Labor & Employment Law Articles

FMLA and Active Duty and Military Injuries

On January 28, 2008, President Bush signed the first expansion of the Family Medical Leave Act ("FMLA") since the law was enacted in 1993. The National Defense Authorization Act requires employers to provide twelve (12) weeks of FMLA leave to an employee because of any "qualifying exigency" arising out of the fact that the employee’s spouse, child, or parent is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces. The term "qualifying exigency" has not been defined; however, it is generally understood to include a service member’s deployment and leave from active duty.

Additionally, the FMLA expansion allows employees 26 weeks of leave to care for a spouse, child or parent who incurred an injury during military services that resulted in them being unable to perform their duties. However, the employee is only entitled to 26 weeks of leave, even if the employee would be entitled to leave for another FMLA-qualifying event (the birth or adoption of a child; to care for a parent, child or spouse with a serious health condition; to tend to the employee’s own serious health condition; or the employee’s parent, child or spouse being called to active duty in the Armed Forces). The 26 weeks of leave are only available during a 12-month period, and, as with all FMLA leave, may be taken intermittently or on a reduced-leave schedule.

Employers should update their FMLA workplace postings as soon as possible to reflect these changes.