New FMLA Regulations Affecting Military Families

The U.S. Department of Labor (“DOL”) has issued new regulations interpreting the Family and Medical Leave Act (“FMLA”) for military families which went into effect January 16, 2009.

Exigency Leave:  Employees may take up to 12 weeks for qualifying exigency leave arising from an employee’s spouse, child or parent being called up to active duty from a non-regular armed forces position, such as members of the Reserves or National Guard .

Exigency leave is not available to family members of active duty military personnel. The new form for this type of leave (WH-384) can be found at the DOL website  http://www.dol.gov/esa/whd/fmla/finalrule.htm.

Leave Related to Serious Injuries or Illnesses Incurred in Military Duty:  Military Caregiver Leave provides for 26 work weeks of leave in a single 12-month period. This means that the 26 weeks of leave must be taken in a single year starting the first day leave is taken for those employees caring for family members and next of kin with serious injuries or illnesses incurred in military duty.

The definition of “next of kin” is broader than that of “family members” under FMLA and may include grandparents, aunts and uncles.

Unlike FMLA leave, an employer may not request additional medical opinions or re-certifications for Military Caregiver Leave.

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