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Expansion of the Family Medical Leave Act for Military Families

Volume 7, Issue 1
January 31, 2008

On Monday, January 28, 2008 before delivering his last State of the Union address, President Bush signed into law H.R. 4986, the National Defense Authorization Act ("NDAA"). Section 585 of the NDAA amends and expands the leave provisions of the Family and Medical Leave Act of 1993 ("FMLA") for military families by permitting eligible employees to take job- protected family medical leave due to care for a family member who was injured while serving in the military and for certain "qualifying exigencies" related to active military service.

Injured Service Member (Caregiver) Leave

Employees with a spouse, parent, child or next of kin who is a service member with a serious injury or illness may take up to twenty-six (26) weeks of leave during a twelve (12) month period (inclusive of regular FMLA leave). This includes time off when the service member is receiving medical treatment, recuperating, undergoing therapy, or is on the temporary disability retired list. The service member's serious injury or illness must be incurred by the service member in the line of duty while on active duty in the Armed Forces and have the potential to render the service member medically unfit to perform the duties of his/her office, grade, rank or rating. This new type of FMLA leave is only available during a single 12-month period and became effective immediately.

Active Duty Family Leave

Under this additional new FMLA leave provision, employees with a spouse, parent or child who is a service member on active duty or notified of an impending call to active duty in the Armed Forces for a "contingency operation" may take up to twelve (12) weeks of FMLA leave when they experience a "qualifying exigency."

The term "contingency operation" means a military operation in which service members may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force; or the call up during a war or a national emergency declared by the President or Congress.

Unfortunately, the term "qualifying exigency" was not defined. Rather, Congress specified that the term will be defined by the U.S. Department of Labor ("DOL"), which is in charge of FMLA enforcement. Thus, this new leave provision is not effective until the DOL issues final regulations defining a "qualifying exigency." The DOL reports that it is expeditiously preparing such regulations. In the interim, the DOL encourages employers to act in good faith and endeavor to provide this type of leave to qualifying employees immediately.

Other New Provisions

Employees may take injured service member leave and active duty family leave intermittently or on a reduced schedule. When seeking foreseeable injured service member or active duty family leave, employees must provide such notice to their employers as is "reasonable and practicable." Employers may require employees seeking to use these new forms of FMLA leave to substitute any accrued paid vacation, personal leave or family leave they have for FMLA leave. Additionally, employers may require that a request for injured service member or active duty family leave be supported by a certification issued by the health care provider of the eligible employee or of the son, daughter, spouse, or parent of the employee, or of the next of kin of an individual in the case of injured service member leave. Employers may also aggregate the number of workweeks of leave which both a husband and wife (who are both employees of the same company) may take and limit them to a total of twenty (26) workweeks during the single twelve (12) month period when using injured service member and FMLA-qualifying leave for the care of a parent, the birth of a child or placement of a child for adoption or foster care.

The first step for covered employers is to provide employees with notice of these new FMLA rights. Clients should feel free to contact Kamer Zucker Abbott for assistance in navigating through these new changes.

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.