Military Expansion of the Family and Medical Leave Act (FMLA)

The passage of the Family and Medical Leave Act of 1993 (FMLA) was a step forward for millions of Americans by providing workers with up to 12-weeks of unpaid, job protected leave each year to care for close family members or to address serious personal health concerns. In January 2008, the Military Expansion for Injured Servicemembers Act was signed into law, as part of the 2008 National Defense Authorization Act (NDAA), and amended FMLA for the first time in fifteen years. The Act expanded FMLA in two ways:

  • Provided 26-weeks of leave for family members or next of kin to care for a wounded service member in one 12-month period.
  • Allowed National Guard and Reserve family members to use their original twelve weeks of FMLA leave to help with “qualifying exigencies” in their family arising out of the deployment of a service member.

“Qualifying exigency” has been defined as one or more of the following circumstances:

  • Short-notice deployment
  • Military events and related activities
  • Childcare and school activities
  • Financial and legal arrangements
  • Counseling
  • Rest and recuperation leave
  • Post-deployment activities
  • Additional activities that the employer and employee agree qualify as exigency and agree to the timing and duration of the leave

In the FY 10 National Defense Authorization Act (NDAA), Congress made some changes to the military expansion by extending qualifying exigency leave to families of active-duty service members deployed to a foreign country. They also expanded coverage to care for a wounded service member to include a veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness and who was a member of the armed forces at any time during the period of five years preceding the date on which the veteran received treatment.

One thing is important to note – for both expansions, the leave takers must still meet the general employee and employer eligibility requirements which include:

  • The employee has worked for the employer for at least 12 months (not necessarily consecutively).
  • The employee has worked for the employer for at least 1,250 hours in the previous consecutive 12-month period.
  • The employee works at or is assigned to a worksite that has 50 or more employees or which is within 75 miles of worksites that taken together have a total of 50 or more employees.

For more information on the Family and Medical Leave Act go to http://www.dol.gov/whd/fmla/index.htm.

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