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FMLA Extension To Military Families: What Employers Need to Know

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Amanda Garcia-Williams
Foster Swift Health Care Law Report
March 2008

On January 28, 2008, President Bush signed into law the National Defense Authorization Act. This is the first expansion to the Family Medical Leave Act ("FMLA") in 15 years. This Act includes two major amendments, expanding the benefits of the FMLA to assist military members and their families. However, before you enact these new amendments, Employers should first analyze whether they are a covered employer under the FMLA.


The FMLA applies to employers who employ 50 or more employees within a 75- mile radius for each working day during 20 or more calendar workweeks in either the current or preceding calendar year. To determine whether the 50-employee threshold has been satisfied, an employer must count all employees who appeared on the payroll during the previous 20 workweeks, including part-time employees, regardless of whether they received compensation for the week. Employees on paid or unpaid leave are also included in the count, unless there is a reasonable likelihood that they will not return to work.

Public agencies, including federal, state, and local governmental agencies, are covered by the FMLA regardless of number of employees employed.


Amendment 1: Active Duty Leave

This amendment adds as another reason to grant FMLA leave to deal with any "qualifying exigency" related to a spouse, son, daughter, or parent being notified of an impending call or order to active military duty or who is already on active duty. "Qualifying exigency" has yet to be defined. The term focuses on providing assistance to families who must now prepare for, and deal with, the service member’s deployment.

As the amendment uses the word "qualifying," not every exigency will be covered. There must be some nexus between the employee’s need for leave and the service member’s active duty status. Given that the FMLA already permits leave to care for a family member’s serious health condition, leave for a qualifying exigency should be limited to non-medical related exigencies.

Amendment 2: Caregiver Leave

The second expansion extends leave to an eligible employee to care for a spouse, child, parent or "next of kin" who is a covered service member who has a serious injury or illness, as defined by the amended FMLA. A caregiver may take up to 26 weeks of FMLA during a single twelve-month period.

A covered service member is a member of the Armed Forces who is:

  • undergoing medical treatment, recuperation or therapy;
  • in an outpatient status; or
  • on the temporary disability retired list for a serious injury or illness.

"Next of kin" is defined as the closest blood relative of the injured or recovering service member. "Next of kin" may include: (1) un-remarried surviving spouses; (2) natural and adopted children; (3) parents; (4) remarried surviving spouses (except those who obtained a divorce from the service member or who remarried before a finding of death by the military); (5) blood or adoptive relatives who have been granted legal custody of the service member by court decree or statutory provisions; (6) brothers or sisters; (7) grandparents; (8) other relatives of legal age in order of relationship to the individual according to the civil laws; or (9) persons standing in loco parentis to the service member.


Covered employers should amend their FMLA policies and update their posted FMLA notices to reflect the expanded rights extended to military families. The employment attorneys at Foster Swift Collins & Smith, P.C. can assist employers in modifying their policies as well as provide guidance as how to respond to any leave requests related to the employee’s military service or that of a family member.