By Gayle Hamilton, J.D.,

The United States Department of Labor (DOL) has published its new version of the Family and Medical Leave Act (FMLA) regulations, which go into effect on January 16, 2009. The most significant changes to the new FMLA regulations are based on two new categories of leave found in the National Defense Authorization Act (NDAA), which was signed into law on January 28, 2008 by President George Bush. The final FMLA regulations clarify and interpret various parts of the Act and put into operation two new military leave entitlements. This article will focus on those new FMLA entitlements for the family members of military service men and woman and will briefly address the rights provided to service members under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) and its interaction with the FMLA. Hopefully, this article will clarify some of the laws enacted to assist our military personnel and their families when dealing with the responsibilities of family, work, and military service.

Basics of FMLA:
Pre -Amendment
The Family and Medical Leave Act was signed into law by President Bill Clinton in 1993 after eight years of debate, thirteen congressional votes and two presidential vetoes (President Bush, Sr.). FMLA allows eligible employees to take up to 12weeks of unpaid leave each year for the birth or adoption of a child, or when dealing with your own medical condition or that of a family member. These basic provisions remain unchanged however, two new categories in order to qualify for leave have been added and will be discussed later.

No Change in Eligibility Requirements FMLA requires that an employee work for an eligible employer. Eligible employers include all public sector employers (State, county and city police officers) and private sector employers that employ at least fifty employees within a 75-mile radius. Second, the employee must have at least 12-months of service with the employer and finally, the employee must have at least 1250 hours of work with the employer in the 12-months preceding their leave request.

Amendment to FMLA:
Two Types of Military
Family Leaves
The first major revision of the Family and Medical Leave Act, (FMLA) since its enactment in 1993 occurred on January 28, 2008 when President Bush signed into law the National Defense Authorization Act (NDAA) which created two new categories of FMLA leave for a qualifying employee/relative of military personnel: (1) “military caregiver leave” and (2) “qualifying exigency.”

a. Military Caregiver Leave
The military caregiver leave went into effect immediately (January 28, 2008) and allows twice the normal leave benefit granted under FMLA (26-weeks versus 12-weeks). Under this new provision, an eligible employee is the “spouse, son, daughter, parent or next of kin of a covered service member” and is entitled to up to 26-weeks of unpaid leave to care for the ill or injured service member who is undergoing medical treatment, recuperation or therapy, or is otherwise in outpatient status, or is on the temporary disability retired list, for a “serious injury or illness” sustained during active duty in the Armed Forces. Several changes are noteworthy under the military caregiver leave. Based on this new provision, a “covered service member” includes any member of the Armed Forces. Additionally, this leave is available to care for a son or daughter who is a service member of any age. Finally, “next of kin” is the nearest blood relative, and has been extended outside of the parent, spouse, son or daughter.

b. Qualifying Exigency Leave
Also under the NDAA, FMLA has been expanded to include a new qualifying reason for leave called “qualifying exigency” which is restricted to family members of the National Guard, Reserves and to employees with family who are retired military service members called to active duty. Similar to the other qualifying reasons for FMLA leave, an eligible employee shall be entitled to a total of 12-weeks of leave during an 12-month period for any “qualifying exigency” arising out of the fact that the spouse, 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. Qualifying exigency leave is part of, not in addition to, the 12-weeks of FMLA leave that an eligible employee may take in any 12-month period.

The definition of qualifying exigency was left to the Department of Labor’s new regulations that were released in November 2008, and go into effect on January 16, 2009. The final rule defines “qualifying exigency” in seven general categories that include:

1) Short-notice deployment provides up to 7-days of leave “to address any issue that arises from the fact that a covered military member is notified of an impending call or order to active duty” with seven or less days to deployment.

2) Military events and related activities allow leave to attend military ceremonies, programs or events sponsored by the military, military service organizations or the American Red Cross.

3) Childcare and school activities allow leave to arrange childcare or attend certain school activities and meetings for a child of a covered service member needed based on a call to active duty.

4) Financial and legal arrangements provides a leave to make financial or legal arrangements to address the covered military member’s responsibilities during his or her absence for active duty and up to 90 days following the termination of the service member’s active duty.

5) Counseling allows leave for oneself, a covered service member, or a child of the covered service member, provided the counseling arises from the call to active duty.

6) Rest and recuperation provides up to 5 days of leave for each instance in which the employee will spend time with a covered service member who is on short-term, temporary rest and recuperation leave during their period of deployment

7) Post-deployment activities provides up to 90-days to attend military ceremonies, programs and events and to address issues that arise from the death of a covered service member while on active duty.

8) Additional activities allow the employer and employee to agree on a leave “to address other events which arise out of the covered military member’s active duty or call to active duty status”.

A Quick Look at the Uniformed Services Employment and Reemployment Rights Act and Its Interaction with FMLA

Before US National Guard and Reserve members are called into active duty, most are employed in civilian jobs in our communities. Statistics published by the Department of Defense in 2007 showed that over 20,000 US military personnel in Iraq continue to be National Guard and Reserve members. Most return home to their communities, families and the jobs that they had left behind to serve our country. Their transition back to civilian life may not be easy but it does not need to be complicated by the undue burden of finding work. The Uniformed Services Employment and Reemployment Act (USERRA) of 1994 protects civilian reemployment rights for veterans and members of the National Guard and Reserve following qualifying military service. USERRA also prohibits employer discrimination against any person on the basis of that person’s past military service, current military obligations or intent to join one of the uniformed services.

USERRA of 1994 requires that service members who conclude their tours of duty and who are reemployed by their civilian employers receive all the benefits of employment that they would have obtained if they had been continuously employed, except those benefits that are considered a form of short-term compensation, such as accrued paid vacation. If a service member had been continuously employed, one such benefit to which he or she might have been entitled is leave under the FMLA. The service member’s eligibility will depend upon whether the service member would have met the eligibility requirements outlined above had he or she not performed military service.

12-Month FMLA Requirement for Returning Service Members
USERRA requires that a person reemployed under its provisions be given credit for any months he or she would have been employed but for the military service in determining eligibility for FMLA leave. A person reemployed following military service should be given credit for the period of military service towards the months-of-employment eligibility requirement. Each month served performing military service counts as a month actively employed by the employer.

1250 Hours-of-Service Requirement for Returning Service Members
An employee returning after military service should be credited with the hours- of-service that would have been performed but for the period of military service in determining FMLA eligibility. Accordingly, a person reemployed following military service has the hours that would have been worked for the employer added to any hours actually worked during the previous 12-month period to meet the 1250 hour requirement of FMLA. In order to determine the hours that would have been worked during the period of military service, the employee’s pre- service work schedule can generally be used for calculations. For example, an employee who works 40 hours per week for the employer returns to employment following 20 weeks of military service and requests leave under the FMLA. To determine the person’s eligibility, the hours he or she would have worked during the period of military service (20 x 40 = 800 hours) must be added to the hours actually worked during the 12-month period prior to the start of the leave to determine if the 1250-hour requirement is met.

The Family and Medical Leave Act is one of the most important laws established for workers and workers’ families. Currently working families, both union and non-union, military and non-military are protected by FMLA.

For additional information see the Department of Labor website: Gayle Hamilton is a labor educator with the Wayne State University’s Labor Studies Center and Labor School. This article is not intended as legal advice. For legal advice you are advised to seek counsel from an attorney.