DOL regulations do not, however, effective until January 16, 2009.
The created two new categories of leave: (1) qualifying exigency; and (2) military caregiver leave. DOL created four new regulatory sections 825.126, 825.127, 825.309, and 825.310, 825.126 and 825.127 employer and employee military family leave responsibilities. speaking, 825.126 and 825.127 discuss an employee entitlement to qualifying exigency and military care giver leave respectively. Sections 825.309 and 825.310 cover certification requirements for taking qualifying exigency and military care giver leave.
This post will address the main points of the DOL new military family leave uggs on sale regulations for Qualifying Exigency leave Leave"). Separate Posts will address military care giver leave and to the "old" FMLA regulations."
QE to the amendment of the FMLA, an eligible of a covered employer may take leave for qualifying exigencyarising out of the fact that the employee spouse, son, daughter, or parent 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. 29 USC 2612(a)(1)(E). did not, however, define exigency," leaving the matter to the DOL. As a consequence, employers have not been required to provide exigency" leave. is NOT an additional 12 weeks of leave, but merely a new cheap ugg bailey button boots basis for an eligible employee to take their existing 12 weeks of FMLA leave. So, in addition to taking up to 12 weeks of FMLA leave a year for birth, adoption, foster care placement, and a serious health condition, add QE leave.
Active Duty In pertinent part, 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 serving on active duty status. Generally, QE leave is not available to family members of the Regular Armed Forces on active duty status because members of the Regular Armed Forces do not serve "under a call or order active duty" required by the NDAA amendments.
Contingency Operation leave is only available where Federal call to active duty is designated by the of Defense as an 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 against an opposing force. of a call to active duty in and Afghanistan. QE leave is not for every callup to active duty. covered military members active duty orders will reveal whether the call is for a contingency operation.
Son or Daughter The DOL a new definition of "son or daughter" for of family including QE leave. did this because the existing definition below 18 or over 18 and incapable of selfcare would have restricted the availability of this type leave (most members of the Reserve over 18 and ablebodied) in contradiction to the intent of Congress. Common to each is that the need for leave by the employee arise out of the fact that the spouse, son, daughter, or parent of the employee is a military member. one exception, QE leave is family leave: it is not leave available to an employee who is also a covered military member. The 7 days begins to run when the covered family member is provided the shortnotice
(2) events allows leave to attend any official ceremony, program or event sponsored by the military, and to attend family support and assistance programs and information briefings sponsored by the military, military service organizations, or American Red Cross.
(3) Child care and school activities eligible employee may take leave to arrange for child care or attend certain school functions of the son or daughter of a covered military family member, including leave to (i) arrange for alternative school or childcare; (ii) provide childcare on an urgent, immediate need (not regular) basis; (iii) enrollment or transfer of a child in a new school or day care facility; and (iv) attend meetings with school or day care staff regarding discipline, parentteacher conferences, and school counselors. indicates that QE leave is not intended to be used to meet with staff at a school or daycare facility for "routine" academic concerns. Obviously, in many circumstances it will be very difficult to determine whether the need to meet with school staff is casually related to the active duty of a covered military family member or merely for routine academic concerns. Leave is not available for routine mattes, such as paying bills. Leave is available where the counseling is needed by the employee, the covered military member, or the son or daughter of the covered military member counseling, PROVIDED that the counseling arises from active duty service or call to active duty. examples, DOL cites counseling by a military chaplain, pastor, or minister, or counseling offered by the military or a military service organization that is not a health care provider.
(6) R R Up to 5 days of QE leave is available to an eligible employee to spend time with a covered military family member on rest and recuperation leave during a period of deployment. It is also available for the employee to take leave to address issues arising from the death of a covered military family member, such as meeting and recovering the body and funeral arrangements. The DOL specifically noted coverage for participation in the DODsponsored Yellow Ribbon Reintegration Program. Such participation, moreover, is covered even if it exceeds the general 90day limitations period (be a few days) for postdeployment activities. employer and employee must agree on coverage, timing, and duration.
Certification Employers may require that a request for QE leave be supported by a certification confirming the need for leave. Two forms of documentation may be required: (1) a copy of the covered military family member active duty/call to active duty in support of contingency operations, (2) signed from the employee describing the facts regarding each leave for each form of QE leave. DOL has created a certification form (WH 384) for to use. are limited with respect to the information they may obtain to certify QE leave. Employers are allowed to verify the information on the QE including contact with DOD to verify the call to active duty, or calling third party to verify a meeting or appointment schedule. The employee permission is not Recertification is not permitted. To that end, the DOL has created an optional notice for inclusion in handbooks and manuals. new DOL regulations also allow employers to post the notice on the Intranet, provided that all employees and applicants have ready access. You also to post the new DOL military family leave posters. posters are available on the DOL website.
Employee Notice of the Need for QE Leave An employee request QE leave as soon as practicable, regardless of how far in advance such leave is foreseeable. soon as practicable means as soon as both possible and practicable under all of the facts. Generally, this means requesting leave the same day or day following the first learned of the need for leave.
Transfer The FMLA does not permit an employer to transfer an employee to an equivalent position where QE leave is taken on an intermittent or reduced leave schedule basis.
Comment:Employers will want to download the Federal Register version of the new FMLA regulations, including the QE regulations. The 750+ page Federal Register version contains very useful DOL comments animate the meaning and purpose of the QE regulations.
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