Military Care Giver LeaveAn eligible employee is allowed to take up to 26 workweeks of leave in a single 12-month period to care for a covered servicemember (1) with a serious illness or injury incurred in the line of duty and for which the servicemember is undergoing medical treatment, recuperation, or therapy, (2) who is in outpatient status, or (3) who is otherwise on the temporarily disability retired list. 29 C.F.R. § 825.127(a). An eligible employee must be the spouse, parent, son, daughter, or next of kin (who is the nearest blood relative other than the servicemember’s spouse, parent, son, or daughter) of the servicemember to be entitled to take the leave. 29 C.F.R. § 825.127(b). Of particular note, the final rule states that the 26 weeks of military caregiver leave is allowed per servicemember and per injury, such that single employee may take multiple military caregiver leaves to care for multiple servicemembers or one servicemember with multiple qualifying injuries, provided the employee does not take more than 26 weeks of military caregiver leave in any “single 12-month period.” 29 C.F.R. § 825.127(c)(2). In addition, the “single 12-month period” for military caregiver leave begins on the first day the eligibile employee takes FMLA leave to care for the servicemember, regardless of what FMLA calendar method the employer normally uses. 29 C.F.R. § 825.127(c)(1). Any portion of the 26-week military caregiver leave that is not used to care for a particular servicemember in the single 12-month period is considered forfeit. Id. Qualified Exigency Leave As part of his or her standard 12 weeks of FMLA leave, an eligible employee may take leave for any “qualifying exigency” arising out of the fact that the employee’s spouse, parent, son, or daughter (the “covered military member”) serving in the National Guard or Reserve (or as a retired member of the Regular Armed Forces or Reserves) is on active duty or call to active duty status in support of a contingency operation. The new rule defines “qualifying exigency” as follows: - Short Notice Deployment – To address issues that arise when the covered military is notified of an impending call or order to active duty seven calendar days or less prior to the deployment, up to a maximum of seven days of leave per qualifying instance.
- Military Events and Related Activities – To attend any official ceremony, event, or program related to the covered military member’s active duty or call to active duty status.
- Childcare and School Activities – To arrange alternative childcare, to provide urgent (but not ongoing) childcare, to enroll or transfer a child to a new school or day care facility, or to attend meetings with school or daycare officials, in each instance when necessitated by the active duty or call to active duty status of the covered family member.
- Financial and Legal Arrangements – To make or update financial or legal arrangements or to act as the covered military member’s representative before a federal, state, or local agency with respect to military benefits.
- Counseling – To attend counseling provided by someone other than a health care provider for oneself or the child of the covered military member, if the need for counseling arises as a result of the covered military member’s active duty or call to active duty status.
- Rest and Recuperation – To spend time with a covered military member who is on short-term, temporary, rest and recuperation leave, but only up to five days per instance.
- Post-Deployment Activities – To attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program within 90 days of the termination of the covered military member’s active duty status, as well as to address issues that arise as a result of the death of a covered military member.
- Other Events – To address any other events that arise as a result of the covered military member’s active duty or call to active duty status, provided the employer and employee agree the event is an exigency and agree as to the timing and duration of the leave.
29 C.F.R. § 825.126(a). Other ChangesIt will take some time to digest fully the new regulations, but certain changes unrelated to the military-related provisions described above are apparent: - Serious Health Condition – A condition must involve two visits to a health care provider within 30 days of the more than three days of consecutive incapacity to qualify under that prong of the “serious health condition” definition. Separately, a condition must require at least two visit to a health care provider per year to qualify as a “chronic” serious health condition.
- Health Care Contact – A human resource professional, a leave administrator, or a management official other than the employee’s direct supervisor may contact an employee’s health care provider with the employee’s permission.
- Employer Notice – An employee may recover when he or she suffers individualized harm as a result of an employer’s failure to designate leave as FMLA leave. This provision replaces the categorical penalty provision previously invalidated by the Supreme Court in Ragsdale v. Wolverine World Wide, Inc.
- Employee Notice –Absent unusual circumstances, employees must follow an employer’s regular call in procedures as opposed to having two business days to inform the employer of the need for FMLA leave.
- Waiver – FMLA claims may be waived retroactively.
- Light Duty – Time spent working voluntarily in a light duty position does not count toward an employee’s available FMLA time.
A summary of some of the above changes may be found in the DOL’s fact sheet on the new FMLA rule. QuestionsThe foregoing is not intended as legal advice. If you have specific questions regarding the FMLA or any other employment-related leave law, please contact one of our attorneys. | 
