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FMLA Leave for Military Families
At the beginning of the year, the Family and Medical Leave Act was amended to to permit an eligible employee who is a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks of leave to care for a “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.” This provision was made effective immediately.

As with other types of FMLA leave, an employee is eligible for leave only if he or she as 12 months of service, and 1250 hours of actual work in the last 12 months. Employers may require certification of the member’s health condition.

Another part of the amendment requires employers to grant leave because of any “qualifying exigency” arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation. This provision will not take effect until the Secretary of Labor promulgates regulations identifying what constitutes a qualifying exigency.

The Department of Labor has included a discussion of planned regulations to implement the military family provisions in the proposed overhaul to the existing FMLA regulations published in the Federal Register on February 11, 2008. You can read the entire proposal here. Comments were due by April 11, 2008. Final regulations implementing the military family leave provisions can be expected by the end of the year.

Until the regulations are in effect, the Department of Labor “encourages” employers to provide leave for exigencies created by a call up. Here are some of the comments from the deliberations leading to the enactment of the amendment, which may provide guidance about the circumstances that would qualify for leave:
“The wife of a recently deployed military servicemember could use the Family and Medical Leave Act to arrange for childcare. The husband of a servicemember could use the Family Medical Leave Act to attend predeployment briefings and family support sessions. The parents of a deployed servicemember could take Family Medical Leave Act time to see their raised child off or welcome them back home.” [Rep. Jason Altmire]

“For every soldier who is deployed overseas, there is a family back home faced with new and challenging hardships. The toll extends beyond emotional stress. From raising a child to managing household finances to day-to-day events, families have to find the time and resources to deal with the absence of a loved one.” [Rep. Tom Udall]

“Under this amendment family members can use the leave to take care of issues like making legal and financial arrangements and making child care arrangements or other family obligations
that arise and double when family members are on active duty deployments. … These deployments and extended tours are not easy on families, and two-parent households can suddenly become a single-parent household and one parent is left alone to deal with paying the bills, going to the bank, picking up the kids from school, watching the kids, providing emotional support to the rest of the family. You have got to deal with these predeployment preparations.” [Rep. George Miller]