New FMLA regulations expand rights for military families
01-14-2009 - By Ann F. Kiernan, Esq.

The Department of Labor ("DOL") has just published new final regulations for the Family and Medical Leave Act ("FMLA"). This is the first significant update to the FMLA since its enactment in 1993. In addition to clarifying some existing provisions of the FMLA, the new rules also implement provisions of a statute passed last year. The new rules take effect on January 16, 2009.

There are now two additional leave entitlements under the FMLA: (1) military caregiver leave and (2) qualifying exigency leave. Military caregiver leave requires employers to provide up to 26 weeks of unpaid leave in a 12-month period to the spouse, son, daughter, parent or next of kin of a service member injured in the line of duty. Caregiver leave is available to families of Regular Army, Navy, Marine Corps, Air Force, and Coast Guard personnel, as well as National Guard and Reserves troops. During the 12-month period, caregiver leave is combined with regular FMLA leave and the total cannot exceed 26 weeks.

The 2008 law also allows an employee who has a spouse, son, daughter, or parent in the National Guard or Reserves to take some or all of the regular 12 weeks of unpaid FMLA leave in 12 month period due to a "qualifying exigency" resulting from the family member's active military duty (or call to active duty status) in support of a federal contingency operation. This does not include State call-ups to active duty.

What's a qualifying exigency? The new rules define them as

1. Short-notice deployment - to address any issues that arise due to the fact that service member received a week's notice or less of the deployment;
2. Military events and related activities - to attend any official ceremony, program, or event related to the service member's active duty; or to attend family support or assistance programs and informational briefings sponsored by the military;
3. Child care and school activities - to arrange for alternative childcare; to provide childcare on an urgent or immediate basis; to enroll or transfer a child to a new school; and to attend meetings with school staff that are made necessary by the service member's active duty or call to active duty;
4. Financial and legal arrangements - to make or update financial or legal arrangements; and to act as the service member's representative in obtaining, arranging or appealing military benefits;
5. Counseling - to attend counseling sessions related to the service member's deployment or active duty status;
6. Rest and recuperation - to spend up to five days with a service member who is on short-term R&R leave;
7. Post-deployment activities - to attend ceremonies and reintegration briefings for a period of ninety days following the termination of the service member's active duty status; and to address issues arising from the death of a service member; and
8. Any other activities that the employer and employee agree qualify as an exigency.

What this means to you: HR pros should review the new regulations in detail and be sure to update their organization's employee handbooks and postings to include the new FMLA provisions, including the new forms. Managers should be trained about how to apply company policy and the law. Call us at 1-800-458-0500 and ask for our Managing Within the Law II class.

 

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.