FMLA Servicemember Leave–“Active-Duty” Leave

The FMLA now provides two completely new categories of leave for employees who are related to a servicemember who is called to active duty or injured in the military.

The first type of leave is triggered when the employee’s relative is called to active duty. It is designed to enable servicemembers’ family to get FMLA time off to make the arrangements necessary for the servicemember’s departure. Below is a short summary of the need-to-know points for this first type of new FMLA leave.

Active-Duty Leave:

• Covers employees who have a spouse, parent, or child who is on or has been called to active duty in the Armed Forces. These workers may take up to 12 weeks of FMLA leave when they experience “any qualifying exigency.” While “qualifying exigency” is yet to be defined by DOL, but it probably will include — at a minimum — covering necessary family and childcare responsibilities of the servicemember when that family member is called to active duty.

• Employees who request this type of leave are subject to most of the same requirements as other forms of FMLA leave, including employee eligibility and notice requirements, maintenance of benefits, and job reinstatement.

• Employers may require certification that the employee’s family member is on active military duty in accordance with guidance to be provided by the Secretary of Labor.

• Employers should grant these leave requests liberally until DOL defines the term “qualifying exigency”.