The Latest Convergence of War and Work: Recent Amendments to the FMLA
On January 28, 2008, President Bush signed into law the National Defense Authorization Act. Section 585 of that Act amends the Family and Medical Leave Act of 1993 (FMLA) to provide significant added protections for military personnel and their families. This Act represents the first significant expansion of FMLA rights in over a decade and was passed resoundingly by a House vote of 369-46 and Senate vote of 91-3.
Since 1993, the FMLA has provided leave in only four potentially qualifying instances related to childbirth or child placement, or the serious health condition of oneself or immediate family. The new law adds another basis for leave for the first time in 15 years. It permits an eligible employee who is a spouse, son, daughter, parent or next of kin of a service member with a “serious injury or illness” incurred in the line of active duty to take up to 26 weeks of FMLA leave in a single 12-month year to care for the service member.
Noteworthy facts concerning the caregiver provision include:
Potential 6 months of protected leave in a year - more than twice the limit allowed for historical qualifying events.
- “Next of kin” represents a much broader category of employee who could qualify for leave. Next of kin is defined as the nearest blood relative.
- “Serious injury or illness” differs from the historical use of “serious health condition” as a trigger for leave and is specifically defined in the new law.
- Focus is not only on those service members wounded in combat, but also has a much broader application, including any injury or illness incurred in the “line of duty.” Under military regulations, injuries of any kind suffered by service members are generally found to be in the “line of duty” unless the injury results from the gross misconduct of the service member.
- The caregiver provisions became effective immediately upon signing by President Bush. Active Duty Leave
The new law adds yet another basis for qualified leave. It provides for 12 weeks of leave to an employee due to a “qualifying exigency” which arises out of the fact that the employee’s spouse, child or parent is on active duty or has been notified of an impending call to active duty in the Armed Forces in support of a contingency operation. Of particular interest:
- Congress did not define the term “qualifying exigency.” It has directed the Department of Labor (DOL) to do so. Regulations interpreting this and other terms in the new law are expected to be promulgated in the near future.
- Until the regulations are finalized, the DOL has specifically encouraged employers to provide this type of leave generously to qualified employees.
Immediate Employer Action Needed Employers subject to the FMLA should act quickly to ensure that their managers and human resources personnel are aware of the enhanced leave rights and should examine and revise current FMLA policies to ensure consistency with the new law. The new provisions contain many definitions and intricacies beyond the scope of this article. Thus, when drafting/amending policies and procedures, and certainly if met with a request for leave pursuant to the new law, it is advisable to seek legal counsel immediately. Finally, until the DOL implements its interpretive regulations regarding Active Duty Leave, employers are wise to evaluate each request for such leave on an individual basis, affording the leave liberally when possible, as directed by the DOL.
Ms. Melissa Shirley is a partner in the Baton Rouge office of Breazeale, Sache & Wilson, L.L.P. where she practices in issues involving labor and employment law.