2009 Service Member Families Amendments to FMLA

Due to a recent amendment to the federal Family Medical Leave Act, certain relatives of service members on active duty with the United States military now have increased FMLA protected leave rights to deal with issues related to the deployment and care of service members. As of October 2009, certain provisions of the National Defense Authorization Act for Fiscal Year 2010, have come into effect and provided increased FMLA leave rights for certain family members of military services members, such leave in some cases being for up to 26 weeks per year.

As an initial matter it should be noted that the expanded service member family leave provisions only expand upon the right to take FMLA leave of employees already covered by FMLA. None of the new provisions apply to employees who are not otherwise already covered under FMLA. Additionally, leave taken pursuant to the deployment of service member provision of FMLA is cumulative with other FMLA leave, and the new provisions do not provide additional leave time.

The first significant change made to FMLA last year was the expansion of the right of certain military family members to take FMLA leave when a service member is called to active duty. Prior to the recent amendment, only the FMLA covered family members of reserve or National Guard members could take FMLA leave in connection with the deployment of the service member. Now, FLMA covered family members of all military personnel, active, reserve and Guard, are eligible to take FMLA leave in relation to the deployment of the service member.

Pursuant to the amended FMLA provision, FMLA eligible employees are permitted to take leave "while the employee's spouse, son, daughter or parent is on active duty or called to active duty status" which results in "qualifying exigencies". ¹ Under federal Department of Labor regulations made regarding the service member FMLA leave provision, a covered employee may take leave of up to seven calendar days "to address issues that arise from the fact that a covered military member is notified of an impending call or order to active duty."² Other qualifying exigencies include covered employees attending military events and activities related to pre- and post-deployment ceremonies and family support programs. Covered employees are also allowed to take FMLA leave to provide "childcare on an urgent, immediate need basis (but not on a routine, regular everyday basis)" when the need for such care arises from the active duty status of a service member for a biological, adopted, or foster child, stepchild or a legal ward" of such service member. ³ Furthermore, covered employees are permitted to take FMLA leave to spend time with active duty service members who are on short-term, temporary, rest and recuperation leave during a period of deployment, however such leave is limited to five days for each instance of leave.⁴

In addition to providing expanded FMLA rights for covered employees who are related to deployed members of the United States military, the recent changes have also provided for an expanded leave right for covered employees to care for a seriously ill or injured service member if the employee is the "spouse, son, daughter, parent, or next of kin of the service member."⁵ Pursuant to the recent amendments to FMLA, a covered employee taking leave under this provision is entitled up to 26 work weeks of leave during a single twelve month period.

In addition to providing a greater extended leave period to care for injured service members, the recent amendment also expands the right to such leave to the "next of kin" of the seriously injured service member. This is the first time that FMLA reaches to the next of kin, which FMLA has defined as "the nearest blood relative, other than the covered service member's spouse, parent, son, or daughter, in the following order of priority: blood relatives who have been granted legal custody of the service member by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the covered service member has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under the FMLA."⁶ This is a major expansion of employees eligible for FMLA leave, as it can cover relatives not typically covered by FMLA provisions such as aunts, uncles, and cousins.

As these changes to FMLA are fairly recent, the Department of Labor is still tweaking the rules and regulations used in applying leave related to the deployment and care of service members. Therefore, if you have any questions regarding the application of these new provisions, please contact FDW so we can assist you in insuring your full and complete compliance with the requirements of the Family Medical Leave Act.

Disclaimer: This article is designed to provide general information only. The information presented here is not intended to constitute formal legal advice nor is the provision of the same meant to result in the formation of a lawyer/client relationship.

(1) 29 C.F.R. § 825.126(a)

(2) 29 C.F.R. § 825.126(a)

(3) 29 C.F.R. § 825.126(a)(3)(ii)

(4) 29 C.F.R. § 825.126(a)(3)(ii)

(4) 29 C.F.R. § 825.112(a)(6)

(4) 29 C.F.R. § 825.127(b)(3)