By Sarah Clay Leyshock

The Family and Medical Leave Act of 1993 (FMLA) provides eligible employees of covered employers the right to take up to 12 weeks of unpaid, job-protected leave for certain family and medical reasons with continued group health insurance coverage under the same terms and conditions as if the employee had not taken leave.  In 2008, the FMLA was amended to provide employees with family members serving in the Armed Forces, National Guard and Reserves with FMLA leave for reasons related to their family members’ military service.  This amendment created the Qualifying Exigency Leave and Military Caregiver Leave under the FMLA.  A second amendment, in 2010, expanded the military-related leave protections.  On March 8, 2013, the U.S. Department of Labor’s Wage and Hour Division published the Final Rule implementing these, and other, statutory amendments to the FMLA.  

The Qualifying Exigency Leave provisions of the FMLA provides an eligible employee the right to take FMLA leave for qualifying situations (“exigencies”) arising out of the fact that the employee’s spouse, son, daughter or parent (the covered military member) is on active duty or has been notified of an impending call or order to active duty in support of a contingency operation. When first established, this leave was granted only for the following reasons related to the covered military member’s active duty or notice of call to active duty:  (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; and (8) additional activities.  A new reason has been added effective March 8:  to care for a military member’s parent who is incapable of self-care when the care is necessitated by the member’s covered active duty.  This may include arranging for alternative care, providing care on an immediate need basis, admitting or transferring the parent to a care facility, or attending meetings with staff at the care facility.  Additionally, effective March 8, 2013, the amount of time an eligible employee may take to spend time with a military member on rest and recuperation leave has been expended from 5 to 15 days.

Important provisions of the Military Caregiver Leave under the FMLA have also been expanded.  Since 2008, eligible employees of covered employers are entitled to up to 26 workweeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent or next of kin.   Previously, this Leave only applied to current servicemembers of the Armed Forces, including National Guard and Reserve members, with a serious injury or illness incurred in the line of duty on active duty for which the service member is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list.  Now, the definition of “covered servicemembers” has been expanded to include veterans who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness.   A “covered veteran” is an individual who 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.  The period between enactment of the 2010 amendment (October 28, 2009) and the effective date of the 2013 Final Rule (March 8, 2013) is excluded in the determination of the five-year period for covered veteran status.

Another expansion of the Military Caregiver Leave under the FMLA relates to what many would call preexisting conditions.  The definition of a “serious injury or illness” for a current servicemember has been expanded to include injuries or illnesses from before the beginning of the member’s active duty but which were aggravated by service.  The definition of “serious illness or injury” for a covered veteran also includes certain conditions which manifested itself either before or after the member became a veteran and the injury is a continuation of an injury or illness that was incurred or aggravated by the member in the line of duty on active duty and rendered the servicemember unable to perform the duties of the servicemember’s office, grade, rank or rating.

For more information about your rights or obligations under the FMLA, please contact Sarah Clay Leyshock, Esq. at Beckman Weil Shepardson: 513-621-2100.