If an employee's family member is called to active military duty or is injured during military duty, new changes to federal law allow the employee to take time off from work to handle issues relating to the family member's service or to care for the injured servicemember.

In January 2008, President Bush signed a defense reauthorization bill that gives military family members the right to take time off from their jobs. The new law adds two important provisions to the federal Family and Medical Leave Act (FMLA):

• Covered employees may take up to 12 weeks of leave per year to deal with certain issues relating to a family member's active duty or call to active duty.
• Covered employees may take up to 26 weeks of leave in a single year to care for a family member who is seriously ill or injured in active military duty.

There are still many questions about these new rights, including what situations they cover and how they will be administered. The Department of Labor (DOL) plans to issue final regulations providing definitions of key terms and other information necessary to figure out exactly how these leave rights will work. Here's what we know for now.

Leave for Active Duty of a Family Member

The new law will allow employees to take FMLA leave for "any qualifying exigency" arising out of a family member's active duty or call to active duty. (For information on FMLA leave generally, read Nolo's article  Taking Family and Medical Leave.) This new provision joins the existing list of qualifying reasons for which you can take FMLA leave: for your own serious health condition, to care for a seriously ill family member, or to bond with a new child.

You get 12 weeks total. This leave is part of the regular 12-week entitlement available under the FMLA -- that is, you get 12 weeks total per year for any qualifying reason, not an additional 12 weeks for issues relating to a family member's military service.

This leave is not effective yet. According to the DOL, this provision will not take effect immediately. The law says that the DOL must issue regulations defining "any qualifying exigency." The DOL has interpreted this to mean that this leave right won't go into effect until regulations are issued. In the meantime, the DOL encourages employers to provide this leave anyway.

Many regular FMLA rules apply. Some of the rules that apply to regular FMLA leave will also apply to leave for a family member's active service. For example:

• This leave may be taken intermittently or on a reduced schedule; you don't have to take all 12 weeks at once.
• Employers may require notice in advance, if the need for leave is foreseeable.
• Employees can substitute, or employers can require them to substitute, applicable accrued paid leave during this type of FMLA leave.
• Employers will be able to require a certification: documentation of the family member's active duty.

Leave to Care for Injured or Ill Service Member

The law also creates an entirely new right for family members who need to care for a seriously ill or injured service member. These employees can take up to 26 weeks of leave in a year (that's 26 weeks total, not 26 weeks plus 12 weeks of FMLA leave for other reasons). This provision takes effect immediately.

How often can an employee take this leave? The law says that this leave "shall only be available during a single 12-month period" -- suggesting that employees may take this leave only one time. Despite this language, however, the DOL is considering whether employees should be entitled to a once-only leave benefit of 26 weeks or whether the limit should be applied in some other way (for example, 26 weeks off for each family member injured while on active duty or 26 weeks off for each injury suffered by a family member on active duty).

Covered family members. Covered family members include not just the spouses, children, and parents covered by the FMLA, but also "next of kin," defined as the service member's nearest blood relative.

Qualifying illness or injury. This type of leave allows family members to take time off to care for a service member who is seriously ill or injured. The illness or injury must stem from active duty, and must render the service member medically unfit to perform the duties of his or her office, grade, rank, or rating. Employees may take leave to care for a family member who is undergoing medical treatment, recuperation, or therapy; is in outpatient status; or is otherwise on the temporary disability retired list for a serious injury or illness resulting from active duty.

Other rules applying to this leave. As is true of most other types of FMLA leave, family members may take this leave on a reduced schedule or intermittently, if that's medically necessary. Employers may require advance notice, if possible, and certification from the service member's health care provider. And, the employee may choose -- or the employer may require the employee -- to use applicable accrued paid leave during this time off. 

What to Do If You Need Military Family Leave

Because these rights are so new -- and because the rules aren't yet clear on exactly how they work -- your employer might not be fully aware of its obligations.

If you think you will need this new leave, and you are otherwise eligible to use the FMLA, start by talking to your employer. Explain the circumstances for which you need time off, such as your spouse's call to active duty or your child's return from service with an injury. If possible, let your employer know how long you'll need to be gone, and offer to update your situation along the way. Be diligent about completing any required paperwork and give as much notice as possible, so your employer can prepare for your absence.

If you have questions or your employer needs to learn more about these new rights, check out the Department of Labor's FMLA materials, at http://www.dol.gov/esa/whd/fmla/.  

To learn more about the FMLA and other rights that protect you in the workplace, get  Your Rights in the Workplace , by Barbara Kate Repa (Nolo).