On Nov. 17, 2008, the Department of Labor published its final regulations governing the Family and Medical Leave Act (FMLA), which will become effective Jan. 16, 2009.

Included in the more than 750 pages of revised regulations is some much-needed clarification on the Military Family Leave Amendments provided under the National Defense Authorization Act.

Designed to expand the FMLA by allowing for additional leave required for the care of injured service members and emergency leave for family members of those called into specific active duty, the new amendments offer a clearer picture of what constitutes “military caregiver leave” and “qualifying exigency leave.”

Under the new rules, the definition of “military caregiver” would be expanded from the traditional family member definition. In addition to immediate family members, an aunt, uncle, grandparent or first cousin of injured military personnel would be eligible to claim “military caregiver leave.” This leave would be available to employees for the care for a family member who has suffered a serious injury or illness in the line of active duty that has left them unable to perform military duties.

The new rules also would dramatically expand the available leave. These employees would be eligible for up to 26 weeks of protected, unpaid leave during a 12-month period to care for their loved one. It is important to note that the 26 weeks of leave offered here are not in addition to the 12 weeks of traditional FMLA leave available to employees. Any time claimed as traditional FMLA leave during the qualifying 12-month period must also be applied against the 26 weeks of military caregiver leave.

The regulations also make it clear that regardless of how the employer usually tracks a “calendar” year under FMLA, these 12 months begin the first day the employee takes leave. However, the 26 weeks can be taken as needed throughout the 12-month period and do not need to be taken consecutively. If an employee does not use all 26 weeks of leave entitlement during that 12-month period, the remaining leave is forfeited.

The new amendment also seeks to define “qualifying exigency leave” in order to clarify the situations in which these 12 weeks of leave would be available. Available only to the family members of National Guard or Reservists who have been called into active duty, there are eight specific events defined as “qualifying exigencies.” These are:

  • Short-notice deployment. This is to accommodate any issue that arises should the service member be given seven or fewer calendar days notice of deployment.
  • Attendance of military events and related activities. This includes events ranging from official ceremonies to family support programs.
  • Childcare and school activities. This includes arranging for alternative childcare, urgent childcare, enrollment in/transfer to a new school and attending school meetings.
  • Financial or legal appointments.
  • Counseling.
  • Rest and recuperation.
  • Post-deployment activities.
  • Any additional activities where the employer and employee agree the time qualifies as exigency leave, and also agree upon the timing and duration of the leave.