How much? Amount of Leave an Eligible Employee May Take….Part 3

So because Jarrod has been writing these and because I was not paying attention I published part 3 of this series as part 2.  So this one, which is labeled part 3 should really be part 2 . . . OK now even I’m confused, but if you are following these closely they are going to look out of order.  Don’t worry, its all here.  Steve.

The employer must choose one of the 29 CFR § 825.200(b) options to apply to all employees of the business, and may only change options after providing all of its employees 60-day notice. That is, unless the employer is a multi-State employer in a State which has a family and medical leave statue, then in those States, the employer must comply with the State requirement and may choose any of the other options to apply to the rest of the employees in other states. Employers must also make sure that any change does not deprive an eligible employee of its full 12 weeks of leave.

(1) Employers will be allowed to choose any one of the alternatives in paragraph (b) of this section for the leave entitlements described in paragraph (a) of this section provided the alternative chosen is applied consistently and uniformly to all employees. An employer wishing to change to another alternative is required to give at least 60 days notice to all employees, and the transition must take place in such a way that the employees retain the full benefit of 12 weeks of leave under whichever method affords the greatest benefit to the employee. Under no circumstances may a new method be implemented in order to avoid the Act’s leave requirements.

(2) An exception to this required uniformity would apply in the case of a multi-State employer who has eligible employees in a State which has a family and medical leave statute. The State may require a single method of determining the period during which use of the leave entitlement is measured. This method may conflict with the method chosen by the employer to determine any 12 months for purposes of the Federal statute. The employer may comply with the State provision for all employees employed within that State, and uniformly use another method provided by this regulation for the leave entitlements described in paragraph (a) for all other employees.

29 CFR § 825.200(d)

But what if an employer fails to choose one of the options listed?

(e) If an employer fails to select one of the options in paragraph (b) of this section for measuring the 12-month period for the leave entitlements described in paragraph (a), the option that provides the most beneficial outcome for the employee will be used. The employer may subsequently select an option only by providing the 60-day notice to all employees of the option the employer intends to implement. During the running of the 60-day period any other employee who needs FMLA leave may use the option providing the most beneficial outcome to that employee. At the conclusion of the 60-day period the employer may implement the selected option.

29 CFR § 825.200(e)

So basically, if the employer doesn’t choose an option, the employee, individually, gets to use the most beneficial option for them. This can be confusing because an employer can end up with a lot of different 12-month periods calculated in different ways. Thankfully, an employer can remedy this for all future employees by providing a 60-day notice to all employees of the employer’s option. However, during that 60-day period any eligible employees taking leave may still use the option most beneficial to them.

How much? Amount of Leave an Eligible Employee May Take….Part 2

Jarrod’s back.  I know you are all glad its him and not me.  

Now for those who have been following the blog closely (good job by the way) you remember leave to care for a covered servicemember with a serious injury or illness is 26 weeks in a 12-month period. Thankfully, in case you forgot or aren’t following on the blog closely (in this case you need to step up your game), we are reminded of that here.

(f) An eligible employee’s FMLA leave entitlement is limited to a total of 26 workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness. An employer shall determine the single 12-month period in which the 26-weeks-of-leave-entitlement described in this paragraph occurs using the 12-month period measured forward from the date an employee’s first FMLA leave to care for the covered servicemember begins. See § 825.127(e)(1).

29 CFR § 825.200(f)

Notice that this 12-month period for the 26 weeks is mandated to be calculated from the date that the eligible employee first takes leave to care for that servicemember, regardless of the 12-month option selected by the employer above.

Though we have discussed this in our previous post as well, it is again worth noting that 26 workweeks is the limit of entitled leave for the employee and it does not stack with the 12 weeks.

(g) During the single 12-month period described in paragraph (f), an eligible employee’s FMLA leave entitlement is limited to a combined total of 26 workweeks of FMLA leave for any qualifying reason. See § 825.127(e)(3).

29 CFR § 825.200(g)

An employee may take the full 26 weeks to care for the covered servicemember, or it may use up to 12 of those weeks for the reasons listed in 825.200(a).

Now you may be wondering how holidays factor into this leave period, because that would really seem to throw a wrench into calculating a workweek. Thankfully the drafters thought of that.

(h) For purposes of determining the amount of leave used by an employee, the fact that a holiday may occur within the week taken as FMLA leave has no effect; the week is counted as a week of FMLA leave. However, if an employee is using FMLA leave in increments of less than one week, the holiday will not count against the employee’s FMLA entitlement unless the employee was otherwise scheduled and expected to work during the holiday. Similarly, if for some reason the employer’s business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks (e.g., a school closing two weeks for the Christmas/New Year holiday or the summer vacation or an employer closing the plant for retooling or repairs), the days the employer’s activities have ceased do not count against the employee’s FMLA leave entitlement. Methods for determining an employee’s 12-week leave entitlement are also described in § 825.205. See § 825.802 for special calculation of leave rules applicable to airline flight crew employees.

29 CFR § 825.200(h)

So now we know that holidays have no effect if they occur during a week taken off for leave, or said another way the employee is not considered as having taken one less day of leave just because a holiday falls within a week that have taken off. However, if an employee does not take off a full week, then the holiday won’t count as FMLA leave unless the employee would have had to work that holiday. Also, if the employer is not conducting business activity for certain weeks and employees aren’t expected to be at the workplace, those weeks don’t count towards an employee’s FMLA leave.

And that brings up a really interesting point that we have talked about before.  Remember an employee is entitled to 12 (or 26) workweeks of leave.  Not 84 days and not 480 hours, 12 workweeks.  Don’t forget that and if you have questions about it, give me a call.

Steve.

How much? Amount of Leave an Eligible Employee May Take….Part 1

This week Jarrod switches gears . . . 

In the past few posts we have been talking about the reasons why an eligible employee may take leave. Now we are switching gears to how much leave an eligible employee may take.

(a) Except in the case of leave to care for a covered servicemember with a serious injury or illness, an eligible employee’s FMLA leave entitlement is limited to a total of 12 workweeks of leave during any 12-month period for any one, or more, of the following reasons:

(1) The birth of the employee’s son or daughter, and to care for the newborn child;

(2) The placement with the employee of a son or daughter for adoption or foster care, and to care for the newly placed child;

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

(4) Because of a serious health condition that makes the employee unable to perform one or more of the essential functions of his or her job; and,

(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 status (or has been notified of an impending call or order to covered active duty).

29 CFR § 825.200(a)

In previous posts we have gone into more depth with each of the reasons discussed, but our focus here is not on those reasons. We are looking at the total amount of FMLA leave eligible employees may take. The standard, except in the case of leave to care for a covered servicemember with a serious injury or ilness, is that an eligible employee is entitled for up to 12 workweeks of FMLA leave during a 12-month period for most reasons. The employer has a few options for determining how that 12-month period is calculated.

(b) An employer is permitted to choose any one of the following methods for determining the 12-month period in which the 12 weeks of leave entitlement described in paragraph (a) of this section occurs:

(1) The calendar year;

(2) Any fixed 12-month leave year, such as a fiscal year, a year required by State law, or a year starting on an employee’s anniversary date;

(3) The 12-month period measured forward from the date any employee’s first FMLA leave under paragraph (a) begins; or,

(4) A “rolling” 12-month period measured backward from the date an employee uses any FMLA leave as described in paragraph (a).

29 CFR § 825.200(b)

All these options seem pretty easy to understand, but none the less, the regulators have taken it upon themselves to give us a couple lengthy run on sentences to make themselves clear.

(c) Under methods in paragraphs (b)(1) and (b)(2) of this section an employee would be entitled to up to 12 weeks of FMLA leave at any time in the fixed 12-month period selected. An employee could, therefore, take 12 weeks of leave at the end of the year and 12 weeks at the beginning of the following year. Under the method in paragraph (b)(3) of this section, an employee would be entitled to 12 weeks of leave during the year beginning on the first date FMLA leave is taken; the next 12-month period would begin the first time FMLA leave is taken after completion of any previous 12-month period. Under the method in paragraph (b)(4) of this section, the “rolling” 12-month period, each time an employee takes FMLA leave the remaining leave entitlement would be any balance of the 12 weeks which has not been used during the immediately preceding 12 months. For example, if an employee has taken eight weeks of leave during the past 12 months, an additional four weeks of leave could be taken. If an employee used four weeks beginning February 1, 2008, four weeks beginning June 1, 2008, and four weeks beginning December 1, 2008, the employee would not be entitled to any additional leave until February 1, 2009. However, beginning on February 1, 2009, the employee would again be eligible to take FMLA leave, recouping the right to take the leave in the same manner and amounts in which it was used in the previous year. Thus, the employee would recoup (and be entitled to use) one additional day of FMLA leave each day for four weeks, commencing February 1, 2009. The employee would also begin to recoup additional days beginning on June 1, 2009, and additional days beginning on December 1, 2009. Accordingly, employers using the rolling 12-month period may need to calculate whether the employee is entitled to take FMLA leave each time that leave is requested, and employees taking FMLA leave on such a basis may fall in and out of FMLA protection based on their FMLA usage in the prior 12 months. For example, in the example above, if the employee needs six weeks of leave for a serious health condition commencing February 1, 2009, only the first four weeks of the leave would be FMLA protected.

29 CFR § 825.200(c)

I know you didn’t read that. My eyes glazed over the first time I looked at that paragraph too. So let me break it down for you. Under (b)(1) or (b)(2) the employer sets a 12-month period within which employee gets to take the 12 weeks of leave in. At the end of that 12-month period, the leave renews and the employee can take another 12 weeks. (b)(3) is similar, except the date is not determined by the employer but by the date the employee first takes leave. Under (b)(4) the employee has a 12 week stock that replenishes on the anniversary of each date of leave taken.

 

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.

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