FMLA Expanded to Include Military Family Leave
Effective January 28, 2008, the Family and Medical Leave Act ("FMLA") has been expanded by the National Defense Authorization Act for FY 2008 ("NDAA"), Pub. L. 110-181. NDAA authorizes expanded leave to employees of a "covered employer," generally a governmental agency or an employer with fifty or more employees, to care for an injured servicemember.
An "eligible employee" who is the "spouse, son, daughter, parent, or next of kin" of a "covered servicemember" may take up to twenty-six (26) weeks of leave to care for the servicemember. § 102(a)(3). The amendment defines a "covered servicemember" as 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." § 101(16).
Employers should be aware that during a twelve (12) month period, the "eligible employee" caring for a "covered servicemember" is entitled to a combined maximum of 26 work weeks of leave under the general requirements of FMLA and the new amendments of NDAA. § 102(a)(4). Prior to this expansion, governmental employers or employers with fifty (50) or more employees were required to provide "eligible employees" with a total of twelve (12) weeks of leave during a twelve (12) month period for a serious health condition. Nothing in NDAA limits an employee's ability to take leave under the general provisions during any other twelve (12) month period.
NDAA furthers allows an "eligible employee" to take up to twelve (12) weeks of FMLA leave for "any qualifying exigency" which arises "out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty in the Armed Forces in support of a contingency operation." § 102(a)(1)(E). The Department of Labor (DOL) is working to issue regulations defining "any qualifying exigency." This provision is not effective until final regulations have been issued. In the mean time, DOL is encouraging employers to provide leave to qualifying employees.
"Certification related to active duty or the call to active duty" will be defined by the upcoming regulations. "An employer may require that a request for leave" for the call to active duty provision "be supported by a certification issued at such time and in such manner" as the regulations prescribe. § 103(f).
Employers should update their FMLA posting to reflect these amendments. The DOL Wage and Hour Division have issued a posting regarding the Military Family Leave. The NOTICE poster can be found on DOL's website at http://www.dol.gov/esa/whd/fmla under Workplace posters, FMLA Poster insert for Military Family Leave Amendments.
BOTTOM LINE:
Update your postings and continue to watch for updates regarding regulations pertaining to these amendments. Remember that "covered servicemembers" and their eligible care givers now qualify for more leave. Unmarried partners are not eligible caregivers under the NDAA. Contact counsel to discuss compliance issues or other questions that may arise.
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