New rules have been proposed to implement 2010 amendments to the military family leave provisions of the federal Family and Medical Leave Act (FMLA), which provide for qualifying exigency leave (to address special issues arising from active duty or call to active duty) and military caregiver leave. To be eligible for FMLA leave, an employee must work at a location where the company employs 50 or more employees within 75 miles and meet certain other requirements with respect to time worked.
Qualifying Exigency Leave
Eligible employees whose spouse, child, or parent is a covered military member may take up to 12 weeks of FMLA leave during any 12-month period to address certain special issues (called “qualifying exigencies”) related to active duty or a call to active duty status, such as attending military sponsored functions, making appropriate financial and legal arrangements, and arranging for alternative childcare.
Military Caregiver Leave
Under the FMLA’s military caregiver leave provision, eligible employees who are the spouse, child, parent or next of kin of a covered servicemember (National Guard, Reserves, or Regular Armed Forces) may take up to 26 weeks of FMLA leave during a single 12-month period to care for the servicemember with a serious injury or illness.
Changes Made by the 2010 Amendments
The 2010 amendments to the FMLA military family leave provisions extended qualifying exigency leave to eligible employees with family members serving in the Regular Armed Forces (in addition to the National Guard and Reserves), and added a requirement that the covered military member be deployed to a foreign country.
With respect to military caregiver leave, the 2010 amendments expanded the definition of a covered servicemember to include recent veterans with serious injuries or illnesses (in addition to current members of the Armed Forces), and also expanded the definition of a serious injury or illness to include preexisting serious injuries or illnesses that are aggravated by service in the line of duty (in addition to serious injuries or illnesses incurred in the line of duty).
The proposed rules are intended to implement the 2010 amendments, which are currently already in effect (except that, according to the proposed rules, employers are not required to provide the 26-week military caregiver leave to employees to care for a veteran until final regulations are issued defining a qualifying serious injury or illness of a veteran). Highlights of the proposed rules include:
- Extension of qualifying exigency leave to eligible employees with covered family members serving in the Regular Armed Forces and inclusion of a foreign deployment requirement;
- Extension of military caregiver leave to eligible family members of recent veterans with a serious injury or illness incurred in the line of duty; and
- Extension of military caregiver leave to cover serious injuries or illnesses for both current servicemembers and veterans that result from the aggravation during military service of a preexisting condition.
The proposed rules also incorporate amendments to the FMLA eligibility requirements for certain airline flight crew employees.