New Law Expands FMLA for Military Families

A Defense spending bill signed into law by President Obama on Oct. 28, 2009, includes a section that expands provisions of the Family & Medical Leave (FMLA) for military families. By increasing the scope of “exigency leave” and “caregiver leave,” which were added in 2008, the bill offers important benefits to America’s veterans and their loved ones. The leave amendments to the National Defense Authorization Act of 2010 (NDAA) became effective with the president’s signature.

Military-Service Member Caregiver Leave

Amendments to the FMLA that were adopted in 2008 stipulated that employees who are the spouse, son, daughter, parent, or next-of-kin of a military-service member would be permitted to take up to 26 weeks of leave to care for the covered service member in the event of a serious injury or illness. To qualify as the recipient of such care, the service member had to be a current member of the Armed Forces (including the National Guard or Reserves) who was undergoing medical treatment, recuperation, or therapy; was in outpatient status, or was on temporary disability retirement. Eligible employees could not take leave to care for former members of the Armed Forces, former members of the National Guard and Reserves, or members on permanent disability retirement.

The NDAA expanded the military caregiver provisions to include leave to care for certain veterans who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness. The veteran must have been a member of the Armed Forces (including that National Guard or Reserves) within five years from the date the veteran undergoes such treatment.

In addition to expanding military-caregiver leave to include certain veterans, the NDAA also expands the definition of “serious injury or illness” as it applies to military caregiver leave. Previously, the law said that the illness or injury had to be incurred in the line of duty while the service member was on active duty. The law has now been expanded to include injuries or illnesses that existed before the military-service member began active duty when such injuries are aggravated in the line of duty.

Exigency Leave Extended

The revised regulations for military-service caregivers also include “exigency leave,” which entitles eligible employees to take up to 12 weeks of leave to attend to certain matters that may arise in relation to a spouse, son, daughter, or parent’s call to active duty. Qualifying “exigencies” include:

To address any issue that arises from short-notice deployment;
To attend military events and related activities;
To provide child care;
To make financial and legal arrangements;
To attend counseling;
To spend time with a covered military member who is on temporary rest-and-recuperation leave;
To attend post-deployment activities; and
To address other events – as agreed upon by the employer and employee – which arise out of the service member’s call to active-duty.

Previously, “qualifying exigency leave” was available only to employees whose family members were in the Reserves or National Guard. When drafting the 2008 amendments, Congress purposely excluded other armed forces personnel because they do not typically face the sudden interruptions experienced in the Guard and Reserve. The NDAA for fiscal year 2010, however, expands exigency leave so that it also applies to all members of the military.

This means that postal employees may take leave for any of the situations listed above when a family member is called to active duty in any branch of the military.

Certification of Military Family Leave

The Postal Service may require certification of the employee’s need for military family and medical leave. While certain information is required for the certification to be complete, the USPS may not request anything beyond what is required under the law.

The APWU has created two FMLA forms that may be used for this purpose. APWU Form 3 is for certification of a qualifying exigency; Form 4 is for military caregiver leave. These forms are similar to the Optional Forms WH- 384 and WH-385 created by the Department of Labor. Please note that as long as the necessary information is provided, the FMLA does not require the use of a specific form: We recommend our revised forms, which can be found in the Industrial Relations Department pages at www.apwu.org .

The procedures for employer authentication or verification of an employee’s certification of military family and medical leave differ from those followed for regular family and medical leave.

With regard to qualifying exigency leave, the first time an employee makes such a request the employer may require a copy of the covered service member’s active-duty orders or other similar military documentation. But such information need be provided to the employer only once.

If the requested qualifying exigency leave involves meeting with a third party, the employer may contact the individual or entity with whom the employee is meeting for purposes of verifying the schedule and nature of the meeting. The employer is not required to obtain the employee’s permission to do so, but the employer may not ask for any additional information.

The employer also has the option to contact the Department of Defense to verify that the covered military member is on active duty. Again, the employer does not need the employee’s permission to do so, and no additional information about the covered military member may be requested.

With regard to military caregivers, the information on the certification must relate only to the serious injury or illness for which the current need for leave exists. It should also be noted that employees requesting military caregiver leave may submit as certification the “invitational travel orders” (ITOs) or “invitational travel authorizations” (ITAs), which are issued to family members seeking to join an injured or ill service member at his or her bedside.

Similar to the process for regular family and medical leave, if it is determined that the medical certification is incomplete or insufficient, the Postal Service must first give the employee an opportunity to fix any deficiencies. After this has been done, the Postal Service has the right to contact the healthcare provider for the purposes of clarification and authentication of the medical certification.

Unlike regular FMLA leave, however, management may not require second and third opinions for purposes of military caregiver leave. Management is also prohibited from requiring that employees provide recertification of their need for military caregiver leave. The new provisions represent an important improvement in the lives of veterans and their families.

[ Back to Top ]