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Military family leave: DOL regs spell out employee rights

by on
in Employment Law,FMLA Guidelines,Human Resources

THE LAWOn Jan. 28, 2008, President Bush signed into law H.R. 4986, the National Defense Authorization Act of 2008 (NDAA), which granted new leave rights to family members of employees in the military.

Because the NDAA amended the FMLA, and not the Uniformed Services Employment and Reemployment Rights Act, it applies only to employers with 50 or more workers.

The amendment created a new qualifying reason for leave. Eligible employees may take up to 12 weeks of unpaid leave over a single 12-month period due to “any qualifying exigency” arising from the active military service or call to active duty of a spouse, child or parent.

What's new

In January 2009, the U.S. Department of Labor issued new FMLA regulations that incorporated the NDAA. The regulations, for the first time, defined what a “qualifying exigency” is under the law. The new regulations divide qualified exigencies into seven categories:

1. Short-notice deployment: When service members are given seven or fewer days’ notice to report for active duty, the affected employee may take up to seven days of leave to deal with “any issue arising” from the deployment.

2. Military events and related activities: Covered employees may take leave to “attend any official ceremony, program or event sponsored by the military and to attend family support and assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross” as long as it is related to the service member’s active duty or call to active duty.

3. Child care and school activities: Eligible employees may take leave to “arrange child care or attend certain school activities for a biological, adopted, or foster child, a stepchild or legal ward of the covered service member,” including any child for whom the service member stands in loco parentis. The child must be under 18, or if 18 or older, incapable of caring for himself or herself.

4. Financial and legal arrangements: Covered employees may take leave to attend to financial and legal arrangements related to the service member’s deployment, such as executing financial and health care powers of attorney and completing signature cards for bank accounts.

5. Counseling: Eligible employees may take leave for counseling for themselves, the service member or the service member’s dependent children. The counseling must be related to the service member’s deployment.

6. Rest and recuperation: Eligible employees may take up to five days to spend time with the service member while he or she is on short-term R&R leave.

7. Post-deployment activities: Eligible employees are entitled to take leave to “attend arrival ceremonies, reintegration briefings, and events, and any other official ceremony or program sponsored by the military for a period of 90 days following the termination of the covered military member’s active duty and to address issues that arise from the death of a covered service member while on active duty,” including funeral arrangements.

The regulations also allow employers to allow leave for “additional activities” where both the employer and employee agree on the timing and duration of the leave. The leave must be related to the service member’s active-duty assignment.

How to comply  

First, employers must display up-to-date posters explaining employee rights under the FMLA, USERRA and other federal laws. You must also amend your FMLA policies to include military leave.

Consult with an employment law attorney when changing FMLA policies. Ask whether the new policies conflict with existing policies or collective-bargaining agreements.

Note: This is just a summary of the new regulations. You and your attorney should read the pertinent parts of the new regulations in their entirety.

Tracking leave

The NDAA amendments affect leave tracking. Eligible employees are entitled to 26 weeks of leave to care for a covered service member recovering from a service-related injury or illness. This leave runs concurrently with FMLA leave. If you are using tracking software to monitor FMLA leave use, make sure it accounts for the NDAA changes.


Finally, once the new policy is in place and the leave properly tracked, it’s training time.

Managers and supervisors are usually the first to receive leave requests. They must know how to respond appropriately. Many FMLA lawsuits arise from a supervisor’s initial negative reaction to a leave request. Managers who don’t know about the new regulations may reject or refuse to pass along a legitimate leave request. Proper training can prevent a lot of litigation.

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