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FMLA: Military Family Leave

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in FMLA Guidelines,Human Resources

The National Defense Authorization Act of 2008 (NDAA) granted new leave rights to family members of men and women who serve in the military. Because the NDAA amended the FMLA, the changes apply only to employers with 50 or more employees. 

The law creates a new qualifying reason for leave. Eligible employees may take up to 12 weeks of unpaid leave over a single 12-month period for “any qualifying exigency” arising from the active military service or call to service of a spouse, child or parent. The provision is intended to help employees meet family needs that arise as service members prepare for or return from deployment.

“Qualifying exigencies” include:

  • Short-notice deployment
  • Military events and related activities
  • Child care and school activities
  • Financial and legal arrangements
  • Counseling
  • Rest and recuperation
  • Post-deployment activities
  • Additional activities for which the employer and employee agree to the leave.

In addition, the NDAA more than doubles the amount of leave available to care for a family member injured in the line of duty. A spouse, parent, child or next of kin may take up to 26 weeks of unpaid leave to care for a covered service member recovering from a service-related injury or illness.

Important: To be covered, the illness or injury must have occurred in the last five years and while the individual was on active military duty. (The only exception is for injuries that result from the service member’s misconduct.) Under this definition, a soldier who is injured in a car accident or diagnosed with cancer while on active duty is eligible for the coverage.

All military family leave runs concurrently with existing FMLA leave, not in addition to it. During a 12-month FMLA period, an eligible employee is entitled to a maximum of 26 workweeks of leave if the leave includes time to care for a covered service member. For example, a qualified employee who takes 12 weeks of nonmilitary-related FMLA leave may take up to an additional 14 weeks of military family leave, for a combined total of 26 weeks. The leave may be taken intermittently or on a reduced leave schedule.

Employees may elect, or employers may require, the use of the employee’s accrued paid vacation leave, personal leave, sick leave or medical leave for any part of the 26-week period. The NDAA does not require employers to provide any additional paid leave.

As with ordinary FMLA leave, employers may request documents to support the need for leave, such as certification from the service member’s health care provider.

Note: Some states have passed family military leave laws that may grant additional rights beyond the federal NDAA. California, Connecticut, Illinois, Indiana, Maine, Maryland, Minnesota, Nebraska, New York, Oregon and Washington have passed legislation granting unpaid family military leave.

For the full amendment and additional information, visit www.dol.gov/whd/fmla/2013rule. The DOL also publishes “Special FMLA Rules for Returning Reservists (USERRA)”.

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