Labor Department Clarifies Expanded FMLA Rules

By Staff Report

Nov. 18, 2008

Final Labor Department regulations issued Friday, November 14, resolve numerous questions employers have raised about legislation enacted this year that expands the Family and Medical Leave Act for employees whose family members are in the military.

That new law expands the FMLA in two ways for military families. Under the first expansion, spouses, children, parents or nearest blood relatives can take up to 26 weeks of leave under the FMLA to care for a service member who is injured or becomes ill while on active duty. The illness or injury must be severe enough that the service member is unable to perform his or her duties.

Under the second expansion, employees are allowed to take up to 12 weeks of leave when a spouse, child or parent is on active duty in the armed forces or is called up for active duty. Leave is allowed for any “qualifying exigency.”

The final regulations make clear that an employee is entitled to a maximum of 26 weeks of leave during a 12-month period. For example, if a working parent took 26 weeks of leave to care for an injured child, the parent could not take another 26 weeks of leave during the same 12-month period if a second child were injured.

In addition, the 26-week leave limit is a per-injury limitation. For example, if an individual injured an arm and a working parent used 26 weeks of leave to care for the child, the parent could not take additional leave in a subsequent period to provide care for the same injury.

However, the employee could use up to 26 weeks of leave to care for a child’s injury and then take another 26 weeks of leave in a subsequent 12-month period if the child incurred a second injury during a later period.

The regulations also provide numerous examples of “qualifying exigencies,” including rest and recuperation, post-deployment activities and additional activities where the employer and employee agree to the leave.

The final regulations also provide guidance on nonmilitary-related parts of the FMLA. For example, the regulations make clear that employees working on “light duty” cannot have that time count against their 12-week FMLA entitlement.

Filed by Jerry Geisel of Business Insurance, a sister publication of Workforce Management. To comment, e-mail editors@workforce com.

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