Department of Labor Considers New Regulations for Military Leave Under FMLA

10.07.08

Most people are aware that the Family & Medical Leave Act (“FMLA”) allows eligible employees to take time off from work to address certain family and medical issues without the risk of losing their job.  Earlier this year, Congress amended the FMLA to expand the reasons for which an eligible employee may take leave and, in some cases, the amount of leave an eligible employee may take.  Traditionally, eligible employees were entitled up to 12 weeks of protected, unpaid leave for any of the following qualifying reasons:

 

(1) The birth and first year care of a child;

(2) The adoption or foster placement of a child in the employee’s home;

(3) The care of a spouse, child or parent with a serious health condition; or

(4) The employee’s own serious health condition that renders the employee unable to work.

 

Under the new law, eligible employees are still entitled to the same leave that they have traditionally been afforded, but they may also take up to 12 weeks of protected, unpaid leave for:

 

(5) A qualifying exigency, as defined by the Department of Labor’s regulations, arising out of the fact that the employee’s spouse, child, or parent is on active duty or has been notified that he or she has been called to active duty.

 

While the law has already been changed to include this new provision, it has no practical effect until the Department of Labor defines the term “qualifying exigency” in a formal regulation.  The Department of Labor submitted proposed regulations and sought public comment on such regulations earlier this year; however, no formal regulations have been adopted to date.

 

Defining Qualifying Exigency

Under the proposed regulations, the Department of Labor is considering the following events to be qualifying exigencies:

 

-         Making arrangements for child care;

-         Making financial and legal arrangements to address the servicemember’s absence;

-         Attending counseling related to the active duty of the servicemember;

-         Attending official ceremonies or programs where the participation of the family member is requested by the military;

-         Attending to farewell or arrival arrangements for a servicemember; and

-         Attending to affairs caused by the missing status or death of a servicemember.

 

However, these are only proposed regulations at the moment, and they are not binding upon employers unless they are formally adopted.  In the interim, the Department of Labor has encouraged employers to voluntarily extend leave for “qualifying exigencies” to eligible employees.  But until formal regulations are promulgated, employers are left to determine what constitutes a “qualifying exigency” on their own.  Employers who seek to offer this type of leave prior to the adoption of formal regulations must take care to formulate an official company policy defining what constitutes a “qualifying exigency” so that this type of leave can be granted (or denied) consistently.

 

Expanded Leave Time

In addition to the “qualifying exigency” provision, the new law also expands the amount of leave an eligible employee may take when acting as a caregiver to certain servicemembers.  In particular, the new law provides:

 

[A]n eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember shall be entitled to a total of 26 workweeks of leave during a 12-month period to care for the servicemember.

 

While not explicit in the statute, the Department of Labor’s proposed regulations make it clear that this particular provision must be read in conjunction with the other provisions of the FMLA that require a serious health condition as a prerequisite to granting leave.  The Department of Labor’s formal regulations will likely include more guidance for employers as to what constitutes “care” under this provision and what employees are eligible for this type of leave by further defining the term “next of kin.” 

 

Definitions for Application

Lastly, an issue may arise with an application of the FMLA’s current definitions to the statute’s new amendments.  While the new amendments allow for eligible employees to take leave to care for their sons or daughters who are servicemembers, the FMLA currently defines the term “son or daughter” as “a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is: (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.”  Most employees’ children who are servicemembers will not meet this definition because the large majority of persons serving in the military are at least 18 years old (although, an individual who is 17 years old may enlist with parental consent), and an individual who is incapable of self-care is not likely to pass the entry physical.  Therefore, the current definition of “son or daughter” is at odds with the purpose of the new amendments. 

 

To resolve this anomaly, the Department of Labor is proposing to define the term “son or daughter” as it pertains to servicemember care to include adult children serving in the military.  However, it is questionable whether the Department of Labor has the constitutional authority to alter the definition of “son or daughter” in such a way that conflicts with the definition adopted by Congress.  If a constitutional challenge is made and sustained, in order to effectuate the purpose of its new amendments, Congress will need to amend the FMLA once again in order to allow eligible employees protected leave to care for their adult children who are servicemembers.

 

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