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Government LawyersThe newsletter of the ISBA’s Standing Committee on Government Lawyers

December 2012, vol. 14, no. 2

Military-related FMLA provisions

When we assumed the Soldier, we did not lay aside the Citizen….

- George Washington as Commander-in-Chief of the Continental Army, June 26, 1775.

Governmental attorneys, at times, are consulted on personnel matters concerning public employees who also serve in the military reserve or National Guard. Of particular import for this sector of the workforce, is the federal Family and Medical Leave Act of 1993 (FMLA) found at 29 U.S.C. § 2601 et seq., as well as the corresponding regulations located under the same designation at 29 CFR Part 825. Given their numerous mobilizations over the last decade or so, more citizen-soldiers have come to invoke the provisions of the law especially as some of the relatively recent amendments enacted in 2008 (Public Law 110-181) and 2009 (Public Law 111-84) address leave for military-related situations. In rough, ever-changing numbers, approximately 700,000 or so “civilians” also serve in the National or Air Guard or in the Reserves of the U.S. Army, Navy, Marine Corps, Air Force or Coast Guard.

As a very brief backdrop, certain employees can, under the FMLA, take unpaid leave for specified family and medical reasons with no effect on their job status or group health insurance coverage. FMLA applies to all public agencies, including state, local and federal employers (as well as private employers generally with 50 or more employees during at least 20 workweeks). Further, for an employee to be eligible to use benefits under FMLA, the worker generally must have worked at least 1,250 hours over the previous 12 months for that employer at a particular job site where at least 50 other co-employees are within 75 miles.1

Within these family/medical leave provisions are benefits framed specifically for members of the armed forces in order for family members: (i) to care for a seriously injured or ill service-member; and (ii) to assist with the civil affairs of a mobilizing, deployed or returning service-member. While the policy intent of the first rationale is readily apparent to enable an immediate relative to care for the returning veteran who is injured or ill, the second rationale’s underpinnings in civil relief may not be as easily intuitive.

Under the first mentioned instance of authorized leave, an employee who is a spouse, son, daughter, parent, or next of kin of a seriously injured/ill service-member qualifies for up to 26 workweeks of unpaid leave during a 12-month period to care for a returning member of the armed forces. The seriously injured/ill service-member must currently be a veteran or in a branch of the military, including as a guardsperson or reservist, who is undergoing some type of medical treatment or is otherwise on a disability-retired status. For these situations, a “serious injury or illness” is considered to be one that was received in the line of duty while in active military service, which injury/illness could make the service-member medically unfit to perform certain duties. In addition, the definition applies to the aggravation of a serious injury/illness that pre-existed the member’s active duty.

Under the second identified leave option, an employer must grant an eligible employee up to 12 (intermittently) of the authorized 26 weeks of unpaid leave during a 12-month period to assist in taking care of exigencies brought on by the fact that the employee’s spouse, son, daughter, or parent is returning, already deployed or about to be mobilized in support of a military campaign as a reservist or guardsperson. Qualifying exigencies include: (i) issues arising from being mobilized on seven or less days of notice; (ii) pre-deployment and post-deployment military activities related to the mobilization; (iii) certain childcare responsibilities arising from the mobilization; (iv) executing financial, business and legal matters due to a service-member’s absence; (v) attending counseling necessitated by the mobilization; (vi) spending time with a military member who is on short-term leave during deployment; and (vii) any other event that the parties mutually agree is a qualifying exigency. As these qualifying events may be short in duration or short on notice, the law allows for an intermittent approach in leave days in lieu of taking the entire entitlement all at once. The assistance by family members with any of these items allows mobilized reservists or guard-members to focus more attention on their military preparations and operations and also to ensure that their military colleagues do the same.

By enabling an immediate relative to use his or her benefit time to help the military member make advanced arrangements for taking care of civilian obligations while deployed, the service-members may then focus on the ramped-up demands of their military command. For example, military members during their extended absence have to address, among a multitude of other items, the recurring payment of non-electronic bills, the care of children or other dependents, the storage of large or expensive personal-property items, home/rental security and the winding-up or transfer of business affairs.

Federal and state statutes do indeed provide protection to members of the military against later unlawful takings, foreclosures, liens, repossessions, garnishments and property-auctions. The military member and his or her family, however, are much better served in avoiding these future time-consuming remedies by granting their relatives this type leave beforehand to help set up contingencies in advance of any misappropriation. As a caveat to this benefit-leave, spouses employed by the same employer are limited to a “combined” total of 26 workweeks in a 12-month period, if the leave is to care for a service-member with a serious injury/illness, for the birth and care of a newborn child, for placement of a child for adoption or foster care, or to care for a parent who has a serious health condition.

Additionally, employees seeking to use military caregiver leave must provide 30 days advance notice, if possible. If the 30-day notice is not possible, then the employee must provide notice as soon as may be practicable under the circumstances of the particular case, which is normally the same or next business day, especially in the case of leave for a qualifying exigency. For example, if a United States Army Reservist only receives seven days notice that his or her unit will be mobilized, then the citizen-soldier’s family member should try to notify the employer that day or the next if leave is to be requested. An employee does not need, however, to specifically assert the term “FMLA” when providing the initial notice; the employee need only provide “sufficient information” to make the employer aware of the need for FMLA leave and the anticipated start and end of the leave (more details may be required if a repetitive exigency). In this light, depending on the situation, the proffered information may include that: (i) the leave is for a family member who is an eligible service-member with a serious injury/illness or with a particular qualifying-exigency; and (ii) the anticipated length of the necessitated leave is for the stated amount of time. Employers then may of course require that an employee’s request for military family leave be supported by appropriate documentation verifying the need for the time spent on behalf of the military relative. The federal law also allows for public employees to substitute accrued, paid benefit-leave concurrently with FMLA leave, if their particular employer authorizes this option. State law governing the respective public or private employer may also address the use of paid leave as a concurrent option.

Illinois has codified its version of the Family Military Leave Act (820 ILCS 151/1 et seq.), which generally mirrors most of the federal provisions. For example, the state law includes relatively similar definitions of the basic terms of “employee” and “employer.” Illinois law places, however, a lesser mandate on smaller employers with a workforce of 15 to 50 people. In so doing, Illinois requires an employer with between 15 and 50 employees to grant up to 15 days of unpaid family leave time to an employee during qualifying time of the family member’s deployment. Employers with 51 or more workers must provide up to 30 days of the unpaid family leave. Illinois law does provide that an employee may not take leave under its provisions, unless the employee has exhausted all other accrued benefit time, except for sick or disability leave. Further, the number of days of leave provided to an employee is reduced by the number of days of leave provided to the employee under the federal FMLA provisions if for a qualifying exigency. In another minor difference under Illinois law, the employee must provide at least 14 days notice of the start-date for the leave; but if the leave is for less than five consecutive days, then the employee must of course give as much advanced notice as is practicable in the situation. Just as under the federal provisions, the employer may require some type of verification to confirm the validity of the leave request.

Local governmental ordinances, as well as private company directives, may also address military-related provisions stemming from FMLA. The cited federal and state provisions mentioned in this short overview should be the baseline from which these entities derive the public-policy fundamentals exhibited in the referenced statutes. In regard to enforcement of these provisions, both federal and Illinois law authorize the pursuit of civil actions. Again, please consult the subject law and rules as well as the United States Department of Labor for further details on the law’s requirements and obligations as this article merely seeks to briefly summarize those provisions generally affecting eligible employees with immediate family members who are in military service with a reserve or guard component. ■

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1. Please consult the cited law and rules for further details on the law’s requirements and obligations on both the public and private sector as this brief article merely seeks to summarize a few of the respective military-related provisions.

 


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