February 18, 2008
The first-ever amendments to the Family and Medical Leave Act (FMLA) were signed into law effective January 28, 2008. One new type of leave for relatives of service members is effective immediately, and the other will become effective once regulations are finalized.
What is New?
Leave to Care for an Injured Service Member. Effective immediately, employers are required to provide up to 26 weeks of unpaid leave in a single 12-month period to an eligible employee who is a spouse, son, daughter, parent or next of kin of a member of the armed forces, including a member of the National Guard or Reserves, to care for the service member with a “serious injury or illness.”
The term “serious injury or illness” is defined as an injury or illness incurred while on active duty, and in the line of duty, that may render the member unfit to perform the duties of the member’s office, grade, rank or rating. This definition differs from the definition of “serious health condition” used elsewhere in the FMLA. Also, making these types of leave available to “next of kin” significantly expands the pool of eligible employees.
The Department of Labor (DOL) will issue regulations in the next few months that define “next of kin” as well as explain the calculation and coordination of the 12-month period with the employer’s regular FMLA period.
Leave Where a Family Member is Called to Active Duty. The other type of leave employers will soon need to provide is up to 12 weeks of unpaid leave per year to an eligible employee based on any “qualifying exigency” arising out of the call to active duty of the spouse, son, daughter, or parent of the employee. Until the term “qualifying exigency” is defined by regulation, an employer is not required, but is encouraged, to provide this type of leave. It is anticipated that “qualifying exigencies” will include arranging for child care or attending pre-deployment or re-integration meetings for service members.
What Has Remained the Same?
Only employers with 50 or more employees are obligated to provide these new types of leave. The leave remains unpaid, but, an employer may require the employee to substitute accrued paid leave, if available. The employer must continue to provide access to health benefits and must restore the employee to his or her job upon the timely conclusion of the leave. As with the original FMLA, these two types of leave can be taken intermittently, employees should give advance notice where the need for leave is foreseeable, and the employer can require medical certifications of the need for leave to care for an injured service member. We anticipate that the DOL will provide more details when their recent overhaul of the FMLA regulations is finalized.
What Should Employers Do Immediately?
- Post the new DOL poster on Military Family Leave (copy attached) in the workplace, and on your web-site, if applicable.
- Prepare to review and revise all FMLA policies, practices and forms to incorporate the new types of leave. You may wish to wait until the regulations are final.
- Train supervisors regarding the new types of leave, and the necessity of complying with the new requirements.
- Decide whether you will implement qualifying exigency leaves prior to the effective date of the final regulations.
- Consider implementing more cross-training of employees so you will be better prepared in the event employees begin to take lengthy leave.
- Consider expanding your leave donation program, if applicable, so that employees have the possibility of having some of their leave time paid for.
- Consider having employees identify, ahead of time, all family members who are serving in the military. This may allow you to better plan for absences.