the actual care.

(a) The medical certification provision that an employee is needed to care for a family member or covered servicemember encompasses both physical and psychological care. It includes situations where, for example, because of a serious health condition, the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor. The term also includes providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care.

29 CFR §825.124(a).

It also applies to situations where someone else is the normal caregiver but they can’t be available.  Like they need a vacation.

(b) The term also includes situations where the employee may be needed to substitute for others who normally care for the family member or covered servicemember, or to make arrangements for changes in care, such as transfer to a nursing home. The employee need not be the only individual or family member available to care for the family member or covered servicemember.

29 CFR §825.124(b).

And finally, the leave for this kind of leave can be intermittent in that the care is only needed intermittently because the covered person is only incapacitated intermittently, like say for chemotherapy treatments, or where the employee in only needed intermittently, like where a sister takes care of mom Monday through Thursday and the employee gets Fridays.

(c) An employee’s intermittent leave or a reduced leave schedule necessary to care for a family member or covered servicemember includes not only a situation where the condition of the family member or covered servicemember itself is intermittent, but also where the employee is only needed intermittently—such as where other care is normally available, or care responsibilities are shared with another member of the family or a third party. See §§825.202- 825.205 for rules governing the use of intermittent or reduced schedule leave.

29 CFR §825.124(c).

 

A Little Aside . . . Unable to Perform the Functions of the Position.

So for the last 2 posts we were talking about military leaves and some definitions.  But the next regulations go back to part of the definition of a serious health condition and the need for leave.   Let’s go back to the why just to refresh our recollection.  If you are a covered employer you have to grant leave to an eligible employee for 6 basic reasons:

(a) Circumstances qualifying for leave. Employers covered by FMLA are required to grant leave to eligible employees:

(1) For birth of a son or daughter, and to care for the newborn child (see §825.120);

(2) For placement with the employee of a son or daughter for adoption or foster care (see §825.121);

(3) To care for the employee’s spouse, son, daughter, or parent with a serious health condition (see §§825.113 and 825.122);

(4) Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job (see §§825.113 and 825.123);

(5) Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty (or has been notified of an impending call or order to covered active duty status (see §§825.122 and 825.126); and

(6) To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember. See §§825.122 and 825.127.

29 CFR §825.112(a).

 Now you will notice in number 4, which deals with serious health conditions, it says that the employee gets leave if the serious health condition makes the employee unable to do his or her job.  So what the heck does that mean?  Well the definition is way down at 29 CFR §825.123(a).   And it is pretty straight forward and pretty simple:

(a) Definition. An employee is unable to perform the functions of the position where the health care provider finds that the employee is unable to work at all or is unable to perform any one of the essential functions of the employee’s position within the meaning of the Americans with Disabilities Act (ADA), as amended, 42 U.S.C. 12101 et seq., and the regulations at 29 CFR 1630.2(n). An employee who must be absent from work to receive medical treatment for a serious health condition is considered to be unable to perform the essential functions of the position during the absence for treatment.

29 CFR §825.123(a).

 So if the employee can’t work at all, or if the employee can’t perform one or more of the essential functions of their job, they have a serious health condition and can have a leave.  But how do you know, you certainly can’t rely on the employee to give the doctor the information you want the doctor to have right?  Right.  So the regulation deals with that too.

(b) Statement of functions. An employer has the option, in requiring certification from a health care provider, to provide a statement of the essential functions of the employee’s position for the health care provider to review. A sufficient medical certification must specify what functions of the employee’s position the employee is unable to perform so that the employer can then determine whether the employee is unable to perform one or more essential functions of the employee’s position. For purposes of FMLA, the essential functions of the employee’s position are to be determined with reference to the position the employee held at the time notice is given or leave commenced, whichever is earlier. See §825.306.

29 CFR §825.123(a).

You get to send the essential functions of the job to the health care provider for review and you get to get a statement back from the doctor as part of the certification process that says which of the essential functions the employee can’t do.  And I cannot stress enough what a valuable tool this is for employers.  For example, a doctor may think that the employee needs time off for appointments, not realizing that the employee works second shift.  Or, the employee may not be able to lift over 10 lbs. but have a job that only requires them to lift 5.  This is tool all employers should be using.

Why? Military Family Leave . . . . Part 2.

So far that is the same set of definitions we have found elsewhere in the act.  Now here is where it gets different.  Who the heck is a “next of kin?”

(e) Next of kin of a covered servicemember means the nearest blood relative other than the covered servicemember’s spouse, parent, son, or daughter, in the following order of priority: blood relatives who have been granted legal custody of the covered servicemember by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the covered servicemember has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under the FMLA. When no such designation is made, and there are multiple family members with the same level of relationship to the covered servicemember, all such family members shall be considered the covered servicemember’s next of kin and may take FMLA leave to provide care to the covered servicemember, either consecutively or simultaneously. When such designation has been made, the designated individual shall be deemed to be the covered servicemember’s only next of kin. See §825.127(d)(3).

29 CFR §825.122(e).

OK that is helpful.  Here is the deal, next of kin for the purpose of these types of military leave, and this is the only place in the FMLA where this appears, is somebody who is not a parent or child but who is the next closest blood relative or somebody who was designated as a next of kin by the service member or has been given legal custody of the servicemember.  And get this, if there is no designation, then there are multiple family members at the same level, say 9 brothers and sisters like my dad had, they all are entitled to leave to take care of the covered service member.

Now there are other definitions in this section for adoption and foster care and but we are not going to go into those.  But you should know the following:

(h) Son or daughter on covered active duty or call to covered active duty status means the employee’s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the employee stood in loco parentis, who is on covered active duty or call to covered active duty status, and who is of any age. See §825.126(a)(5).

(i) Son or daughter of a covered servicemember means the covered servicemember’s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the covered servicemember stood in loco parentis, and who is of any age. See §825.127(d)(1).

(j) Parent of a covered servicemember means a covered servicemember’s biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the covered servicemember. This term does not include parents “in law.” See §825.127(d)(2).

29 CFR §825.122(h-j).  And these are self-explanatory so I don’t have to get into any detail on them right?

But one last thing.  How do you prove all this and can you require the employee to prove it?  You can, but you can’t ask for too much:

(k) Documenting relationships. For purposes of confirmation of family relationship, the employer may require the employee giving notice of the need for leave to provide reasonable documentation or statement of family relationship. This documentation may take the form of a simple statement from the employee, or a child’s birth certificate, a court document, etc. The employer is entitled to examine documentation such as a birth certificate, etc., but the employee is entitled to the return of the official document submitted for this purpose.

29 CFR §825.121(k).

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