Tag Archives: National Defense Authorization Act

Employee eligibility: What you need to know about the new FMLA regulations

Yesterday, the Department of Labor released new final FMLA regulations that will take effect on January 16, 2009. The Labor Department developed these regulations because of the National Defense Authorization Act for Fiscal Year 2008 (NDAA), which President Bush signed last January, and because of parts of the current regulations being invalidated by various court decisions. The regulations detail two new military family leave entitlements. Here is a summary of the important changes that you should be aware of:

Employee Eligibility for FMLA – the 12-month rule

One of the requirements for eligibility is that an employee must work for that employer for at least 12 months. The new rule says that those 12 months need not be consecutive, but that employment before a 7-year break in service need not be counted. 29 CFR 825.110(b)(1). The rule provides for two exceptions: 1) Time served fulfilling National Guard or Reserve duty counts toward the 12-month employment requirement; and 2) Where there is a written agreement concerning the employer’s intention to rehire the employee after the break in service. 29 CFR 825.110(b)(2). If an employer chooses to count someone’s employment prior to a 7-year gap, it must do so for all employees with a similar break in service.  29 CFR 825.110(b)(4).

Working 1,250 hours in 12 months

Another eligibility requirement is that an employee must have worked at least 1,250 hours in the 12 months immediately preceding the beginning of the FMLA leave. A new regulation provides that an employee who is re-employed under USERRA after military service must be credited with the hours they would have worked but for the military service. 29 CFR 825.110(c)(2).

The Department of Labor clarified the eligibility rule to reflect that an employee who is out on non-FMLA leave may become eligible for FMLA leave during that time, thus turning the last part of the non-FMLA leave into FMLA leave. 29 CFR 825.110(d).

FMLA leave for members of the military and their relatives

A couple of paragraphs were added regarding required leave for employees or relatives who are members of the military.  Employers must grant FMLA leave to employees where there is a “qualifying exigency” arising from the fact that their child, parent, or spouse is a “covered military member on active duty” or has been notified of an impending call to active duty.  FMLA leave must also be granted to an employee to care for an injured servicememer who is a parent, spouse, child, or next of kin. 29 CFO 825.112(5), (6).

What’s a qualifying exigency?

The “qualifying exigency” referred to in the prior paragraph can be: 1) A short-notice deployment; 2) A military event or related activity; 3) Alternative childcare or school arrangements that need to be made because of military active duty status; 4) Financial or legal arrangements because of military active duty; 5) Counseling for the covered military member; 6) Short-term rest and recuperation of the military member; 7) Attending post-deployment activities sponsored by the military; or 8) Other activities arising out of military duty. 29 CFR 825.126.


These are the main changes to the eligibility regulations of the FMLA.  As you can see, most of the changes have to do with members of the military and their relatives.  Many employers might argue that this puts a lot of the burden of leave time from employment on the employer, and they’d be right.  However, the heaviest burdens of military service are still being carried by individual members of the military who are deployed overseas.  So a spreading of the burdens, in a sense, is not such a bad thing.


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Filed under FMLA, USERRA