MILITARY FAMILIES HAVE LEAVE RIGHTS
UNDER AMENDED FAMILY AND MEDICAL LEAVE ACT
By: Susan Fahey Desmond
On January 28, 2008, President Bush signed into law the National Defense Authorization Act. This law presents the first significant amendment to the Family and Medical Leave Act (FMLA) since its passage in 1993.
The Family and Medical Leave Act of 1993
Most employers are by now intimately familiar with the leave requirements of the FMLA as it was passed in 1993. Under the 1993 law, a covered employer is required to provide leave to qualified employees for up to 12 weeks for qualifying events. To qualify for leave, an employee must have worked for at least 12 months for the employer and must have worked at least 1250 during the 12 months immediately preceding the qualifying event. A qualifying event occurs upon one of the following:
· A serious health condition of the employee, parent, spouse, or child;
· The birth, adoption, or placement of foster care of a child.
New Leave Entitlements
Among other things, the National Defense Authorization Act amends the FMLA to permit a "spouse, son, daughter, parent, or next of kin" to take up to 26 weeks of leave to care for a "member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness. Under military regulations, injuries incurred "in the line of duty" are not limited to combat injuries. They can include things like car accidents and non-combat related illnesses like cancer, if they arise while a service member is actively serving.
The provision of the new law was effective as of the date of the President's signing. The Department of Labor has announced that it is working diligently to provide regulations that will guide employers through their legal obligations under the new law. In the interim, the DOL tells employers to act in "good faith" in providing leave.
The new law also allows employees to take up to twelve weeks of leave during any twelve month period because of a "qualifying exigency" arising out of the fact that a spouse, son, daughter, or parent of an employee is on active military duty or has been notified of an impending call to active military duty. Congress failed to define "qualifying exigency," leaving it to the DOL to define this term. This provision of the new law will not take effect until the DOL defines "qualifying exigency." Despite the lack of guidance on the meaning of this term, the DOL has already encouraged employers to grant this type of leave liberally to qualifying employees.
What You Need to Do Now
Covered employers should promptly amend FMLA policies to reflect the significant changes in the circumstances requiring leave. Further, until the DOL issues regulations, employers would be wise to seek legal counsel with any questions about leave related to military service.
