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 Recent FMLA Amendment Provides Two New Types of Leave to Eligible Employees Who Are
 Family Members of Military Personnel
Please Note: What follows is a very brief overview of the recent amendment to the FMLA. For more complete information, you should contact the DOL or employment counsel.
In late January 2008, President Bush signed into law an amendment to the Family and Medical Leave Act (the “FMLA? that provides two new types of leave to family members of military personnel. Specifically, the amendment expands the leaves available to military families under the FMLA by: (1) allowing eligible employees to take up to 12 weeks of leave for a “qualifying exigency?if an employee’s spouse, child or parent is called to active military service (“Call to Duty Leave?; and (2) allowing eligible employees to take up to 26 weeks of leave to care for a family member who is wounded while on active military duty (“Service Member Family Leave?. These are in addition to other FMLA-qualifying leaves, although time taken for any qualified leave is cumulative.
The Department of Labor has not yet promulgated, but is working on, regulations to provide guidance about the types of situations in which Call to Duty Leave will be available, but such leave likely will be available to allow eligible employees to take time off to arrange for childcare and to address other situations that arise as a result of the armed service member’s departure for active duty. These leaves may be taken on an intermittent basis. The portion of the amendment providing for Call to Duty Leave is not yet effective, although employers are encouraged to consider making unpaid time off available for members of military families who need to address exigencies created by a call to active duty.
The portion of the amendment providing for Service Member Family Leave went into effect immediately. Employees may use this leave to care for a covered service member while he or she is undergoing medical treatment, recuperation or therapy for a serious illness or injury incurred while on active military duty. The maximum leave an eligible employee will be permitted to take for this type of leave during a 12-month period is 26 weeks, and employers may require certification from the covered service member’s healthcare provider as a condition of granting the leave. Employees also may take this leave intermittently.
Eligibility requirements for these new types of leave are the same as for other FMLA leaves, which means that an employee must work for an employer covered by the FMLA in a qualified location, have completed 12 months of service and have worked 1250 actual hours in the 12 months preceding the leave. Employers should contact their employment counsel for more information about these new leaves and for assistance calculating leave entitlements, as use of any type of FMLA leave in a 12-month period is cumulative. Employers can obtain temporary postings and more information about the amendments at the Department of Labor’s FMLA Compliance Assistance Website: www.dol.gov/esa/whd/fmla/
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