New Federal And State Laws Affect Employers’ Leave Obligations For Military Personnel And Their Families
FMLA Amendments Grant Additional Leave to Relatives of Military Personnel

On January 28, 2008, President Bush signed into law the National Defense Authorization Act for FY 2008 (NDAA), which amends the Family and Medical Leave Act of 1993 (FMLA) to provide a new entitlement to leave in two situations related to military service. The NDAA is unclear regarding the scope of certain obligations, but the Department of Labor is in the process of developing regulations that should fill in some of the current gaps. In the meantime, the new law makes clear that FMLA-eligible employees will now be entitled to the following:

Caregiver Leave for an Injured Servicemember: This benefit permits a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks of leave to care for a “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.” The following are some key aspects and questions about this part of the new law.

What does “next of kin” mean? The statute defines it as the nearest blood relative of that individual. After the persons already included in the statute, the Department of Defense, with whom DOL is consulting in the rule-making process, considers “next of kin” to be remarried surviving spouses (except those who obtained a divorce before the qualifying event), blood or adoptive relatives who have been granted legal custody of the servicemember, brothers and sisters, grandparents, other relatives of legal age in order of relationship according to civil laws, and persons standing in loco parentis.
What is a “serious injury or illness”? Under the law, it means an injury or illness incurred by the member in the line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating. The statute does not define “in the line of duty,” but that term is not likely limited to injuries sustained in combat. Hopefully, the DOL regulations will provide guidance for employers regarding how to establish that this definition is satisfied.
How often? The statute says that the leave is available only “during a single 12-month period.” From the questions posed by DOL in its notice of proposed rule-making, it is clear that DOL considers this language to be subject to different possible interpretations (e.g., are employees entitled to this leave only one time, or can they have multiple entitlements to 26 weeks of leave in different leave years?; is the entitlement once per covered servicemember, or perhaps once per injury of a covered service member?). The forthcoming DOL regulations should clarify the scope of the leave entitlement.
Leave can be intermittent.
The 26-week cap includes leave taken by the employee for other FMLA-qualifying reasons. For example, if the employee took 6 weeks off for her own serious health condition, she would only have available 20 weeks to care for the injured servicemember.

Family Leave Due to a Call to Active Duty: This benefit provides 12 weeks of FMLA leave for “any qualifying exigency (as the Secretary [of Labor] shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.” The DOL’s discussion in its notice of proposed rule-making asks whether the following type of exigencies should qualify:

Making arrangements for childcare;
Making financial and legal arrangements to address the servicemember’s absence;
Attending counseling related to the active duty of a servicemember;
Attending official ceremonies or programs where the participation of the family member is requested by the military;
Attending farewell or arrival arrangements for a servicemember; and
Attending to affairs caused by the missing status or death of a servicemember.

Other questions include whether qualifying exigencies should be limited to those of an urgent or one-time nature arising from deployment, as opposed to routine, everyday life occurrences; and whether the leave should be limited to non-medical related exigencies.

Effective Dates: The provisions of the NDAA providing for leave to care for an injured servicemember are effective as of the date of the President’s signing, or as of January 28, 2008. The provision regarding leave for “any qualifying exigency” is not effective until the Secretary of Labor issues final regulations defining “any qualifying exigency.” DOL has encouraged employers to provide this type of leave to qualifying employees in the interim.

What This Means for Washington Employers:

Apply your existing FMLA procedures: Because the NDAA amends the FMLA, FMLA-type procedures should be used for any requests for the new qualifying reasons (e.g., notice requirements, policies regarding substitution of paid leave). Obviously, different certifications may be appropriate for these different types of leave, and the DOL regulations should fill in the gaps.

Update policies: You should immediately inform employees of the new leave entitlements. DOL provides the following notice: http://www.dol.gov/esa/whd/fmla/NDAAAmndmnts.pdf. As explained above, there are still many ambiguities in the law that will hopefully be addressed soon in DOL regulations. At that time, you will want to make sure that your policies are revised to reflect accurately the new entitlements and requirements.

Other FMLA Developments: On a separate track from the military-related FMLA developments, the DOL has issued proposed new regulations regarding the FMLA. Those proposed regulations are still under review, and are not addressed in this bulletin. If you would like more information regarding the DOL’s proposed regulations, you can go to the FMLA Notice of Proposed Rulemaking website (http://www.dol.gov/esa/whd/FMLANPRM.htm).

Washington Enacts the State “Family Military Leave Act”

Washington’s Family Military Leave Act (SB 6447) will become effective on June 12, 2008. This new law has two parts. The first creates leave rights for spouses of military personnel in connection with a military deployment; the second increases the number of days of paid leave to which public employees are entitled annually for military leave.

Leave for Spouses of Military Personnel: In enacting this new law, the Legislature explained that its purpose is to support the families of military personnel serving in military conflicts by permitting them to spend time together before a family member is deployed or while the family member is on leave from a deployment. Specifically, the law provides that during a period of military conflict, an employee who is the spouse of a member of the Armed Forces, National Guard or Reserves who has been called to active duty or who has been deployed is entitled to 15 days of unpaid leave per deployment. Key requirements and issues are as follows:

What employers are covered? The definition of employer under this leave law is very broad, and includes public and private employers engaging in any kind of business or activity in Washington State, regardless of the size of the employer.
Which employees are eligible? Unlike the family and medical leave laws, this new law does not require that employees be employed for some minimum number of hours to be eligible for family military leave. Any employee who works an average of 20 hours per week is eligible for this leave. Independent contractors are not covered by this law.
What is a “military conflict”? A period of military conflict is a period of war declared by the President or Congress, or a period in which members of the Reserves are ordered to active duty.
What is required of the employee? An employee who seeks to take family military leave must provide the employer with notice of his/her intent to take leave within five business days of receiving official notice of an impending call or order to active duty or notice of a leave from deployment.
Family military leave under this law is unpaid, but benefits must be continued during the leave. The law provides that employees “may elect” to use any accrued leave as part of this family military leave. Based on this wording, the use of paid leave is at the employee’s option, and employers should not require an employee taking family military leave to use up his/her accrued leave if the employee objects to doing so.
How does this family military leave correlate with other kinds of leave entitlements? As noted, the fact that the statute permits an employee to “elect” to use accrued leave indicates that the employee may choose not to use paid leave during this family military leave. As a result, it would be possible for an employee to stack this leave on top of accrued vacation or other paid time off to extend the leave period. Additionally, although not specifically addressed in the new law, it appears that the state family military leave entitlement is in addition to the leave available under the FMLA amendments described above (in the event both are applicable). The state family military leave act does not provide that it runs concurrently with any FMLA or other leave, and a legislative analysis by the State Legislature’s Commerce & Labor Committee states that family military leave is “in addition to” other leave to which an employee may be entitled.

Public Employees Get Increase In Paid Time Off For Military Leave: Public employers should already be familiar with their obligation to provide up to 15 days of paid leave to employees who are called to active duty or for military training in connection with the employee’s participation in the National Guard, Armed Forces or Reserve. This is an annual leave entitlement during each year beginning October 1st and ending September 30th. The new state Family Military Leave Act amends RCW 38.40.060, which governs this paid leave entitlement, by increasing the number of paid days off for military leave from 15 days per year to 21 days per year. All other aspects of this paid leave entitlement remain the same.

Effective Dates: Washington’s Family Military Leave Act becomes effective on June 12, 2008.

What This Means for Washington Employers: While the new state law is not yet effective, employers should become familiar with its requirements in the coming months to ensure compliance beginning June 12. Employers may want to revise their leave policies to incorporate the new state requirements, although we would suggest waiting until the federal DOL puts out its regulations on family military leave so that a comprehensive military leave policy reflecting both state and federal entitlements can be developed. Even if policy revisions are deferred pending the federal regulations, employers should notify their employees of these new leave entitlements – including the strict five-day notice requirement for employees who want to take family military leave. As the effective date approaches or soon thereafter, we anticipate that the Washington Department of Labor & Industries will promulgate guidance and notices to ensure employees and employers are aware of and in compliance with the new legal requirements.