Posts Tagged ‘military caregiver’

Military Family Leave Provisions of the FMLA

September 8th, 2010 by mrsking | No Comments | Filed in All Branches, Employment, Useful Forms

http://federalfmla.typepad.com/fmla_blog/2009/01/military-caregiver-leave-key-provisions-of-the-new-dol-regulations.html

This post will address the key provisions of the DOL’s regulations for military caregiver leave.  

General rule

Eligible employees of covered employers are entitled to take up to 26 workweeks of job-protected FMLA leave during a single 12-month period to care for a covered service family member who suffered a serious injury or illness during active military duty.

Key Terms

Eligibility-Military caregiver leave is a form of family leave.  It is leave for a family member to care for an injured covered service member.  It does not grant an injured covered service member leave from work to due to their own serious injury or illness.  Such leave may, however, be protected by the FMLA if it is a serious health condition. 

The DOL did not otherwise change the eligibility rules for purposes of military caregiver leave.  To be eligible, an employee would need to: (1) have been employed at least 12 months; (2) worked at least 1250 hours in the 12-month period preceding leave commencement; and (3) work at a work site where there are at least 50 employees within 75 miles.  

Covered servicemember - There are 3 components to the regulatory definition: (1) current member of the Armed Forces, Guard, or Reserves; (2) who suffered a serious illness or injury in the line of duty on active duty; and (3) is undergoing medical treatment, recuperation, therapy, outpatient, or has been placed on the temporary disability retirement list by the military.

Former members of the Armed Forces, Guard, or Reserves are not “covered servicemembers” for purposes of this entitlement to FMLA leave.  An employee would not, therefore, be entitled to military caregiver leave to care for a daughter, for example, who was injured while serving in Iraq after the daughter has been discharged from the Armed Forces, Guard, or Reserves.  Of course, if the injury constitutes a serious health condition, the employee may still be able to take up to 12 weeks of FMLA leave for that purpose.

Active duty means the servicemember was called up by the federal government (not by a governor) for a contingency operation (think Iraq, Afghanistan) or national emergency.

The injury or illness must render the covered servicemember incapable of performing their military duties.

Employers may require the employee to provide documentation that the covered servicemember has a serious illness or injury and that such condition was incurred in the line of duty while on active duty.  

Covered family members -To be entitled to FMLA leave, the eligible employee must be the spouse, son, daughter, parent, or next of kin of the covered service member.

The regulations modify the definition of son or daughter by dropping any age requirement.  They did this because keeping the age requirement (under 18 or over 18 and incapable of self-care) would have disenfranchised a large number of servicemembers.

The DOL allows the covered servicemember to identify one nearest blood relative as their next of kin.  Where this is not done, the regulations establish an order of priority for next of kin:

  1. Blood relatives granted legal custody by a court or by statute;
  2. brothers/sisters;
  3. grandparents;
  4. aunts/uncles;and
  5. first cousins.

Except where the next of kin has been designated, all family members sharing the closest level of family relationship to the servicemember are considered “next of kin” and each has the right to take FMLA leave to care for the covered servicemember.  As an example, if the brothers and sisters are the nearest blood relative, each has the equal right to take FMLA leave to care for the covered servicemember.

Employers may require the employee to provide reasonable documentation establishing the claimed familial relationship with the covered servicemember.

To Care For – The eligible employee is entitled to FMLA leave “to care for” the covered servicemember.  The “to care for” standard for leave due to a serious health condition applies to military caregiver leave.  It means to provide physical or psychological care, transportation for care, and time to make arrangements for care.

Amount of Leave - An eligible employee is entitled to take up to 26 weeks of FMLA leave in a single 12 month period to care for a covered servicemember. 

The single 12-month period begins to run on the first day that the eligible employee takes military caregiver leave, and ends 12 months after that date.

Military caregiver leave expires at the end of the 12-month period regardless of whether the need continues.  Nor is unused leave “banked” for future use after the expiration of the 12-month period.  If the employee does not use it during the 12-month period, he or she loses it.

The 26 weeks is calculated on a per servicemember, per injury basis.  That means that eligible employees may be entitled to take 26 weeks for more than one covered service family member.  For example, a son in the Reserves receives a combat injury in Iraq.  The eligible employee (mother) could take 26 weeks of FMLA leave to care for the son, all other conditions being met.  In a subsequent 26-week period, the mother could take 26 weeks of FMLA leave to care for her spouse, who was injured while serving in the Reserves in Afghanistan.

An employee may also be entitled to military caregiver FMLA leave for the same covered family member on more than one occasion.  For example, the son recovers from his initial injury and is redeployed to Iraq, where he suffers a second serious illness or injury.  The new injury would be grounds for the employee to take a new 26-weeks of military caregiver leave. 

Similarly, if a new injury arises from the initial injury, the employee would be entitled to a new 26-week leave period. For example, a covered servicemember who lost a leg in Afghanistan develops severe depression.  Generally, however, complications from an initial injury will not serve as the basis for a new 26-week period of leave. 

Note that in the 12-month period that an employee is taking military caregiver leave the total amount of FMLA leave available to the employee is capped at 26 weeks for all FMLA covered conditions.  

When the need for military care giver leave also qualifies as leave due to a serious health condition, the DOL regulations require employers to initially designate the leave as military caregiver leave.

Form of Leave -  Military caregiver leave may be taken intermittently, on a reduced leave schedule, or in a single block of time.  Leave taken on an intermittent or reduced leave schedule must be medically necessary.

Transfer to alternative position - Employers may transfer an employee who needs leave on an intermittent or reduced leave schedule to care for a covered servicemember that is foreseeable based on planned medical treatment for the servicemember.  Transfer must comply with applicable collective bargaining agreements, and must have equivalent pay and benefits.  Equivalent duties are not required.

Employee notice of the need for military caregiver leave - As with other forms of FMLA, an employee who needs military caregiver leave must provide their employer with timely and adequate notice of their need.  Timely notice depends on whether the need for leave was foreseeable or not. 

Certification - Employers may require that an employee support their request for military caregiver leave with medical documentation from identified health care providers.  The regulations identify what information an employer is entitled to require in the certification.  The DOL also created a form (WH-385) that conforms to the regulatory requirements. 

Second and third health care provider opinions are not permitted for leave to care for a covered servicemember.  Nor are re certifications permitted. 

Comment: However you feel about them, the regulations provide welcome guidance for employers and employees given that the military cargiver provisions of the NDAA have been in effect since January of last year.  

Employers need to review their handbooks, manuals and FMLA notice policies to ensure that the military leave provisions of the FMLA are addressed.  Employers should also use the new DOL-approved forms where possible to avoid requiring more information than permitted.  

http://www.in.gov/spd/files/cfcs_faqs.pdf

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Caregiving strains families of veterans with severe injuries

June 7th, 2010 by mrsking | No Comments | Filed in Family, In The News

 

Kevin Kammerdiener’s mother, Leslie, takes care of his every need, which would be fine if he were in preschool.

The thing is, “Kamm” is 21. He suffered a traumatic brain injury, shattered bones and burns on 25% of his body in Afghanistan in May 2008, which left him in a wheelchair, unable to speak and in chronic pain.

 

 

Leslie moved from Pennsylvania to her son’s home in Riverview, Fla., to care for him after he spent months at a military hospital in San Antonio.

Now Leslie Kammerdiener, 44, spends her days making sure Kevin eats well, is clean and comfortable, and is not in pain. More recently, she has been helping him rebuild his vocabulary (he can say about 100 words), which he lost after a suicide bomber drove a vehicle full of explosives into his Humvee. By night, she soothes him when he is wakeful, which she says is pretty much all the time.

“I’m lucky if I get two to four hours of sleep at one time,” Kammerdiener says.

Mostly, Leslie just wants her once-strapping son to be safe and happy — to teach him enough words so he can let people know what he needs, maybe even have a relationship one day, she says hopefully, mentioning the prom photo he sometimes cradles and sobs over.

Kammerdiener is among thousands of unpaid caregivers — parents, spouses, siblings and war buddies — helping veterans injured in the Iraq and Afghanistan wars get through each day, says Barbara Cohoon, deputy director of government relations for the non-profit National Military Family Association. She says the caregivers are a vulnerable group, often under-recognized, and in need of help to navigate the military’s medical system. Cohoon says not all caregivers receive military benefits, even though many have quit jobs, moved out of their homes and drained their savings to care for their loved ones.

“Nobody’s got a handle on numbers, but 7,500 is the number bandied about,” says Cohoon, whose organization provides counseling and helps families negotiate the health system.

The range of injuries caregivers attend to spans from gashes and fractures that will heal, to comas, amputations, burns, paralysis, nerve damage and brain injuries so severe that cognitive function lingers at the toddler level or below.

The Defense Department’s most recent tally of Afghan and Iraq war-related traumatic brain injuries is 161,025. A 2008 report from the non-profit research company RAND, however, put the figure at 320,000 out of the 1.64 million deployed by that time. Cohoon says it’s estimated that about 350 to 400 such patients are so severely hurt they will need full-time care for the rest of their lives.

“Invisible” mental health wounds, including post-traumatic stress disorder, are also a major concern for returning veterans, even those who show no outward wounds, says Rene Bardorf, director of the Bob Woodruff Foundation, a non-profit organization that helps the families of injured veterans. It was launched by Bob and Lee Woodruff after the ABC News anchor almost died from a brain injury in Iraq in 2006. Bardorf says it’s estimated that more than 300,000 service members have psychological wounds.

 

 

“We’re seeing complex injuries — individuals who simply would not have survived previous conflicts, and this has placed an enormous load on families,” says U.S. Army Brigadier Gen. Loree Sutton, director of the Defense Centers of Excellence for Psychological Health and Traumatic Brain Injury in Arlington, Va.

 

 

Sutton, the Army’s highest-ranking psychiatrist, points out that groups such as Cohoon’s are trying to turn caregiver legislation — two bills are now being debated in the House and Senate — into a law that would give those like Leslie Kammerdiener financial support, including health insurance.

Kammerdiener, who has a degenerative nerve disease, no longer has health insurance, and she relies on donations.

Losses all around

Ed and Beth Edmundson’s son Eric, 29, headed to Iraq healthy and strong in August 2005 and returned in October with a severe brain injury after a bomb exploded near him. He is unable to walk and is cognitively impaired.

Before the injury, both parents had good jobs and retirement savings, but they moved to New Bern, N.C., to live with Eric, his young wife, Stephanie, and their baby, Gracie. They’ve run through their savings and can’t afford health insurance.

“Eric needs help with every aspect of survival,” his father says. “It was a loss all around for everybody. A loss of income, retirement, time together.”

Financial losses aren’t all caregivers rack up. Social lives and relationships change or go away.

“My relationship with my wife today is different than it was four years ago,” Ed says. “The weekend before Eric was injured, Beth and I were living in our own home, involved in sea turtle rescues, walking on the beach, and everything’s hunky-dory. And the next weekend, your world is caved in.”

Their health has been affected by the stress as well. Last fall, Ed couldn’t afford to visit the doctor when a chest cold turned into pneumonia. The non-profit group Wounded Warrior Project stepped up with a donation that paid for antibiotics, breathing treatments and steroids.

Recently, an extra strain hit their finely tuned family routine when Beth, who does the bulk of the cooking, cleaning and hygiene for Eric, broke her ankle while playing with Eric’s now-5-year-old daughter. Her medical bill topped $46,000.

“Beth and I aren’t moving forward. We’re a foot forward and a foot back,” he says.

Sutton says the military has increased its support resources for families and has more on the way. “There has been a steady crescendo of efforts in recognition for the need to build family resilience,” she says.

She points to a family assistance program and a 24-hour hotline. She says the Defense Department plans this spring to release a “caregiver’s curriculum,” a guide for caregivers and medical staff treating wounded veterans and their families.

Gap in understanding

Kammerdiener has been disappointed by the military support and says the programs have done nothing for her physical and mental health needs.

Cohoon says many caregivers don’t know about federal recovery coordinators, who can help caregivers make sense of the military’s medical resources. “They’re not letting them even know they exist,” Cohoon says.

Getting the physical and emotional health support they need may be easier for those still on active duty, such as Doug McCarron, who returned from Iraq after a blast injury led to a toe amputation and shrapnel wounds in one leg caused nerve damage. McCarron works on a base near his home in Whittier, Calif., but is still healing.

“I have phantom pains, nerve pain, walking challenges. I strain to hear,” says McCarron, 39, who also wrestles with post-traumatic stress. His wife of one year, Cherish, 32, soothes him when he has nightmares, but he worries about causing her distress.

Even if they want to, family members may not be prepared to help injured veterans, says Paul Larson, professor of psychology at the Chicago School of Professional Psychology, which works with veterans and their relatives as part of The Yellow Ribbon Project, developed last year with the Illinois Army National Guard. “They come at it as best they can with common-sense wisdom, but there’s this gap between recognizing a behavior, like aggression and irritability, and actually handling it,” Larson says.

Some families, such as the Edmundsons, have turned to non-profit groups. The National Military Family Association offers healing adventure camps for families where they can share experiences and are given resources.

The Woodruff Foundation funnels donations to community-based projects that support injured veterans and their families in their hometowns.

Larson says caregivers can relieve burnout by creating times of emotional distance between themselves and the patient.

Sutton says it’s important to keep hope alive, too. “Troops wage war. Healers wage hope.”

The Edmundsons are doing just that. “We made it a goal to protect the nucleus of our family,” Ed says. But as their medical bills and house and car repairs pile up, he says, a little extra help would be embraced: “We’re holding out and hoping for the caregivers legislation.”

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