Labor & Employment Law

Military Caregiver Leave: Key provisions of the new DOL Regulations

This post will address the key provisions of the DOL's regulations for military caregiver leave.
General rule.

Eligible employees of covered employers are entitled to take up to 26 workweeks of job-protected FMLA leave during a single 12-month period to care for a covered service family member who suffered a serious injury or illness during active military duty.

Key Terms

Eligibility - Military caregiver leave is a form of family leave. It is leave for a family member to care for an injured covered service member. It does not grant an injured covered service member leave from work to due to their own serious injury or illness. Such leave may, however, be protected by the FMLA if it is a serious health condition.

The DOL did not otherwise change the eligibility rules for purposes of military caregiver leave. To be eligible, an employee would need to: (1) have been employed at least 12 months; (2) worked at least 1250 hours in the 12-month period preceding leave commencement; and (3) work at a work site where there are at least 50 employees within 75 miles.

Covered service member - There are 3 components to the regulatory definition: (1) current member of the Armed Forces, Guard, or Reserves; (2) who suffered a serious illness or injury in the line of duty on active duty; and (3) is undergoing medical treatment, recuperation, therapy, outpatient, or has been placed on the temporary disability retirement list by the military.

Former members of the Armed Forces, Guard, or Reserves are not "covered service members" for purposes of this entitlement to FMLA leave. An employee would not, therefore, be entitled to military caregiver leave to care for a daughter, for example, who was injured while serving in Iraq after the daughter has been discharged from the Armed Forces, Guard, or Reserves. Of course, if the injury constitutes a serious health condition, the employee may still be able to take up to 12 weeks of FMLA leave for that purpose.

Active duty means the service member was called up by the federal government (not by a governor) for a contingency operation (think Iraq, Afghanistan) or national emergency.

The injury or illness must render the covered service member incapable of performing their military duties.

Employers may require the employee to provide documentation that the covered service member has a serious illness or injury and that such condition was incurred in the line of duty while on active duty.

Covered family members -To be entitled to FMLA leave, the eligible employee must be the spouse, son, daughter, parent, or next of kin of the covered service member.

The regulations modify the definition of son or daughter by dropping any age requirement. They did this because keeping the age requirement (under 18 or over 18 and incapable of self-care) would have disenfranchised a large number of service members.

The DOL allows the covered service member to identify one nearest blood relative as their next of kin. Where this is not done, the regulations establish an order of priority for next of kin:
Blood relatives granted legal custody by a court or by statute; brothers/sisters; grandparents; aunts/uncles; and first cousins.

Except where the next of kin has been designated, all family members sharing the closest level of family relationship to the service member are considered "next of kin" and each has the right to take FMLA leave to care for the covered service member. As an example, if the brothers and sisters are the nearest blood relative, each has the equal right to take FMLA leave to care for the covered service member.

Employers may require the employee to provide reasonable documentation establishing the claimed familial relationship with the covered service member.

To Care For - The eligible employee is entitled to FMLA leave "to care for" the covered service member. The "to care for" standard for leave due to a serious health condition applies to military caregiver leave. It means to provide physical or psychological care, transportation for care, and time to make arrangements for care.

Amount of Leave - An eligible employee is entitled to take up to 26 weeks of FMLA leave in a single 12-month period to care for a covered service member.

The single 12-month period begins to run on the first day that the eligible employee takes military caregiver leave, and ends 12 months after that date.

Military caregiver leave expires at the end of the 12-month period regardless of whether the need continues. Nor is unused leave "banked" for future use after the expiration of the 12-month period. If the employee does not use it during the 12-month period, he or she loses it.

The 26 weeks is calculated on a per service member, per injury basis. That means that eligible employees may be entitled to take 26 weeks for more than one covered service family member. For example, a son in the Reserves receives a combat injury in Iraq. The eligible employee (mother) could take 26 weeks of FMLA leave to care for the son, all other conditions being met. In a subsequent 26-week period, the mother could take 26 weeks of FMLA leave to care for her spouse, who was injured while serving in the Reserves in Afghanistan.

An employee may also be entitled to military caregiver FMLA leave for the same covered family member on more than one occasion. For example, the son recovers from his initial injury and is redeployed to Iraq, where he suffers a second serious illness or injury. The new injury would be grounds for the employee to take a new 26-weeks of military caregiver leave.

Similarly, if a new injury arises from the initial injury, the employee would be entitled to a new 26-week leave period. For example, a covered service member who lost a leg in Afghanistan develops severe depression. Generally, however, complications from an initial injury will not serve as the basis for a new 26-week period of leave.

Note that in the 12-month period that an employee is taking military caregiver leave the total amount of FMLA leave available to the employee is capped at 26 weeks for all FMLA covered conditions.

When the need for military caregiver leave also qualifies as leave due to a serious health condition, the DOL regulations require employers to initially designate the leave as military caregiver leave.

Form of Leave - Military caregiver leave may be taken intermittently, on a reduced leave schedule, or in a single block of time. Leave taken on an intermittent or reduced leave schedule must be medically necessary.

Transfer to alternative position - Employers may transfer an employee who needs leave on an intermittent or reduced leave schedule to care for a covered service member that is foreseeable based on planned medical treatment for the service member. Transfer must comply with applicable collective bargaining agreements, and must have equivalent pay and benefits.

Equivalent duties are not required. Employee notice of the need for military caregiver leave - As with other forms of FMLA, an employee who needs military caregiver leave must provide their employer with timely and adequate notice of their need. Timely notice depends on whether the need for leave was foreseeable or not.

Certification - Employers may require that an employee support their request for military caregiver leave with medical documentation from identified health care providers. The regulations identify what information an employer is entitled to require in the certification. The DOL also created a form (WH-385) that conforms to the regulatory requirements.

Second and third health care provider opinions are not permitted for leave to care for a covered service member. Nor are re-certifications permitted.

Mr. Bosland Comments: However you feel about them, the regulations provide welcome guidance for employers and employees given that the military caregiver provisions of the NDAA have been in effect since January of last year.

Employers need to review their handbooks; manuals and FMLA notice policies to ensure that the military leave provisions of the FMLA are addressed. Employers should also use the new DOL-approved forms where possible to avoid requiring more information than permitted.

Full post as published by New York Public Personnel Law on January 23, 2009 (boomark / email).