Summary of new FMLA Regulations: Military Family Leave

Yesterday, I examined 10 key changes in the new FMLA regulations to the legacy FMLA provisions. Today, I’ll break down the new regulations’ effect on Section 585(a) of the National Defense Authorization Act for FY 2008. That provision amended the FMLA to provide eligible employees working for covered employers two important new leave rights related to military service: military caregiver (or covered servicemember) leave and qualifying exigency leave.

Military Caregiver Leave (also known as Covered Servicemember Leave):

1. Eligible employees who are family members of covered servicemembers will be able to take up to 26 workweeks of leave in a “single 12-month period” to care for a covered servicemember with a serious illness or injury incurred in the line of duty on active duty.

2. This provision also extends FMLA protection to additional family members (i.e., next of kin) beyond those who may take FMLA leave for other qualifying reasons.

3. When leave is taken to care for a covered servicemember with a serious injury or illness, an employer may require an employee to support his or her request for leave with a sufficient certification, which includes certain necessary military and medical information support the request for leave.

Qualifying Exigency Leave:

1. This provision makes the normal 12 workweeks of FMLA job-protected leave available to eligible employees with a covered military member serving in the National Guard or Reserves to use for “any qualifying exigency” arising out of the fact that a covered military member is on active duty or called to active duty status in support of a contingency operation.

2. The Department’s final rule defines qualifying exigency as any of the following categories for which employees can use FMLA leave: i)Short-notice deployment; ii) Military events and related activities; iii)Childcare and school activities; iv) Financial and legal arrangements; v) Counseling; vi) Rest and recuperation; vii) Post-deployment activities; and viii) Additional activities not encompassed in the other categories, but agreed to by the employer and employee.

3. Employers will be able to require an employee to provide a copy of the covered military member’s active duty orders or other documentation issued by the military which indicates that the covered military member is on active duty (or has been notified of an impending call or order to active duty), and the dates of the covered military member’s active duty service.

4. Each time leave is first taken for a qualifying exigency, an employer may require an employee to provide a certification that sets forth information pertaining to the exigency.