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FMLA Expansion Impacts Military Service Members and Their Families


February 1, 2008

Read Time

3 minutes



On January 28, 2008, President Bush signed into law the National Defense Authorization Act (NDAA), which amended the Family and Medical Leave Act (FMLA) to provide two new workplace benefits for military service members and their families. The expansion is the first for the 15-year-old FMLA. Previously, the FMLA only required leave for an employee's own serious health condition, the serious health condition of an employee's immediate family member, or to care for an employee's child after birth or placement through adoption or foster care.

Action Item(s)

  • Employers should revise their policies to reflect their expanded obligations under the FMLA as amended by the NDAA.
  • Employers should display the new poster insert issued by Department of Labor. This poster insert may be downloaded from
  • Employers should immediately implement the caregiver leave provisions of the NDAA.
  • Employers should consider providing qualifying exigency leave under the NDAA while awaiting final regulations from the Secretary of Labor.


Caregiver Leave
(Effective as of 1-28-2008)

The new law permits a "spouse, son, daughter, parent, or next of kin" (defined as "nearest blood relative") of a "covered service member" to take up to 26 workweeks of leave during a 12-month period to care for the service member. "Covered service member" is defined as one who is "undergoing medical treatment, recuperation, or therapy, is otherwise in an outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness." Notably, this leave is available during a single 12-month period. It does not renew every year like typical FMLA leave. In addition, if an employee takes other types of leave under the FMLA during the same year, this will reduce the amount of caregiver leave available to the employee.

"Qualifying Exigency" Leave
(Effective as of issuance of final regulations by Secretary of Labor)

The expanded FMLA also permits employees to take up to 12 weeks of FMLA leave due to a "qualifying exigency" resulting from a spouse, child, or parent being placed in active duty, or being notified of an impending call to active duty in the Armed Forces in support of a contingency operation.

Note that when an employee requests leave for a "qualifying exigency" and the necessity for the leave is foreseeable, the employee must give his/her employer "reasonable and practicable" notice. Additionally, an employer can require that a request for such leave be supported by certification that the service member is on active duty or has been called to active duty.

Employers in Illinois should be aware of the fact that under a state law passed in 2005, known as the Illinois Family Military Leave Act, family members may take from 15-30 days of leave (depending on the size of the employer) to visit with a spouse or family member who is called into service.

If you have any questions about the new legal requirements under the FMLA or if you need assistance revising your FMLA policies, please contact Peter F. Donati (312-476-7590 or or any other member of Levenfeld Pearlstein's Employment Services Group.

Filed under: Employment & Executive Compensation

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