This week the Family and Medical Leave Act (FMLA) was amended to expand its leave benefits for families of military service members. Accordingly, employers should revise their FMLA policies and procedures to account for this expansion of the leave benefits.

Originally, the FMLA provided a covered employee up to 12 weeks of unpaid, job-protected leave in a 12-month period in certain circumstances, such as the birth or adoption of a child; care for a sick child, parent, or spouse; or when the employee has a serious illness.

Two New Types of FMLA Leave

The recent amendments create two new circumstances under which employees with family members in the armed services are entitled to FMLA leave. The new benefits are:

(1) up to 12 weeks of leave for a “qualifying exigency” arising out of the employee’s spouse, son, daughter, or parent being on active duty or being called up to active duty; and

(2) up to 26 weeks of leave for an employee to care for a “covered servicemember” injured while on active duty.

Family Leave Due to a Call to Active Duty

To take leave for a “qualifying exigency,” the employee must have the close familial relationship with the service member of spouse, son, daughter or parent. Unfortunately, the legislature failed to define “qualifying exigency,” one of the key terms of the amendment; rather, the Secretary of Labor is tasked with drafting regulations defining that term.

Those regulations are being given priority by the Department of Labor but they have not yet been issued. When issued, they will have significant implications on the reach of this amendment. For example, does the “qualifying exigency” require a “serious medical condition” as with other FMLA leaves?

When an employee requests leave based on this “qualifying exigency,” and the need for the leave is foreseeable, the employee must provide the employer with “reasonable and practicable” notice. Also, an employer may require the employee to provide certification that the service member is on active duty or has been called to active duty.

Caregiver Leave for an Injured “Servicemember”

When an employee requests leave to care for an injured service member, the necessary familial relationship is broader than with traditional FMLA leave. In addition to spouse, child or parent, an employee may take this type of leave if the employee is the “next of kin,” defined as the nearest blood relative, of the injured service member.

The term “covered servicemember” means a member of the Armed Forces, including the National Guard or Reserves, who is “undergoing medical treatment, recuperation, or therapy, is otherwise in an outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.”

The term “serious injury or illness” is defined as a condition that may render the service member “medically unfit to perform the duties of the member’s office, grade, rank, or rating.”

Leave sought to care for an injured service member is available only during a single 12-month period.

Limit of 26 Weeks in the Aggregate

An employee is limited to, at most, a total of 26 weeks of protected leave taken in any 12-month period for any combination of FMLA leave. Thus, for example, an employee seeking leave to care for an injured service member, after taking 12 weeks of leave for birth of a child, would have a maximum of 14 additional weeks available for protected caregiver leave in the 12-month period. During the leave, covered employees are also entitled to other FMLA benefits, including continued healthcare coverage and job restoration.

Employers Need to Re-Visit FMLA Policies

These amendments are the first expansion of the FMLA since its enactment in 1993. The amendments, contained in the National Defense Authorization Act of 2008, are effective immediately. However, it is unclear whether or how the Department of Labor will seek to enforce the rights of employees regarding leave based on “qualifying exigency” before that term has been defined.

Employers should familiarize themselves quickly with these two new types of FMLA leave. Employers should also re-visit their FMLA policies to ensure compliance with the new provisions and be alert for any Department of Labor guidance on the amendments. In the meantime, however, employers are nonetheless obligated to comply with the new amendments. We will keep you posted as to any further developments with this new amendment or any forthcoming regulations.