UNITED STATES FORCES-IRAQ JOINT AREA SUPPORT GROUP-CENTRAL (P) BAGHDAD, IRAQ. ‘APO AE 09348 JASG-IA 30 June 2010 MEMORANDUM FOR COL Mark N. Campsey, Commander, Joint Area Support Group- Central, FOB Prosperity, APO AE 09348 SUBJECT: Military Family Leave Provisions of the Family Medical Leave Act 1, The Family Medical Leave Act (FMLA) was amended in 2008 to inchide two new categories of leave associated with military service: (1) Qualifying exigency leave and (2) Military caregiver leave. a. Qualifying exigency leave permits qualifying family members to take unpaid FMLA leave from qualifying employers in order to tend to matters relating to a servicemember’s deployment. Qualifying exigency leave may be used to attend mobilization ceremonies, spend time with servicemembers who are at home on rest and recuperation leave, to care for the deployed servicemember’s child under exigent circumstances and to attend post-mobilization reintegration activities within 90 days of going off orders. Qualifying exigency leave may only be used by qualifying family members of activated Reservists and National Guardsmen; family members of the Regular Armed Forces do not qualify for this benefit b. Military caregiver leave permits qualifying family members to take unpaid FMLA leave from qualifying employers in order to care for servicemembers who have incurred an illness or injury as a result of his or her military service. Military caregiver leave may be used by family members of seriously injured or ill members of both the Regular Armed Forces and the National Guard or Reserves called to active duty as well as certain retired members of the Armed Forees. ¢. The amount of leave under either category is capped. The cap on exigency leave is 12 weeks in a 12 month rolling calendar year, and the cap on military caregiver leave is 26 weeks in 12 month rolling calendar year. The 12 month rolling calendar year begins on the first date FMLA is taken. In no case may the two types of leave be used in excess of 26 weeks in a 12 month rolling calendar year. 4. Although the statute states the employer need only provide unpaid leave, the employer may allow the family member to take chargeable annual leave or sick leave.' More information regarding military family leave may be found at hitp://www.dol.gov/whd/fimla/finalrule/ MilitaryFAQs pdf. ' Family members employed by the federal government may stack paid and unpaid leave time. Family members ‘employed by the federal government should consult with their administrative officers for more details.JASG-IA SUBJECT: Military Family Leave Provisions of the Family Medical Leave Act 2. First, in order for a family member to be considered a qualifying family member under either category, the family member must first fall within the statute's definition of a family member. FMLA states that a family member is a spouse, son or daughter (biological, adopted, or foster child, stepchild, legal ward, or a child for whom the employee stood in loco parentis, and who is of any age) and parent (biological, adopted, or foster, stepparent, legal guardian, or any other person who stood in loco parentis to the servicemember). This term does not include parents “in law.” However, if military caregiver leave is requested then a person identified as a “next of kin” is a qualified family member. If the family member meets the definition of the statute, she must also establish that she has worked for the employer for at least 1,250 hours over the previous 12 month period. 3. Second, if the family member falls within the statutory definition he or she must then determine whether his or her employer is a qualifying employer as defined by the statute. The FMLA defines an employer as any public agencies, including state, local and federal employers, local educational agencies (schools), and private sector employers that employ 50 or more employees within a 75 mile radius. If the employer does not fall within this definition the family member is afforded the benefits under FMLA. 4. Third, the family member's FMLA leave must be sought in connection to a covered military member. For the purposes of exigency leave a covered military member is an activated Reservist or National Guardsman called to active duty or has been notified of a call to active duty status. Family members of the Regular Armed Forces are not eligible for this type of FMLA leave. For the purposes of military caregiver leave, the covered military member is a member of the Regular Armed Forces and the National Guard or Reserves called to active duty as well as certain retired members of the Armed Forces. Family members must establish that the servicemember is a covered military member by presenting evidence to his or her employer. This would include documents such as active duty orders, retirement paperwork or memorandums from the department concemed identifying the servicemember as a member of the armed forces. 5. If the conditions in paragraphs 2, 3 and 4 have all been met, FMLA leave may be granted for use where a qualifying exigency exists or where a servicemember is in need of a family caregiver. An exigent circumstance can be anything agreed upon between the family member and employer but must include: a. Issues arising from a covered military member's short notice deployment (i.c., deployment on seven or less days of notice) for a period of seven days from the date of notification. b. Military events and related activities, such as official ceremonies, programs, or events sponsored by the military or family support or assistance programs, and informational briefings sponsored or promoted by the military, military service organizations, o the American Red Cross.JASG-IA, SUBJECT: Military Family Leave Provisions of the Family Medical Leave Act ¢. Certain childcare and related activities arising from the active duty or call to active duty status of a covered military member, such as arranging for alternative childcare, providing childcare on @ non-routine, urgent, immediate need basis, enrolling or transferring a child ina new school or day care facility, and attending certain meetings at school or a day care facility if they are necessary due to circumstances arising from the active duty or call to active duty of the covered military member. 4. Making or updating financial and legal arrangements to address a covered military member's absence. e. Attending counseling provided by someone other than a health care provider for oneself, the covered military member, or the child of the covered military member, the need for which arises from the active duty or call to active duty status of the covered military member. £. Taking up to five days of leave to spend time with a covered military member who is on short-term temporary, rest and recuperation leave during deployment. g. Attending to certain post-deployment activities, including attending arrival ceremonies, reintegration briefings and events, and other official ceremonies or programs sponsored by the military for a period of 90 days following the termination of the covered military member's active duty status, and addressing issues arising from the death of a covered military member. 6. Family members are entitled to a maximum of 12 weeks of unpaid FMLA leave associated with exigent circumstances in a 12 month rolling calendar year. The 12 month rolling calendar year begins on the first date FMLA is taken. Although the statute states that the employer need only provide unpaid leave, the employer may allow the family member to take chargeable annual leave or sick leave. 7. A family member may take military caregiver leave where the covered servicemember is undergoing medical treatment, recuperation, therapy, outpatient treatment, or is otherwise on the temporary disability retired list, for a serious injury or illness incurred in the line of duty on active duty. A serious injury or iliness is defined as an injury or illness incurred by a covered servicemember in the line of duty on active duty that may render the servicemember medically unfit to perform the duties of the member's office, grade, rank, or rating. Once it is determined that a family member is eligible under the statute to care for a covered itary member, the family member may take up to a maximum of 26 weeks of FMLA leave in a 12 month rolling calendar year. The 12 ‘month rolling calendar year begins on the first date FMLA is taken. Although the statute states that the employer need only provide unpaid leave, the employer may allow the family member to take chargeable annual leave or sick leave. 8. Family members may take both exigent circumstances leave and military caregiver leave during the same 12 month rolling calendar year but at no time shall the aggregate leave time exceed 26 weeks of leave.JASG-JA, SUBJECT: Military Family Leave Provisions of the Family Medical Leave Act 9. Point of contact for this memorandum is the undersigned at DSN 239-1142 or james.whitaker@iraq.centeom.mil. JAMES D. WHITAKER MAI, JA Deputy Command Judge Advocate