Family Military Caregiver/Qualifying Exigency Leave Policy

I. Purpose

The Federal government expanded the eligible events under the Family and Medical Leave Act (FMLA)  applicable to military families which will be described below.

II. Scope

1. Eligibility for FMLA Military Caregiver / Qualifying Exigency Leave (FMC/QEL) is extended to EHRA Non-Faculty and SHRA employees who are in permanent, probationary, trainee or time-limited status, either full-time or part-time (20 hours or more) positions who:

1. Have 12 months cumulative service with North Carolina State government, including service in a temporary position, and

2. Have been in active pay status with North Carolina State Government at least 1,040 hours during the previous 12 months.

2. Eligibility for FMC/QEL is also extended to temporary, intermittent or part-time (less than 20 hours per week) employees* who:

1. Have 12 months cumulative service with North Carolina State Government, including service in a temporary position, and

2. Have been in active pay status at least 1,250 hours during the previous 12 months.

* Temporary, intermittent and part-time (less than 20 hours per week) employees are not eligible to accrue paid leave; therefore all FMLA leave will be leave without pay for these employees.

3. Calculating Time and Service

1. Employment periods prior to a break in service of seven years or more are not counted in determining whether the employee has been employed by North Carolina State Government for at least 12 months.
2. Time spent in the National Guard or reserves counts as time worked to determine eligibility for FMC/QEL.

III. Definitions

A.  All definitions in the Family and Medical Leave Act (FMLA) policy apply to this policy.  In addition, the following definitions apply.

1. Veteran – The term “veteran” means a person who served in the active military, naval, or air service, and who was discharged or released under conditions other than dishonorable.

2. Spouse – A husband or wife recognized by the State of North Carolina. However, for the purpose of this policy, UNC Asheville recognizes domestic partners.  If someone should request FMLA leave for a domestic partner, the individual must present a legal document or written documentation covering residence and/or facts and circumstances verifying the relationship.  FMLA leave is not recognized for domestic partners by federal guidelines, denial of leave for domestic partners cannot be grieved

3. Covered Active Duty – The term “covered active duty” means:

a.  in the case of a member of a regular component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country; and

b. in the case of a member of a reserve component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country under a call or order to active duty under a contingency operation.

4. Covered Military Member for Military Caregiver Leave -. The term “covered  Military member” means:

a. a member of the Armed Forces (including the National Guard or Reserves) who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on their temporary disability retired list for a serious injury or illness.

b. a veteran who is undergoing medical treatment, recuperation, or therapy, for a serious injury or illness and who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy.

5. Covered Military Member for Exigency Leave – An employee’s spouse, son, daughter, or parent who is a member of the National Guard or Reserves who is on active duty or has been called to active duty in support of a contingency operation.

6. Contingency Operation – The term “contingency operation” means a military operation that:

a. is designated by the Secretary of Defense as an operation 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 military force; or

b. results in the call or order to, or retention on, active duty of members of the uniformed services during a war or during a national emergency declared by the President or Congress

7. Military member’s Next of Kin – The nearest blood relative of the service member, other than spouse, parent, son, or daughter, in the following order of priority: blood relatives who have been granted legal custody of the military member by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the covered military member has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave, in which case the designated individual shall be deemed to be the next of kin.

To confirm that the employee and military member share one of the familial relationships or to confirm that the employee has been specifically designated as the military member’s next of kin, UNC Asheville may request a statement from the military member outlining the familial relationship or indicating that the employee has been designated as the “next of kin.”

8. Serious Injury or Illness for a Member of the Uniformed Services –  “serious injury or illness” means an injury or illness incurred by the military member in line of duty on covered active duty in the Uniformed Services, or injuries or illnesses that existed before the beginning of the  military member’s covered active duty and were aggravated by service in the line of duty on covered active duty in the Armed Forces, that may render the member medically unfit to perform the duties of the member’s office, grade, rank or rating.

9. Serious Injury or Illness for a veteran who was a member of the Armed Forces (including a member of the National Guard or reserves) at any time during a period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation or therapy, “serious injury or illness” means a qualifying (to be defined by the Secretary of Labor) injury or illness that was incurred by the military member in line of duty on covered active duty in the Armed Forces (or existed before the beginning of the military member’s covered active duty and was aggravated by service in line of duty on covered active duty in the Armed Forces) and that manifested itself before or after the military member became a veteran.

Treatment includes, but is not limited to, examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations. Ordinarily, unless complications arise, the following are examples of conditions that do not meet the definition:  common cold, flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, cosmetic treatments, etc. The following may meet the definition if all other conditions of this section are met:  restorative dental or plastic surgery after an injury or removal of cancerous growths, mental illness, or treatment from substance abuse.

10. Outpatient Status of Covered Service Member – “Outpatient status,” with respect to a covered military member, means the status of a member of the Uniformed Services assigned to a military medical treatment facility as an outpatient or a unit established for the purpose of providing command and control of the Uniformed Services receiving medical care as outpatients.

11. Qualifying Exigency – The reasons for which an employee may take leave because of a qualifying exigency are divided into nine general categories: Short-notice deployment, Military events and related activities, Childcare and school activities, Parental care, Financial and legal arrangements, Counseling, Rest and recuperation, Post-deployment activities and Additional activities.

12. Qualifying Exigency Explanation –  When an absence is necessary because a covered military member of the National Guard or Reserves is on covered active duty or has been called to covered active duty, following is a list of reasons for which an employee may take leave because of a qualifying exigency.

1. Short-notice deployment – leave to address any issue that arises from the fact that the employee is notified of an impending call or order to covered active duty seven or fewer calendar days prior to the date of deployment. This leave can be used for a period of seven calendar days beginning on the date the employee is notified.
2. Military events and related activities – leave to attend any official ceremony, program or event sponsored by the military and to attend family support and assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross that are related to the covered active duty or call to covered active duty status of the covered service member.
3. Childcare and school activities – leave to arrange alternative childcare when the covered active duty or call to covered active duty status necessitates a change in the existing childcare arrangement, to provide childcare on an urgent, immediate need basis when the need arises from the covered active duty or call to covered active duty, to enroll the child[ren] in or transfer the child[ren] to a new school or day care facility when necessitated by the covered active duty or call to covered active duty, and to attend meetings with staff at a school or a day care facility when such meetings are necessary due to circumstances arising from the covered active duty or call to covered active duty status.
4. Parental Care – leave to care for a military member’s parent who is incapable of self-care when the care is necessitated by the member’s covered active duty.  Such care may include arranging for alternative care, providing care on an immediate basis, admitting or transferring the parent to a care facility, or attending meetings with staff at a care facility.
5. Financial and legal arrangements – leave to make or update financial or legal arrangements to address the employee’s absence such as preparing and executing financial and healthcare powers of attorney, transferring bank account signature authority, enrolling in the Defense Enrollment Eligibility Reporting system (DEERS), obtaining military identification cards, or preparing or updating a will or living trust.
6. Counseling – leave to attend counseling provided by someone other than a healthcare provider for oneself, for the covered military member, or for the child[ren] provided that the need for counseling arises from the covered active duty or call to covered active duty status of a covered military member.
7. Rest and Recuperation – leave to spend time with a covered military member who is on short-term, temporary Rest and Recuperation leave during the period of deployment. Eligible employees may take up to 15 days of leave for each instance of Rest and Recuperation.
8. Post-deployment activities – leave to attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military for a period of 90 days following the termination of the employee’s active duty and to address issues that arise from the death of a covered military member while on active duty status, such as meeting and recovering the body of the military member and making funeral arrangements, and
9. Additional activities where UNC Asheville and the employee agree to the leave – leave to address other events which arise out of the covered military member’s covered active duty or call to covered active duty status, provided UNC Asheville and the employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave.

IV. Policy

A. Military Caregiver Leave*

Military Caregiver Leave allows up to 26 weeks of leave in a single 12-month period (commencing on the date the employee first takes the leave) to be granted to an eligible employee to provide care for a seriously ill or injured covered military member who is the eligible employee’s spouse, son, daughter, parent, or eligible ‘next of kin.’  The 26 weeks is inclusive of the 12 weeks of leave already provided under regular FMLA (i.e. the employee is not entitled to 12 weeks of regular FMLA leave in addition to the 26 weeks). If an eligible employee does not take all of his or her 26 weeks of leave entitlement to care for a covered military member during this “single 12-month period,” the remaining part of his or her 26 workweeks to care for the covered military member is forfeited.

The 26-workweek entitlement is to be applied as a per-covered military member, per-injury basis, therefore an eligible employee may be entitled to take more than one period of 26 workweeks of leave if the leave is to care for different covered military members or to care for the same military member with a subsequent serious injury or illness.

Although the leave is unpaid, the employee may use available paid leave accumulations to remain in pay status for all or part of the absence. The employee may choose to exhaust available sick and/or vacation/bonus leave, or any portion, or go on Leave Without Pay [LWOP] to care for an covered military family member. Voluntary Shared Leave donations may be applied to Military Caregiver Leave.

B. Qualifying Exigency Leave

Qualifying Exigency Leave allows up to 12 weeks of leave to be granted to an eligible employee who is the spouse, son, daughter, parent or next of kin  of a military member who is placed on covered active duty or has been notified of an impending call or order to covered active duty so that the eligible employee may attend to qualifying exigencies.  (See “Definitions” section of this Policy for a detailed explanation of Qualifying Exigencies.)

The 12 weeks is not in addition to the regular 12 weeks of leave available for other FMLA purposes. Although the leave is unpaid, the employee may use available paid leave accumulations to remain in pay status for all or part of the absence. The employee may use military family member is on covered active duty or has been called to covered active duty. Voluntary Shared Leave donations cannot be applied to Qualifying Exigency Leave.

For details regarding leave charges, please see the Family and Medical Leave Act (FMLA) policy.

V.  Procedure

To apply for FMLA Military Caregiver/Qualifying Exigency Leave (FMC/QEL):

• The employee must complete a “Medical Leave Request Form.”
• If applying for Qualified Exigency Leave, the employee must provide a copy of the coveredmilitary member’s orders.
• Once the Medical Leave Request Form is approved by the supervisor and the second-level supervisor (as appropriate), the employee must forward the signed document to the Leave Coordinator in Human Resources.
• The Leave Coordinator will review the request form for completeness and adherence to policy and, if applicable, forward the Medical Certification Form to the employee that must be completed, including certification by the Healthcare Provider, and returned to the Leave Coordinator.
• If the employee requests shared leave donations for FMC, the Medical Leave Coordinator will send a notice to the campus and apply donations to the employee’s leave account.

VI. Record Keeping

FMLA (including FMC/QEL) shall be accounted for separate from other types of paid leave or leave without pay. The employee’s supervisor is responsible for communicating with the Leave Coordinator to monitor the length, use, and continuing eligibility of FMLA leave for the employee.

When an employee transfers to another State agency or to another University department, the Leave Coordinator will forward the dates and amount of FMLA leave taken to the hiring agency or department.

All medical documentation, along with a copy of the employee’s application for FMLA leave under this policy, will be kept in the Office of Human Resources. Medical documentation under this policy is kept separate from employee personnel files and is confidential. The employee’s department may not retain FMLA forms in departmental files – all forms must be filed in the personnel files located in Human Resources.