On January 28, 2008, President Bush signed into law new FMLA leave entitlements for military families (â€œmilitary family leave provisionsâ€). The National Defense Authorization Act for FY 2008 amended the FMLA to provide two new types of unpaid military family leave for FMLA-eligible employees: â€œqualifying exigency leaveâ€ and â€œmilitary caregiver leave.â€ Both types of leave have been in effect since January 16, 2009, after the publication of new regulations by the Department of Labor. All providers with at least 50 or more employees need to review the new standards and form issued by the Department of Labor and revise current personnel policies and procedures to comply.
Military Caregiver Leave for Up To 26 Workweeks. An eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember with a serious injury or illness may take job-protected FMLA leave to provide care to the servicemember. Specifically, an eligible employee is entitled to take up to 26 workweeks of leave during a â€œsingle 12- month periodâ€ to care for a seriously injured or ill covered servicemember. The â€œsingle 12- month periodâ€ begins on the first day the eligible employee takes military caregiver leave and ends 12 months after that date, regardless of the method used by the employer to determine the employeeâ€™s 12 workweeks of leave entitlement for other FMLA-qualifying reasons. Note that this military caregiver leave extends to those seriously injured or ill members of both the Regular Armed Forces and the National Guard or Reserves (a distinction youâ€™ll see under the second type of leave, â€œqualifying exigency leaveâ€). A â€œserious injury or illnessâ€ is an injury or illness incurred by a covered servicemember in the line of duty on active duty that may render the servicemember medically unfit to perform the duties of the memberâ€™s office, grade, rank, or rating.
Qualifying Exigency Leave for Up To 12 Weeks. This second type of new military family leave may be taken for any qualifying exigency arising out of the fact that a covered military member is on active duty or call to active duty status. The Departmentâ€™s new regulations include a broad list of activities that are considered qualifying exigencies and will permit eligible employees who are family members of a covered military member to take FMLA leave to address the most common issues that arise when a covered military member is deployed, such as attending military-sponsored functions, making appropriate financial and legal arrangements, and arranging for alternative childcare. In contrast to the Military Caregiver Leave, however, this Leave covers only employees who are eligible family members of the National Guard or Reserves who is under a call or order to active duty (or has been notified of an impending call or order to active duty) in support of a contingency operation.
The Department of Labor has published guides and FAQs related to these new military family leave provisions and can be found on the Department of Laborâ€™s new FMLA Website at www.dol.gov/esa/whd/fmla/finalrule.htm.
Should you have any questions or need the new DOL form specific to these Military Family Leave changes, please call your legal counsel.