Archive for July, 2018

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.