On Jan. 28, 2008, President Bush signed into law the first expansion of the Family Medical Leave Act (FMLA) since its enactment in 1993. The National Defense Authorization Act (H.R. 4986) concerns injured members of the armed forces and provides leave for military families. Section 585 of the bill creates FMLA-qualifying events for eligible members of military families and applies to service members in both Reserve and National Guard duty as well. Even though the Department of Labor has not finalized regulatory guidance for employers under the new Act, eligible employers should be prepared to comply fully with the law's intent.

FMLA eligibility

The FMLA eligibility requirements for employers and employees remain unchanged. If you are an employer covered by the FMLA (generally having 50 or more employees), the new amendments apply to you. For an employee to be eligible to receive leave under the new amendments, the employee must have been employed for 12 months and worked 1,250 or more hours. The employee must work at a site with 50 or more employees or within 75 miles of that location, the same requirements for eligibility for any FMLA leave.

Caregiver leave

The first FMLA amendment, effective immediately, provides up to 26 weeks of leave during a 12-month period for spouses, parents, children, or next of kin (defined as “nearest blood relative”), to care for recovering military service personnel who develop a serious injury or illness while serving in the armed forces.

  • When does it apply?

    This caregiver leave applies when the service member develops an injury or illness in the line of duty while on active duty in the armed forces “that may render the member medically unfit to perform the duties of the member's office, grade, rank, or rating.” While the Department of Labor is still developing more specific guidance, employers should respond in good faith to requests for this type of leave and should follow the FMLA regulations and requirements when granting such leave.

  • How often can an employee use this leave?

    An employee may take up to 26 weeks of military FMLA leave once during a 12-month period. The employee is entitled to a maximum of 26 weeks of leave. This means that, while an employee may also take 12 weeks of leave for a reason other than military care leave, the total amount that the employee may take (of both military and other FMLA leave) is 26 weeks.

“Call to Active Duty” leave

The second FMLA amendment provides leave to spouses, parents, or children of service members who are on active duty or have been notified of an impending call or order to active duty in the armed forces. Leave may be used for “any qualifying exigency” arising out of active duty or when the service member has been notified of an impending call or order to active duty “in the Armed Forces in support of a contingency operation.”

An employer may require that a request for leave under this section “be supported by a certification issued at such time and in such manner as the Secretary may by regulation prescribe.” This “Call to Active Duty” provision will not be effective until the secretary of labor issues final regulations defining “any qualifying exigency.”

If this new law impacts you or your business and you would like to speak to our Employment Law group to ensure that you are in compliance, and that your employee handbooks and policies are current, please e-mail Amy Pannoni (amypannoni@dwt.com) or Courtney Mertes (courtneymertes@dwt.com).