February 6, 2008

FMLA Brings Benefits to Military Families

On January 28, 2008, President Bush signed a law (National Defense Authorization Act for FY 2008, Public Law 110-181) that, in part, broadens the benefits available under the Family Medical Leave Act (FMLA) specifically for employees who have family members called or ordered to active military service. 

Military Exigency Leave

The new FMLA amendment provides up to 12 weeks of leave in a 12-month period for an employee whose spouse, parent, or child is serving in the Armed Forces, including a member of the National Guard or Reserves, and is called to active duty for exigencies deriving from the military leave.  The term, exigency, is not defined in the law.  The Department of Labor, who enforces the provisions of the FMLA, has been directed to issue regulations that would define ‘qualifying exigencies’.  According to Dictionary.com, an exigency is synonymous with ‘crisis’, and refers to:

  1. The quality or state of requiring immediate aid or action; urgency.
  2. A case demanding immediate action or remedy; a pressing or urgent situation.
  3. That which is demanded or required in a particular situation.

Until explanatory regulations are issued, employers will have to use a good faith effort to determine under what conditions this 12-week exigency leave will be available. 

Notice of Leave

The employee is required to give as much notice of the exigency leave to the employer as is reasonable and practicable.

Caregiver Leave

The new FMLA amendment also offers up to 26 weeks of leave to care for a servicemember who is:

  • Injured in the line of duty, and undergoing medical treatment recuperation or therapy as an outpatient; or
  • Otherwise on the temporary disability retired list for a serious injury or illness.

It is important to note that the employer cannot use the “serious health condition” definition found in the current FMLA law and regulations; rather, it must use the definition found in the new FMLA amendment:

The term `serious injury or illness', in the case of a member of the Armed Forces, including a member of the National Guard or Reserves, means an injury or illness incurred by the member in line of duty 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.'

It also important to note that “next of kin” is added to the list of spouse, parent, or child on whose behalf the leave can be taken.  Next of kin is defined as the individual’s nearest blood relative.

Availability and Amount of Leave

Unlike the 12 weeks of leave in a 12-month period generally available under the FMLA, and including the leave for military exigencies leave, the 26-week caregiver leave is only available once in an employee’s lifetime. 

The maximum leave required to be made available in a 12-month period is 26 weeks.  This 26-week period may be comprised of traditional family leave, service-related exigency leave, and service-related caregiver leave.

Rights and Benefits

Both the exigency leave and caregiver leave are subject to all of the other terms and conditions of the FMLA, including the guaranteed return to same or equivalent position, the continuation of health benefits, and the ability to use available paid time off, as well as the right to take leave on an intermittent or reduced schedule. 

Effective Date

This FMLA amendment became effective immediately upon signature.  The DOL has indicated that the requirement to provide leave in the event of military exigency will not become effective until regulations are issued.  However, the DOL is encouraging employers to begin offering this type of leave immediately.  The caregiver leave became effective January 28, 2008.

More FMLA Clarifications

All indications are that the DOL is also working on other FMLA clarifications.  There is little indication as to the focus of these regulations; although, one can surmise that, in part, the DOL will address how the leave must be requested, and when and under what circumstances an employer is required to offer intermittent or reduced schedule leave.

What Should An Employer Do?

  • An employer should immediately familiarize itself with the new provisions of the law.
  • Review existing FMLA policies and make appropriate modifications to accommodate the two new forms of leave.
  • Determine what kinds of certification will be required for the leave.
  • Make a good faith effort to determine how the term, exigency, will be defined; thus, giving rise to leave entitlement.


The information contained in this Benefit Beat is not intended to be legal, accounting, or other professional advice, nor are these comments directed to specific situations.

As required by U.S. Treasury rules, we inform you that, unless expressly stated otherwise, any U.S. federal tax advice contained in this Benefit Beat is not intended or written to be used, and cannot be used, by any person for the purpose of avoiding any penalties that may be imposed by the Internal Revenue Service.

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