Monday, July 27, 2009

You know about the FMLA, but what about the SFMLA or MFLE?

Changes to the FMLA

By now most know that the Family and Medical Leave Act of 1993 (29 U.S.C. 2654) (FMLA) requires “covered employers” to give “eligible employees” up to 12 weeks of unpaid leave per year for their own or close family member’s medical care. Yet a number of organizations I have worked with are unaware of the changes in 2008 and 2009 to the statute and regulations. [1]

Even though you may not have employees who have been called up to active duty, do not assume that the so-called "Service-member's Family and Medical Leave Act," or SFMLA, is irrelevant to your business. There were two sets of changes to the FMLA in 2008 designed to benefit the men and women who have actively served in our armed forces and their families: one added added to the FMLA provisions to make them more clearly applicable to deployment-related situations; the other actually added a new 26-week leave benefit in lieu of the FMLA. Together, they are formally known as the "Military Family Leave Entitlements."

Qualifying Exigency Leave

The FMLA has always had a short list of qualifying events that enable an "eligible employee" to use unpaid FMLA time off from a "covered employer" without losing his or her job permanently. To that list, Congress added "any qualifying exigency arising out of the active military service of the spouse, child or parent of the employee." At first glance, this seems to be a huge expansion of FMLA definitions. According to the United States Department of Labor, "qualifying exigencies" include anything the employer and employee agree is a "qualifying exigency," but also:


° Issues arising from a covered military member’s short notice deployment (i.e., deployment on seven or less days of notice) for a period of seven days from the date of notification

° Military events and related activities, such as official ceremonies, programs, or events sponsored by the military or family support or assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross that are related to the active duty or or call to active duty status of a covered military member

° Certain childcare and related activities arising from the active duty or call to active duty status of a covered military member, such as arranging for alternative childcare, providing childcare on a non-routine, urgent, immediate need basis, enrolling or transferring a child in a new school or day care facility, and attending certain meetings at a school or a day care facility if they are necessary due to circumstances arising from the active duty or call to active duty of the covered military member

° Making or updating financial and legal arrangements to address a covered military member’s absence

° Attending counseling provided by someone other than a health care provider for oneself, the covered military member, or the child of the covered military member, the need for which arises from the active duty or call to active duty status of the covered military member

° Taking up to five days of leave to spend time with a covered military member who is on short-term temporary, rest and recuperation leave during deployment

° Attending to certain post-deployment activities, including attending arrival ceremonies, reintegration briefings and events, and other official ceremonies or programs sponsored by the military for a period of 90 days following the termination of the covered military member’s active duty status, and addressing issues arising from the death of a covered military member
(emphasis in DOL original)

These extra benefits do not apply to members of the regular armed forces. They were expressly enacted by Congress to help the members of National Guard and Reserves who are called to active duty from their regular lives and should be seen and applied in that light. Qualifying Exigency Leave is merely a new basis for use of the 12-weeks of FMLA within a rolling 12-month period.

Military Caregiver Leave

The new leave benefit is a 26-week unpaid leave option for "eligible employees" working for "covered employers" who need the time either for themselves or their spouse, child, parent or next of kin. The 26-weeks must fit within a rolling 12-month window, just like the 12-week FMLA leave benefit. Eligible employees cannot add the two together: the FMLA's 12 weeks and the Military Caregive Leave can total no more than 26 weeks and only care for a covered servicemember can extend beyond the 12 weeks provided by FMLA.

Unlike Qualifying Exigency Leave, however, Military Caregiver Leave applies to both "regular" Armed Forces servicemembers and "reserves" called up from National Guard or Reserves. The serious injury or illness here must be incurred in the line of duty AND make the covered servicemember unable to perform the duties of his or her office, grade, rank or rating.

The Department of Labor maintains a good set of FMLA informational materials on its website as part of the Compliance Assistance section. Those interested in learning more can find a pdf Fact Sheet on the Military Family Leave Entitlements here.
NOTES:
[1] I will address the technical definitions of "covered employer" and "eligible employee" under the FMLA generally in a later post.

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