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New rules spell out when families can take leave

It’s been nearly a year since Congress amended the Family and Medical Leave Act to provide greatly expanded rights to the families of service members, including the National Guard and reserve. While well intentioned, the language in the law may create issues that could lead to friction between employers and employees.

The Labor Department has now stepped into the breach by enacting a comprehensive set of regulations aimed in part at taking some of the guesswork out of how FMLA applies to military families. Although these regulations generally apply only to private employers, the Office of Personnel Management can be expected to enact similar rules for federal civil service employees.

One portion of FMLA that did not change is the requirement for eligibility. It applies only to employers who have 50 or more employees. And it applies only to employees who have worked for such employers for at least 12 months and logged at least 1,250 hours in that time.

The revised FMLA creates two categories of leave applicable only to military families. The first, military caregiver leave, allows time off for a spouse, child, parent or next of kin to care for an active-duty service member who incurred a serious injury or illness in the line of duty that may render the member medically unfit.

In this circumstance, the employee is entitled to up to 26 weeks of leave during the 12-month period that begins on the first day of FMLA leave.

If an employee cares for more than one injured family service member or if the member suffers a subsequent serious injury or illness, a separate 26-week period of FMLA leave applies.

However, no more than 26 weeks may be taken in any 12-month period.

Taking military caregiver leave does not eliminate availability of FMLA leave for other purposes, such as the birth of a child. If a family member takes FMLA leave to care for a service member, he may still take time off for the birth of a child, as long as that time does not exceed the 12-week limit on that type of leave and the total leave does not exceed 26 weeks in a 12-month period.

The second new category of FMLA is called “leave because of a qualifying exigency.” It applies when the employee’s spouse, child or parent is on active duty or called to active duty in support of a contingency operation.

The definition of “contingency operation” seems broad enough to include military operations in Iraq and Afghanistan. Leave for this reason, distinct from military caregiver leave, is limited to 12 weeks in any 12-month period.

The regulations contain a detailed list of events that would trigger the right to take this leave. The family member may, for example, take up to seven days leading up to a short-notice deployment, meaning notice is given seven or fewer days prior to the date of deployment.

The family member may attend official ceremonies and programs, family support or assistance programs and informational briefings related to active duty.

Employees also can take up to five days to spend with a family service member who is on temporary rest and recuperation during deployment. Post-deployment events — arrival ceremonies, for example — are included, provided they occur within 90 days following the termination of active duty. The employee also is allowed to leave to address issues that arise from the death of a family service member while on active duty.

These are just the basics. There are extensive regulations about potentially contentious areas, and it’s expected that these and other issues addressed by the new rules will lead to disputes.

If an employer violates the FMLA, an employee can file a complaint with the labor secretary or file a private lawsuit. Remedies include restitution of lost wages and actual monetary losses, such as the cost of providing care, double damages if the employer did not have reasonable grounds for believing it had not violated FMLA, and attorney’s fees. The new rules take effect Jan. 16.

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The information in this column is provided for informational purposes only and is not intended to constitute legal advice. Readers are encouraged to seek the advice of an attorney or other professional when an opinion is needed.

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Mathew B. Tully is a field artillery officer in the New York National Guard and a veteran of Operation Iraqi Freedom. He is also the founding partner of Tully, Rinckey and Associates (www.fedattorney.com/), a law firm in Albany, N.Y. E-mail legal questions to askthelawyer@militarytimes.com.