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Military Leave

Release Date: January 22, 2009

As the FMLA was only recently amended in early 2008, to add the military leave provisions, the new regulations are the first opportunity by the Department of Labor to clarify those amendments.

The military leave amendments provide that an employee is eligible for up to 12 weeks of FMLA leave becauseof a “qualifying exigency” arising out of the fact that the employee’s spouse, son, daughter or parent is on active duty (or has been notified of an impending call to active duty).

The new regulations now define what is meant by a “qualifying exigency”. Since the 2008 amendment did not define “qualifying exigency”, that portion of the amendment did not take effect until the Department of Labor issued these regulations, setting forth that definition. Accordingly, the military leave amendments providing leave for a “qualifying exigency” will take effect on January 16, 2009 with the rest of the new regulations.

The new regulations set forth the following list of what is a “qualifying exigency”: (a.) short-notice deployment, (b.) military events and related activities, (c.) childcare and school activities, (d.) financial and legal arrangements, (e.) counseling, (f.) rest and recuperation, (g.) post-deployment activities and (h.) additional activities as agreed upon by employer and employee.

“Qualifying exigency” leave only applies to national guard, reserves and retired military—it does not apply to general armed forces. The new regulations do clarify that some certification procedures are specific to military leave—such as the need to provide active duty papers for the first instance of leave and documentation of the specific need for leave.

The new regulations also address military caregiver leave. Military caregiver leave allows an employee who is a spouse, son, daughter parent or next of kin of a “covered servicemember” who incurs a serious illness or injury in the line of active duty to take up to 26 weeks of FMLA leave to care for the covered servicemember. The amendment also provided expanded definitions for the terms “spouse”, “son”, “daughter” and “next of kin.”

Unlike “qualifying exigency” leave, military caregiver leave applies to regular armed forces plus guard and reserve—but the covered servicemember must be currently active.

The leave period under the covered servicemember leave amendments are also substantially different than traditional FMLA leave. An employee is entitled to 26 weeks of covered servicemember leave during a single 12 month period. The 26 weeks are counted based on a set 12 month period, and the employee is entitled to 26 weeks of leave in each 12 months. Unlike the traditional leave provisions, the new regulations clarify that the 26 weeks is per servicemember and per event.

The new regulations also clarify how the military leave provisions work in connection with an employee’s right to traditional FMLA leave. When an employee seeks to take traditional FMLA leave and military leave—the total leave cannot exceed 26 weeks in a 12 month period. However since the “12 month period” for purposes of traditional FMLA leave is a recurring 12 months, and the “12 month period” for military leave is a set 12 months, the set 12 month period must be used in calculating the employees entitlement to 26 weeks of total leave. For example if an employee is the father of a covered servicemember and his son suffers a serious injury while in the line of duty, resulting in the employee taking leave beginning on March 1, 2008 for a total of 23 weeks. If that same employee requests FMLA leave as a result of his own serious injury beginning February 1, 2009, that employee is only entitled to 3 weeks of FMLA leave during February.

The new regulations also provide new certification forms for qualifying exigency leave and military caregiver leave. The certifications must be completed by an authorized health care provider who can certify that the injury occurred in the line of duty.

Except for minor specified variations—the general FMLA provisions in the new regulations apply to military leave, such as notice requirements and substitution of paid leave.