As Memorial Day weekend arrives, I wanted to take a minute to remember those who have sacrificed themselves so that we may have many of the freedoms we take for granted today, such as the ability to write whatever we want on the internet. In addition, I want to thank all the military spouses and families out there who have more strength than many of us know or can even appreciate. So, we remember, and thank you.
This leads me to blog today about time off for military service, and time off to care for servicemembers in Minnesota. Specifically, the FMLA was amended in 2008 to add two military family leave entitlements – (1) qualifying exigency leave; and (2) military caregiver leave. I’ll touch briefly on both below. As for my Friday Fun Fact…here it is, compliments of the History Channel: Memorial Day was originally known as Decoration Day in 1868 (to decorate the graves of fallen soldiers), and didn’t become an official federal holiday until 1971.
Who Is A “Covered Servicemember”?
A “covered servicemember” is someone who is: (1) a current member of the Armed Forces (including National Guard or Reserves); or (2) a veteran who was discharged or released under conditions other than dishonorable at any time during the 5 year period prior to the first date the eligible employee takes FMLA leave to care for the veteran.
Who Is Eligible For Leave?
To be eligible for one of these FMLA military leaves, the employee must have worked for a covered employer (private company with 50 or more employees) for 12 months and at least 1,250 hours in the 12 month period prior to the leave. Further, that employee must work at a location where the covered employer has at least 50 or more employees within 75 miles of the employee’s worksite.
FMLA “Qualifying Exigency” Leave
The FMLA provides that when a spouse, parent, son or daughter who is a military member is deployed (or notified of impending deployment to a foreign country), an eligible employee may be entitled to an unpaid “qualifying exigency leave”. This leave provides up to 12 workweeks FMLA leave for things such as changing day care arrangements for the deployed member’s children, or attending official military ceremonies related to deployment. Keep in mind that this leave must be related to “covered active duty” which means (for members of Armed Forces), deployment to a foreign country and (for members of the reserves), deployment with the Armed Forces to a foreign country under a call or order to active duty.
Reasons for such leave may include: issues arising from a short-notice deployment (7 days or less); need to make financial or legal arrangements; counseling; attendance at military events and related activities; issues related to childcare arrangements; to attend post-deployment activities for 90 days thereafter; and to spend up to 15 calendar days with a military member who is on Rest and Recuperation leave during covered active duty. Naturally, there is “catch-all” type of language such as, basically, anything else the employer and employee agree is a “qualifying exigency”.
The employer may request certification of the need for such leave such as a copy of the military orders, a statement of the facts regarding the need for the leave; the approximate date leave will begin; and the contact information for the third-party being met with. For more on this, the DOL has a Fact Sheet #28M(c), that can be found here.
FMLA Military Caregiver Leave
The FMLA also provides unpaid military caregiver leave up to 26 workweeks of unpaid leave to take care of a covered servicemember (spouse, parent, son, daughter, or next-of-kin) if she or he is undergoing medical treatment, recuperation or therapy for a serious illness or injury incurred in the line of duty. Such illness or injury must be incurred in the line of duty on active duty that may render them medically unfit to perform their duties. This also includes prior injuries or illnesses aggravated by service while on active duty. For more on this, the DOL has a Fact Sheet #28M(a), that can be found here with respect to current servicemembers.
A covered servicemember also includes an honorably discharged veteran within 5 years of the need for FMLA military caregiver leave. Note, since this regulation took effect March 8, 2013, veterans discharged prior to that date will not count that time as part of the 5 year period. For more on this, the DOL has a Fact Sheet #28M(b), that can be found here with respect to veteran servicemembers.
Again, as with qualifying exigency leave, an employer may require certification such as contact information for the health care provider and affiliation with the military; whether the injury or illness was incurred or aggravated while on active duty, the date of injury and estimated duration; facts regarding the health condition; information regarding need for care and dates of treatment or recovery; schedule of appointments or treatments and frequency and duration; name of covered servicemember and relationship; information regarding the servicemember’s branch, rank, and unit assignment or veterans date and type of separation. In other words, employers certainly have the right to ask for information to ensure that the request falls squarely within the intention of the FMLA’s protections.
Without getting into too many details, also keep in mind that an employee is only entitled to 26 weeks total during the 12 month period. Thus, up to 12 weeks could be used for personal FMLA and up to 16 could still be used to care for a covered servicemember. In addition, this leave is available once per servicemember per serious illness or injury.
What Can Employers Require?
In Minnesota, employers may require that FMLA time off runs concurrent with other leave. In other words, an employee who takes FMLA as detailed above, may be required to exhaust all paid leave (while counting against FMLA), before the leave becomes unpaid. This prevents an employee from, say, taking 26 weeks FMLA and another 6 weeks vacation or PTO. Further, keep in mind that an employer needs to continue health insurance during this time (though the employee must also continue to make the normal employee contributions).
In addition, employers are entitled to appropriate notice. With some exceptions, there is almost always going to be time for the employee to use the required call-in procedure – especially since everyone seems to have a phone in their back pocket these days. As detailed above, the employer may require certain certifications supporting the need for leave. Finally, an employer does not need to return an employee to the same or similar position if the employee is unable to return to work after the exhaustion of FMLA leave. As with any employment law, employers should be careful to ensure no retaliation is taken for the employee requesting or taking FMLA leave.
A final word – keep in mind that this is not the same as time of for military leave. Many states, such as Minnesota, have their own laws with respect to time off for actual military service. For example, in Minnesota, Minn. Stat. 192.34 provides that it is a gross misdemeanor to discharge an employee, hinder military service, or dissuade an employee from enlisting by threatening an employee’s job. In addition, public Minnesota employees have the right to some paid military leave under Minn. Stat. 192.26-.264.