Effective January 28, 2008, the Family and Medical Leave Act (FMLA) was amended to provide protected leave for employees who need time off to handle “exigencies” related to an immediate family member’s military service or call-up for service, and to care for a family member who is injured during military service.

Who is entitled to this leave?

  • Only employees who are otherwise covered by the FMLA.

When and how much leave can be taken?

  • Active Duty Leave. An employee whose spouse, child or parent has been called to active duty or is already on active duty is entitled to take up to 12 workweeks of leave during any 12-month period because of a “qualifying exigency.” Incredibly, the term “qualifying exigency” is not defi ned in the law, and awaits regulatory defi nition by the Secretary of Labor. However, it is likely that an “exigency” will include time needed to assist the serviceperson to get ready for duty or to care for his/her child. It remains to be seen whether it will allow an employee to take time off while a serviceperson is on furlough. An employee must provide reasonable notice to the employer of a foreseeable leave. The law requires certifi cation in support of the leave, but the details are left to the Secretary of Labor to decide.
  • Caregiver Leave. An employee whose spouse, child, parent or “next of kin” is injured while on active military duty can take up to 26 workweeks of leave during a single 12-month period to care for him or her. The maximum amount of FMLA time an employee may take for any combination of FMLA-qualifying reasons during a 12-month period is 26 weeks. Although not clear, it appears that an employee may split the 26 weeks to care for multiple family members, so long as the maximum amount of leave does not exceed 26 weeks in a 12-month period. The existing healthcare certifi cation rules apply to this type of leave.

Can intermittent leave be taken?

  • Yes, for both types of leave.

Is the leave paid or unpaid?

  • Unpaid. However, the same rules now applicable to substitution of paid leave apply to these leaves.

What should employers do now?

  • Until the regulations are issued, employers have been advised by the Department of Labor to “act in good faith” in providing leave under the new amendments. Employee requests for time off related to a family member’s military service should be handled with caution. Once the regulations are announced, employers should be prepared to revise their FMLA policies and forms to include these new types of protected leave.

The text of the new amendments can be found at http://www.dol.gov/esa/whd/fmla/fmlaAmended.htm.