New FMLA Military Leave Provisions

09/03/2008 / Christopher J. Harristhal and Sejal Desai Winkelman

In January 2008, the President signed a bill into law amending the Family and Medical Leave Act (FMLA) creating new forms of leave for employees in military families.  The amendment to the FMLA creates two new forms of leave: (1) a 26-week leave to take care of an injured service member; and (2) a 12-week leave period to allow for a family member to deal with a “qualifying exigency” relating to the military deployment of a spouse, child, or parent.
Leave to Care For an Injured Service Member
This amendment took effect on January 28, 2008 and gives an employee up to 26 weeks of leave to care for a member of the employee’s family who was injured while in military service.  An eligible employee must be the spouse, child, parent or “next of kin” to “a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.”  The new provisions define “next of kin” as the “nearest blood relative” of the injured service member.  “Serious injury or illness is 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.”  While this definition means that the service member must have been injured “in the line of duty” it does not mean that service member’s injuries need to have been incurred abroad—it could apply even if the service member was stationed somewhere in the United States.
The 26 weeks of leave available under this new provision are not in addition to the previous 12 weeks of leave under the FMLA.  An employee that uses 12 weeks of FMLA leave for another reason in one 12-month period would then only have 14 weeks of leave to care for an injured service member.  This provision still greatly broadens both the scope of FMLA leave as well as the amount of time available for certain employees.
Leave Due to a Family Member Being Called to Active Duty
Employees who have a spouse, parent, or child who is on or has been called to active duty in the Armed Forces may take up to 12 weeks of FMLA leave yearly when they experience a “qualifying exigency.” This is included as part of the other sections of the FMLA, meaning that an employee who uses 4 weeks of leave under the FMLA for other reasons in one 12-month period would only be able to use up to 8 weeks of leave for a “qualifying exigency” under the new provision.  This particular amendment does not create additional leave time, but does broaden the scope of what employees may qualify for leave under the FMLA.
By its express terms, this provision is not effective until the Secretary of Labor issues final regulations defining “any qualifying exigency.” The DOL has said that they will expedite passage of the new rule. The DOL sought comments regarding this provision, and the comment period ended in April 2008. In the proposed rules, the DOL considered whether it would be appropriate to develop a list of pre-deployment, deployment, and post-deployment exigencies. DOL sought comments on whether a “qualifying exigency” should include making arrangements for childcare; making financial and legal arrangements to address service member’s absence; attending to farewell or arrival arrangements for a service member; attending to affairs caused by the missing status or death of a service member; and other situations. The DOL is currently considering the comments it received in response to the discussion of the military family leave provisions and anticipates that the next step in the rulemaking process will be the issuance of final regulations.
An employer may request that the employee seeking leave to care for an injured service member provide certification from a health care provider as to the nature and severity of the injured service member’s injuries. This provision works identically to the previous certification rules for other family members.
Congress also left the DOL with the task of creating rules for the certification of active duty status for the 12-week military leave provision regarding “qualifying exigency” in the event of being called to active duty. The DOL is considering what certification employees may require as they work to clarify this provision.
These new amendments may require employers to revise their leave policies and train supervisors and employees on how to deal with requests for military leave. While the 12-week leave provision for a “qualifying exigency” does not take effect until the DOL publishes its rule, the provision giving 26 weeks for the care of an injured service member is already in effect, and employers should either have or be in process of changing their leave policies to comply with these new rules. Employers should also be aware that the DOL is working to clarify some of these new provisions and be prepared to further revise their leave policies once the new regulations are available.