HR Solutions: Law protects family care-givers for injured military

Under the law, coverage is extended so that employees are allowed to care for family members injured while on active military duty. 

The rationale behind the amendment to FMLA is the enormous amount of documentation proving that soldiers injured in battle are surviving in record numbers. These soldiers leave active duty and need short- and long-term care to heal. The NDAA provides a means through FMLA for family members to help with that care.

FMLA is extended to add two new types of leave.

Room for interpretation

First, the NDAA allows up to 12 weeks of unpaid FMLA leave for eligible employees to care for “any qualifying exigency arising out of the fact that a spouse, son, daughter or parent of the worker 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.” FMLA- eligible employees include the spouse, son, daughter, parent or next-of-kin of a covered service member.

This aspect of the NDAA is not effective until the Secretary of Labor provides regulations defining “any qualifying exigency.” In the interim, the Department of Labor would like for businesses to voluntarily offer this type of leave to qualifying employees.

Hands-on care

Second, under the NDAA, leave also is available in the event of a serious injury or illness, which is broader and more defined in the bill.

A serious injury or illness is one that happens to military members in the line of duty while on active duty in the armed forces, including the National Guard or Reserves, making them medically unfit to execute their duties. The injured parties may be undergoing medical treatment, therapy or recuperation, and they might be receiving care through outpatient services.

These members of the military also could be on the temporary disability retired list as the result of a serious injury or illness. Under the NDAA, eligible employees must be permitted up to 26 weeks of unpaid FMLA leave to care for the injured or ill military family member. Eligible employees are the spouse, son, daughter, parent or next-of-kin of a covered service member, with next-of-kin defined in the bill as the nearest blood relative.

The Department of Labor has developed a temporary, informational notice entitled, Notice Military Family Leave. Companies are not mandated to post the notice since it is not the last version of the soon-to-be-rewritten FMLA poster, the final version of which is expected to be available in June.

The Department of Labor is rapidly creating clearer guidance and regulations concerning rights and responsibilities under the NDAA. In the meantime, the Wage and Hour Division is requiring employers to act in good faith by allowing FMLA leave under the NDAA.

Dealing with the changes

Employers should consider executing several steps to brace for lengthy absences of team members under the new guidelines. Among them:

• Analyze and modify written FMLA policies and forms.

• Broadly define “qualifying exigency” when authorizing leave to avoid breaching the law until additional clarification is obtained from the Department of Labor.

• Educate workers and managers regarding the new requirements.

• Implement cross-training on jobs.

Human resource professionals should note that the military FMLA adjustments will be unlike the upcoming changes from the Department of Labor. Watch for the additional regulations to be disseminated this summer.

Lynne Haggerman, M.S., is president/owner of Haggerman & Associates, a firm specializing in management training, retained search, outplacement and human resource consulting. She can be reached at lynne@haggermanandassociates.com.