LEGAL UPDATE - Family and Medical Leave Act Amended To Provide Military-Related Leave
By Evelyn P. Schonberg
Those of you who have 50 or more employees know that the Family and Medical Leave Act (FMLA) provides 12 workweeks of unpaid leave for eligible employees who suffer from serious health conditions, whose immediate family members suffer from serious health conditions or for pregnancy related conditions or adoptions. Under the FMLA, employees are eligible for such leaves once they have been employed for at least 12 months and have worked at least 1250 hours in the 12 months just prior to the leave.
On January 28, 2008, the National Defense Authorization Act for Fiscal Year 2008 amended the FMLA by creating two new types of leave to address the needs of employees who have family members serving in the Armed Forces. Although neither type of leave changes the eligibility requirements, the first new type of leave doubles the duration of the leave.
Servicemember Family Leave
The first new type of leave provides 26 workweeks of leave to a “spouse, son, daughter, parent, or next of kin” to take care of a “Covered Servicemember,” who is defined as follows: “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.”
Note should be taken that the term “next of kin” has been defined as “nearest blood relative,” thereby broadening the “immediate family member” definition for purposes of this type of leave. Also, the type of serious injury or illness that a Covered Servicemember must be suffering from must be incurred “in line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating.”
Servicemember Family Leave is effective immediately. Please keep in mind that an eligible employee may not take more than a total of 26 workweeks of leave during a 12 month period for Servicemember Family Leave and any other type of FMLA leave.
Qualifying Exigency Leave
The second type of new leave provided is for “any qualifying exigency (as the Secretary shall, by regulation, determine) arising 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.” A “contingency operation” means any action against an enemy of the United States or an opposing military force and national emergencies declared by the President in which armed services members are called to, or retained in, active duty.
Unlike the Servicemember Family Leave, the Qualifying Exigency Leave will not go into effect until the Department of Labor issues regulations defining exactly what constitutes a “qualifying exigency.”
On February 11, 2008, the Department of Labor (DOL) issued a Notice of Proposed Rulemaking on the Qualifying Exigency Leave and many other issues that have arisen under the FMLA in the past. Comments must be submitted by April 11, 2008 and the new rules are expected some time thereafter.
In soliciting comments on what constitutes a “qualifying exigency,” DOL has provided the following examples of the type of exigencies that may, or may not, qualify:
Making arrangements for child care; making financial and legal arrangements to address the servicemembers’ absence; attending counseling related to the active duty of the servicemember; attending official ceremonies or programs where participation of the family member is requested by the military; attending to farewell or arrival arrangements for a servicemember; and attending to affairs caused by the missing status or death of a servicemember.
As soon as the new rules are published, we will notify you and provide full updates on them. In the meantime, you must ensure that your supervisors are trained on the new Servicemember Family Leave. Please contact Lynn Schonberg if you have any questions on this new law.