Summary of the NDAA
In January 2008, President Bush signed into law the National Defense Authorization Act (“NDAA”), which expanded the FMLA to allow eligible employees to take two new categories of FMLA leave: (1) military caregiver leave; and (2) qualifying exigency.
Military Caregiver Leave
Under the NDAA, an eligible employee is entitled to a total of 26 workweeks of leave during a single 12 month period to care for a servicemember who 1) is on the temporary disability retired list; 2) has a serious injury or illness for which h/she is undergoing medical treatment, recuperation or therapy; or 3) is otherwise on outpatient status. A “serious injury” is one which was incurred in the line of duty while on active duty that may render the servicemember medically unfit to perform the duties of his/her office, grade, rank or rating
If time qualifies as military caregiver leave and regular FMLA leave, the employer must designate the leave as military caregiver leave first. The leave is to be applied on a per-covered-servicemember, per-injury basis such that an eligible employee may in fact be entitled to take more than one period of 26 workweeks of leave if the leave is to care for different covered servicemembers or to care for the same servicemember with subsequent injuries or illnesses, except that no more than 26 workweeks of leave may be taken in any single 12 month period.
Eligibility
Eligible employees are entitled to FMLA leave to care for a current member of the Armed Forces, including the National Guard and Reserves, or a member of one of these who is on the temporary disability list. To care for a covered servicemember, an eligible employee must be the spouse, son, daughter or parent or next of kin of a covered servicemember. “Next of kin” means the nearest blood relative other than the spouse, parent, son or daughter.
Notice requirements
An employee must provide the employer at least 30 days advance notice before military caregiver leave is to begin if the need for the leave is foreseeable. If this is not practicable, notice must be given as soon as possible – i.e., complying with the employer's normal notice or call-in procedures, absent unusual circumstances.
Certification
An employer can require that an employee’s leave to care for a covered servicemember with a serious injury or illness be supported by a certification completed by an authorized health care provider of the covered servicemember. In most cases, the employer should request that an employee furnish certification at the time the employee gives notice of the need for leave or within five business days thereafter. The employee must provide the requested certification to the employer within 15 calendar days after the employer’s request, unless it is not practicable under the specific circumstances to do so.
Qualified Exigency Leave
An eligible employee is entitled to a total of 12 workweeks of leave to use within a 12-month period for any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter or parent is on active duty or was called to active duty status in support of a contingency operation. Such leave may be taken intermittently. Note that this is not an additional 12 weeks of leave; rather it is an additional basis on which an eligible employee may take their existing 12 weeks of FMLA leave.
Eligibility
Employees are only eligible for this leave if they have a spouse, son, daughter or parent who is on active duty or was called to active duty status in support of a contingency operation – no “next of kin” provision applies. Also, “active duty” is limited to members of the Reserve components, the National Guard and certain retired members of the Regular Armed Forces and retired Reserve.
This leave is only available where the Secretary of Defense designates the call to active duty as an operation in which members of the armed forces are or may become involved in military actions, operations or hostilities against an enemy of the United States or an opposing military force.
Qualifying Exigencies
The Department of Labor has identified eight categories of qualifying exigency leave. In each case, the need for the leave must arise out of the fact that the employee’s spouse, son, daughter or parent is a covered military member.
1) Short notice deployment: Deployment on seven days or less of notice for a period of seven days from the date of notification.
2) Military events and related activities: Official ceremonies, programs or events.
3) Childcare and school activities: Leave to attend non-routine, urgent school functions of the son or daughter of a covered military family member.
4) Financial and legal arrangements: Leave to address the covered military family member’s absence while on active duty, such as preparing a will.
5) Counseling: Leave for an employee to attend counseling provided by someone other than a health care provider, as long as counseling arises from active duty service or call to active duty.
6) Rest and recuperation: An employee may take up to five days leave to spend time with a covered military family member on rest and recuperation leave.
7) Post-deployment activities: For a period of 90 days following the covered military family member’s termination of active duty status, the employee may take leave to attend ceremonies related to the return of the covered military family member.
8) Additional activities not addressed in other categories if agreed upon by employee and employer
Notice
Same as Military Caregiver Leave
Certification
An employer can require an employee seeking to take leave to provide a copy of the covered military member’s active duty orders or other documentation, including the dates of the covered military member’s active duty service. The Department of Labor has created an optional certification form (WH 384) for employers to use. Employers are permitted to call a third party to verify a meeting and also may contact the appropriate unit of the Department of Defense to confirm. They are not permitted to require second or third opinions or recertification.