FMLA Expanded to Provide Protected Leave for Military Families
On January 28, 2008, the Family and Medical Leave Act (“FMLA”) was expanded in order
to provide protected FMLA leave for employees: (1) who have a qualifying exigency due
to a family member’s active duty service or call to active duty service, and (2) who need
leave in order to care for family members wounded during military service (Military
Caregiver Leave). The FMLA applies to employers with 50 or more employees.
Qualifying Exigency/Active Duty Leave
Employers must provide up to 12 weeks of FMLA leave for “any qualifying exigency”
resulting from the fact that a spouse, child, or parent is on active duty, or notified of any
impending call to active duty, in the Armed Forces in support of a military operation or
national emergency. The Secretary of the United States Department of Labor will issue
regulations defining what “qualifying exigency” means. In the interim, employers are
encouraged to provide this kind of leave and to contact legal counsel when you have
Military Caregiver Leave
Immediate family members (spouses, parents and children) as well as next of kin (nearest
living blood relative) of a servicemember who suffers a serious injury or illness while in
military service are entitled to take up to 26 weeks of FMLA leave to care for that
servicemember during a 12-month period. The expanded leave to care for injured
servicemembers is only available during a single 12-month period.
DOL Issues Proposed FMLA Regulations
Following comprehensive study of FMLA administration, the DOL has issued proposed
FMLA regulations that, if enacted, will change a number of current rules. The proposed
rules address what constitutes a serious health condition, intermittent leave, notice
requirements, bonuses, substitution of paid leave and other issues. The proposed rules
are not in effect. However, it is widely anticipated that the DOL will issue final rules
following full consideration of comments on the proposed rules.
1. Make a good faith attempt to comply with the law providing leave for a
2. Immediately comply with the requirements for Military Caregiver Leave.
3. Amend your FMLA policy to provide that the company will provide up
to 26 weeks of leave to care for a family member whose injury or
illness was incurred in the line of duty on active duty in the Armed
Forces, National Guard or Reserves.
4. Consider posting the optional poster insert provided by the DOL where
notices for employees are customarily placed. You may obtain the
insert at //www.dol.gov/esa/whd/fmla/NDAAAmndmnts.pdf.
Labor and Employment Practice Group
HARRANG LONG GARY RUDNICK P.C.
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Our firm’s Employment Alerts are intended to provide general information regarding recent
changes and developments in the labor and employment area. These publications do not
constitute legal advice, and the reader should consult legal counsel to determine how this
information may apply to any specific situation.