Expanded Leave Rights for Families of Military Service Members


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Robinson Bradshaw Publication
Jan. 15, 2009

Last year, Congress amended the Family and Medical Leave Act to provide new leave benefits for employees with family members serving in the military. On Jan. 16, 2009, the DOL's new regulations interpreting those military leave provisions become effective.

These amendments extend FMLA leave provisions in two situations connected with military service. The first provides eligible employees with up to 26 weeks of leave to care for a family member who is injured in military service. The second grants eligible employees up to 12 weeks of leave for "any qualifying exigency" resulting from a family member's active duty in the National Guard or Reserves.

Leave to Care for an Injured Service Member

The amendments to the FMLA allow for an extended period of leave for an employee in order to care for family members who are injured in the line of military duty. Specifically, the amendments permit a "spouse, son, daughter, parent, or next of kin" to take up to 26 weeks of combined leave to care for a "covered servicemember." Section 102(a)(3). For this leave alone, the leave year is based on a single 12-month period and begins with the first day the employee takes leave. This leave is combined with all other FMLA leaves, limiting FMLA leave for all purposes to no more than a total of 26 weeks of leave during a 12-month period.

Under this new leave provision, a "covered service member" is a member of the Armed Forces, including a member of the National Guard or Reserves, who is "undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on a temporary disability retired list, for a serious injury or illness." Section 101(16). Thus, unlike other FMLA leave covering "serious medical conditions," this new military leave provision includes "recuperation" unrelated to further medical treatment and refers to the internal military designation of the "temporary disability retired list."

This new military leave provision applies to employees who are the "next of kin" of a covered service member, not merely the service member's spouse, parent or child. "Next of kin" is defined as the nearest blood relative of a service member. Section 101(18). Under this provision, brothers, sisters, cousins, uncles or aunts, or grandparents under certain circumstances could qualify for FMLA leave to care for a service member. This "next of kin" coverage, however, is limited to those employees caring for a seriously injured service member and does not modify any other provisions of the FMLA.

The amendments also allow employers to require that employees seeking leave under this new provision provide certification from the service member's health care provider. A separate certification form, titled "Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave" (Form WH-385), is available for employers to use.

Leave Due to Active Duty of a Family Member

Effective Jan. 16, 2009, the amendments to the FMLA also guarantee eligible employees up to 12 weeks of leave for "any qualifying exigency" arising out of the fact that the employee's spouse, or a son, daughter or parent, is on active duty (or has been notified of an impending call to active duty) in the National Guard or Reserves in support of a "contingency operation." Section 102(a)(1)(E). Congress passed this amendment to provide members of the National Guard or Reserves who have been called up to active duty and their families with a support system to enable them to get their affairs in order prior and subsequent to active duty.

Under the rules, a "qualifying exigency" includes: (1) short-notice deployment, defined as a call/order to active duty seven days prior to the date of deployment (and limited to seven calendar days of leave beginning on the date the military member is notified of deployment); (2) military events and activities related to call to active duty; (3) providing child care and attending school activities; (4) making financial and legal arrangements; (5) counseling; (6) rest and recuperation (limited to five days per leave, up to 12 weeks in a 12-month period, to spend with military members on short-term leave); (7) post-deployment activities for up to 90 days following termination of active duty status; and (8) additional activities as agreed to by both employer and employee.

The leave provided under this amendment is counted along with any other standard FMLA leave in calculating the employee's 12-week statutory leave entitlement. Employees must give notice of the need for such leave to the employer as soon as is "reasonable and practicable." A separate certification form, titled "Certification for Qualifying Exigency for Military Family Leave" (Form WH-384), is available for employers.

The Employer's Responsibilities

The DOL has updated Fact Sheet #28 to include reference to these amendments and has provided a separate Fact Sheet #28A that is specific to the military family leave entitlements of the FMLA.

Employers should revise their family and medical leave policies and forms to reflect the new military leave requirements. Attorneys at Robinson Bradshaw are available to assist in updating your policies or forms to ensure compliance with the new rules and regulations. Please contact a member of our Employment and Labor Practice Group for more information.

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