Aside from the Americans with Disabilities Act Amendments Act considerations, the 2008 and 2009 Family and Medical Leave Act (FMLA) military-related leave amendments have created a mini Bermuda Triangle within the FMLA itself.
Under these FMLA amendments, a covered family member’s military-related “serious injury or illness” entitles an eligible employee to as many as 26 workweeks of FMLA leave for caregiving purposes in a single 12-month period. That entitlement is quite different from a non-military-related family member’s “serious health condition,” which entitles an eligible employee to no more than 12 workweeks of caregiving leave in any given FMLA leave year. These distinctions can be found in the January 2009 regulations that established rules for the 2008 military-related leave amendments.
A family member’s “serious injury or illness” that would entitle an eligible employee to take military caregiver leave is defined simply as “an injury or illness incurred … in the line of duty … that may render the service member medically unfit to perform the duties of his or her office, grade, rank or rating.”
The October 2009 FMLA amendments expanded that definition to include pre-existing conditions aggravated by the family member’s military service, as well as any illness or injury incurred in, or aggravated by, such service when the manifestations arose only after the service was completed. Considered together, this is a vastly different definition from that of the regular FMLA “serious health condition,” which was barely tweaked in the January 2009 FMLA regulations. Employers should expect additional Department of Labor (DOL) regulations to clarify what constitutes a “serious injury or illness” following the October 2009 amendments that added veteran and condition-aggravation components to the definition.
The stark differences between the two definitions is borne out by the existence of the DOL’s wholly separate model certification forms for each type of condition: the WH-385 for a covered family member’s military-related “serious injury or illness” and the WH-380-F for a family member’s non-military-related “serious health condition.” Knowing the type of leave and condition at issue is vitally important because the entitlements are vastly different regarding:
- The amount of leave available (26 workweeks vs. 12).
- When the leave is available (in a single 12-month period upon commencement vs. in the employer’s established 12-month FMLA leave year).
- Follow-up certification requirements (second or third opinions and recertifications may not be requested for a military-related “serious injury or illness,” and certain alternate forms of certification must be accepted for military-related conditions).
In addition, there are more family members for whom an eligible employee may take military-related caregiver leave than for whom the employee may take non-military-related caregiver leave. The former is available for caregiving of a spouse, parent, adult child and “next of kin,” defined as the nearest blood relative. The latter is reserved for caregiving of a spouse, parent, minor child younger than 18 or an adult child “incapable of self-care”; no leave is available for adult children who are capable of self-care or any class of “next of kin.”
The author is an attorney with the Lansing, Mich., office of Miller, Canfield, Paddock and Stone PLC, and is past president of the SHRM-affiliated Human Resource Management Association of Mid-Michigan.