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Deployment law brings needed relief: new job protections for family members of National Guard and Reserve.

When Kerri Jones' National Guard unit received notice of deployment to Iraq in June 2008, her family was not prepared. In the weeks leading up to the deployment and immediately afterward, her husband, Jim, barely had time to get everything in order regarding childcare and financial arrangements. Complicating matters: they had just sold one house and bought another.

To close on the real estate transaction after Kerri left, Jim and Kerri had to take care of some extra paperwork. Jim spent a great deal of time running between banks, attorneys' offices and real estate agents.

All told, Jim was away from his job for more than 40 hours during those weeks handling deployment-related financial, legal and child care issues. He was lucky--he had a great employer that gave him the time off without any risk to his job. Thanks to a change in the Family and Medical Leave Act (FMLA), most families of National Guard and Reserve called to active duty will no longer have to count on being "lucky" in order to avoid risking job loss. If the family member's employer is covered by FMLA and the employee meets the length of employment qualifications for FMLA, the employee will be eligible for job protection for just the kind of needs Jim experienced.


In January 2008, FMLA was amended to provide that an eligible employee may take up to 12 weeks of unpaid leave if the employee's spouse, child or parent is on active duty in the military or is a reservist who faces recall to active duty if a "qualifying exigency" exists. Qualifying exigencies are those needs of family members that arise directly due to the covered service member's deployment or active service. However employers were not required to provide this type of leave until the federal Department of Labor (D O L) issued final regulations defining qualifying exigency.

With approved federal regulations published in November 2008, DOL has now defined the term qualifying exigency by providing a non-exhaustive list of the types of circumstances that will qualify. Employers should be aware of the type of circumstances that will trigger obligations and also aware of which employees are eligible under this new provision. The new regulations state that to be eligible for this type of leave, the employee's family member must be a member of the National Guard or Reserves when called to active duty and not already on active duty. Leave is not available for a covered service member already on active duty.

The regulations provide a list of specific examples of exigencies, as well as a catchall provision that requires the employer and employee to agree on "additional activities." An eligible employee may take FMLA leave while the employee's spouse, son, daughter or parent (the "covered military member") is on active duty or called to active duty for one or more of the following qualifying exigencies:

* Short-notice deployment: Leave taken for this purpose can be used for a period of seven calendar days beginning on the date a covered military member is notified of an impending call or order to active duty.

* Military events and related activities: Leave to attend any official ceremony, program or event sponsored by the military that is related to the active duty or call to active duty status of a covered military member and to attend family support or assistance programs and informational briefings sponsored or promoted by the military, military service organizations or the American Red Cross.

* Child care and school activities: Leave to arrange for child care, to provide child care to a covered military member's child on an urgent, immediate-need basis, to enroll in or transfer to a new school or day care facility, or to attend meetings with staff at a school or a day care facility.

* Financial and legal arrangements: Leave to make or update financial or legal arrangements to address the covered military member's absence while on active duty or call-to-active-duty status. It also provides leave for the family member to act as the covered military member's representative before a federal, state or local agency for purposes of obtaining military service benefits while the covered military member is on active duty or call-to-active-duty status, and for a period of 90 days following the termination of the covered military members' active-duty status.

* Counseling: Leave to attend counseling for the covered military member or his or her child, provided that the need for counseling arises from the active duty call or call-to-active-duty status of a covered military member.

* Rest and recuperation: Leave to spend time with a covered military member who is on short-term, temporary, rest-and-recuperation leave during the period of deployment. Eligible employees may take up to five days of leave for each instance of rest and recuperation.

* Post-deployment activities: Leave to attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military for a period of 90 days following the termination of the covered military member's active-duty status. This includes leave to address issues that arise from the death of a covered military member while on active duty status.

* Additional activities: Leave to address other events that arise out of the covered military member's active duty or call-to-active-duty status provided that the employer and employee agree that such leave will qualify as an exigency and agree to both the timing and duration of such leave.


An employee is expected to give notice to the employer of the need for FMLA leave. However, the employee is not required to expressly assert rights under FMLA or even mention FMLA. Eligible employees, like Jim Jones in the example above, may also take FMLA leave on an intermittent- or reduced-schedule basis when necessary because of a qualifying exigency.


The first time an employee requests leave because of a qualifying exigency, an employer may require the employee to provide a copy of the covered military member's active-duty orders or other documentation issued by the military that indicates the covered military member is on active duty or call-to-active-duty status and the dates of the covered military member's active duty service. An employee is only required to provide this information once.

Employers may use DOL's new optional form (Form WH-384) found at or require a certification that sets forth the following information: (a) statement of appropriate facts regarding the qualifying exigency for which FMLA is being requested; (b) the approximate date upon which the qualifying exigency commenced or will commence; (c) for a single, continuous period of leave, the beginning and end dates for such absence; (d) for intermittent- or reduced-schedule basis leave, an estimate of the frequency and duration of the qualifying exigency; and (e) if the qualifying exigency involves meeting with a third party, appropriate contact information for the individual or entity with whom the employee is meeting, and a brief description of the purpose of the meeting.

An employer must provide written notice of the requirement for certification each time a certification is required.

The changes to FMLA to allow protected leave for family members experiencing a qualifying exigency will be comforting to many employees who are struggling to balance work and the unique family needs of service members. These provisions, together with the expanded leave protection for family members of covered service members with a serious injury or illness incurred while on active duty, provide an expanded workplace safety net for employees.

For more information, go to www. The information provided here is not intended as legal advice and employers or employees with questions on how the regulatory changes affect their own circumstances should consult with legal counsel.

Judith Cummings is a senior associate at The Growth Co. Inc., 121 West Fireweed Lane in Anchorage, 276-4769. She has been a human resources consultant for more than 15 years, serving Fortune 500 companies, local governments and other employers. A graduate of the University of Minnesota Law School, prior to becoming a consultant, she served as an employment attorney in Minnesota, North Dakota and Nebraska.
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Title Annotation:HR MATTERS
Comment:Deployment law brings needed relief: new job protections for family members of National Guard and Reserve.(HR MATTERS)
Author:Cummings, Judith
Publication:Alaska Business Monthly
Geographic Code:1USA
Date:Feb 1, 2009
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