Taking leave to help your service member - Military Law, Military Law Advice, Ask a Lawyer - Navy Times

Taking leave to help your service member

When President Bush signed the 2008 Defense Authorization Act on Jan. 28, one of the provisions enacted into law is a significant benefit for military families, the Servicemember Family Leave Act.

This provision creates a new category of leave in the Family Medical Leave Act specifically to allow family members to take time from their jobs to care for a service member injured in the line of duty.

Employees who qualify are given up to 26 weeks of unpaid leave over a 12-month period, more than double the normal amount of leave (12 weeks) allowed under the Family Medical Leave Act.

Another major change to the FMLA is the addition of a new “event” that entitles an eligible employee to the usual 12 weeks of unpaid leave. This provision allows family members time to deal with any “qualifying exigency” arising out of the fact that a qualified relative is on active duty or has been notified of an impending call or order to active duty in support of certain types of military operations.

How it works

The spouse, son, daughter, parent, or next of kin of a covered service member can take up to 26 work weeks of Servicemember Family Leave (SFL) from their jobs during a single 12-month period to care for the injured service member.

When an employee requests SFL, they still must meet the existing requirements for FMLA eligibility. Unlike other types of leave granted under the FLMA, this new category of leave is available to “next of kin,” meaning the nearest blood relative of a service member, even if he or she is not a spouse, child, or parent of the service member.

Covered service members are those serving in the armed forces, including the National Guard and reserve, who are undergoing medical treatment, recuperation, or therapy; are in outpatient status; or are on the temporary disability retired list, for a serious medical condition.

That’s defined as an injury or illness incurred in the line of duty, on active duty, that may render the member medically unfit to perform the duties of his or her office, grade, rank, or rating.

Most conditions that apply to other types of leave under the Family Medical Leave Act also apply to SFL. When the leave is needed because of a serious health condition, the 26 weeks of SFL may be taken intermittently or on a reduced leave schedule.

It’s important to keep in mind that an employee is limited to a combined total of 26 weeks of leave during a single 12-month period. If an employee has some other qualifying event in that 12-month period, such as the birth of a child, the total amount of leave during that 12-month period is still limited to 26 weeks.

SFL is not renewable. If the service member’s recovery is longer than 12 months, the leave granted to the employee is still limited to 26 weeks total for that injury.

The leave may be unpaid. However, an eligible employee may choose to substitute any accrued paid vacation, personal, family, medical or sick leave for any part of the 26 weeks, if company policy allows.

An employer may also require the employee to take accrued paid leave if company policy dictates. An employer also can require the employee to obtain and provide certification of the service member’s medical condition from the member’s health care provider.

How Deployment Leave Works

This leave is only available to spouses, children or parents of active-duty service members. Unlike SFL, it is not available to a service member’s “next of kin.”

As with SFL, an employee who requests Family and Medical Leave to address a qualifying exigency still must meet the existing requirements for FMLA eligibility, including length of service.

The “qualifying exigencies” under this provision are not defined in the law, so Congress has instructed the Secretary of Labor to issue regulations to explain what constitutes a “qualifying exigency” that triggers entitlement to this leave.

This new “qualifying exigency” provision will not be binding on employers until the Secretary of Labor issues these final regulations.

The Labor Department has said that it is rapidly working to draw up the regulations. For the moment, Labor officials simply encourage employers to grant this type of leave when appropriate.

Once the guidance and regulations are issued, employers will need to update their FMLA policies accordingly.

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Mathew B. Tully, Esq. 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 your legal questions to askthelawyer@militarytiumes.com. View more “Ask the Lawyer” columns online at http://www.militarytimes.com/community/ask_lawyer/

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