Preventive Law for Employers
Federal Employment Law

New FMLA rules now in effect

In 2008 the FMLA got its first significant update since its enactment in 1993. There are now provides 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 that single 12-month period, caregiver leave is combined with regular FMLA leave and the total cannot exceed 26 weeks. Caregiver leave, like traditional FMLA, can be taken on an intermittent or reduced schedule basis, as medically necessary.

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) 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.

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