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FMLA Expanded for Families of Military Personnel

On January 29, 2008, President Bush signed into law a bill passed by Congress, the National Defense Authorization Act for Fiscal Year 2008. The new law includes two expansions of the Family and Medical Leave Act (FMLA) to provide leave to military service members and their families. The new law requires FMLA-covered employers to provide up to 12 weeks of leave in a 12-month period for a "qualifying exigency" connected to the active duty status of an employee's spouse, son, daughter or parent ("active duty leave"). The new law also entitles eligible family members to take up to 26 weeks of leave to care for a wounded service member ("caregiver leave").

Active Duty Leave

With respect to active duty leave, an eligible employee can take FMLA leave "[b]ecause of any qualifying exigency" (which the Department of Labor will define through forthcoming regulations) arising out of the fact that the spouse, or a son, daughter, or parent of the employee 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. A "contingency operation" is a military operation that 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 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.

Congress did not define the term "qualifying exigency". The active duty leave provisions will not be in effect until the Department of Labor issues final regulations defining a "qualifying exigency." DOL is believed to be preparing such regulations at this time. In the interim, DOL encourages employers to provide this type of leave to qualifying employees.

Caregiver Leave

With respect to caregiver leave, an eligible employee can take up to 26 weeks of FMLA leave to care for a spouse, son, daughter, parent or next of kin (defined as one's "nearest blood relative") who is a covered service member. The service member must have a "serious illness or injury" (defined as "an injury or illness incurred by the member in line of duty on 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") incurred while on active duty and for which the member is: (1) undergoing medical treatment, recuperation or therapy, (2) an outpatient or (3) on a temporary disability retired list. An employee eligible for caregiver leave is entitled to a total of 26 workweeks of leave during a 12-month period to care for the service member. Such leave is only available during a single 12-month period, however. The caregiver leave provisions became effective and apply to employers as of January 28, 2008.

Both active duty and caregiver FMLA leave may be taken on an intermittent or reduced schedule basis, as with the other forms of FMLA leave. The new law also allows employees to use paid leave simultaneously with these forms of FMLA leave.

Employers may request a certification for service member family leave. DOL will define this process through regulation.

Employers are entitled to advance notice from employees seeking to take active duty or caregiver FMLA leave. Employees must provide "reasonable and practicable" notice that they will take such leave when the need for leave is foreseeable.

Employers should be aware that their obligations under the FMLA have expanded, and should revise their FMLA policies to account for these changes. DOL is expected to define what is a "qualifying exigency" shortly, which will assist in revising FMLA policies to have them comply with the new law.

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