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November 16, 2011
The New “M” In FMLA
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On January 16, 2009, regulations from the Department of Labor went into effect, giving life to two new categories of leave for family members of military service members.

Overview of the Family and Medical Leave Act

The Family and Medical Leave Act of 1993 (“FMLA”) applies to companies with 50 or more employees and requires that employers provide employees with up to 12 weeks of unpaid leave in a 12-month period to address certain family or medical issues, maintain group health insurance coverage for employees on FMLA leave, and ensure that the employee is restored to the same or equivalent job upon return from leave.

New Categories of Leave for Military Families

The National Defense Authorization Act (“NDAA”) created two new categories of FMLA leave: (1) qualifying exigency leave and (2) military caregiver leave.

Qualifying Exigency Leave

The NDAA provides for up to 12 weeks of Qualifying Exigency Leave to an employee whose spouse, child, or parent is in the National Guard or the military reserve and is on active duty or has been called to active duty in support of a contingency operation. An employee may also be eligible if such family member is a retired service member called to active duty. Notably, Qualifying Exigency Leave is not available if the employee’s family member is in the Regular Armed Forces.

The regulations implementing the NDAA set forth several “exigencies,” such as a family member’s short notice deployment. An employer and employee may also agree to treat other events as a qualifying exigency entitling the employee to FMLA leave.

Military Caregiver Leave

An employee may take up to 26 weeks of unpaid leave to care for a spouse, child, parent or next of kin when such person is a military service member and in need of medical care. Unlike Qualifying Exigency Leave, family members of service members in the Regular Armed Forces are eligible for Military Caregiver Leave.

What These Changes Mean for Your Business 

In certain circumstances, the FMLA requires that employers include notice of FMLA rights in the employer’s handbooks and other written materials. Employers governed by the FMLA should ensure that their employee handbooks address these new categories of FMLA leave.

The foregoing is a brief overview of federal leave provisions. For more detailed information or to determine whether your FMLA leave policies are sufficient, please contact Clemencia Castro-Woolery or Deidra Nguyen of Eisenhower’s Labor and Employment Group.


This advisory is a publication of Eisenhower Carlson PLLC. Our purpose in publishing this advisory is to inform our clients and friends of recent legal developments. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations.

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