President Bush Signs Law to Expand FMLA to Give Protected Leave to Military Families
February 6, 2008
Todd D. Steenson- Chicago
On Monday, January 28, 2008, President Bush signed into law the first expansion of the Family and Medical Leave Act (FMLA) since its enactment in 1993. These new changes to the FMLA, which we initially discussed in our December 20, 2007 alert, expand the FMLA in two ways: they grant leave to employees who have a family member on or called to active duty service and to workers who need leave to care for family members wounded during military service.
Active Duty Leave
The new legislation requires that employers provide up to 12 weeks of unpaid FMLA leave to immediate family members (spouses, parents and children) of members of the military (including the reserves and National Guard) who are either on active duty service or called to active duty service in support of a military operation or during a national emergency. More specifically, the entitlement to leave is triggered by a “qualifying exigency” arising from the active duty service or call to service. The Secretary of Labor will issue regulations defining the kinds of “qualifying exigencies” that trigger the right to this new leave.
Leave to Care for Wounded Service Members
The new law also requires employers to allow immediate family members (spouses, parents and children) as well as next of kin (nearest living blood relative) of a service member who suffers a serious injury or illness while in military service up to 26 weeks of FMLA leave to care for that service member upon return from service.
Total Amount of Leave Available
Employees will be limited to a maximum of 26 weeks of leave per year for all reasons covered by the expanded FMLA (the existing reasons for leave and the two new bases for leave).
Certification Requirements
Employees seeking leave may be required to provide certification of a call to active duty or certification that they are needed to care for a seriously injured service member.
Application of Other FMLA Provisions
Most of the provisions of the FMLA – including employer coverage, employee eligibility requirements, health insurance continuation and reinstatement rights – remain unchanged and will apply to these new types of FMLA leave. As with other kinds of FMLA leave, employers can use these new types of leave on an intermittent basis or in the smallest increment that the employer’s payroll system tracks. Employers may require employees to take paid leaves in connection with these two new types of FMLA leave just as with existing FMLA leave.
Effective Date
The Department of Labor (DOL) has released a guidance stating that the caregiver provision of the law is effective as of January 28, 2008; employers should begin granting this leave to qualifying employees immediately. The provision concerning leave in connection with a call to active duty will not be effective until the Secretary of Labor issues final regulations defining the kinds of “qualifying exigencies” that entitle employees to leave. Also, the DOL intends to issue regulations implementing the new leave provisions.
We will keep you updated on these regulations. In the interim, the DOL encourages employers to provide this type of leave to qualifying employees.
For more information, email Todd D. Steenson at todd.steenson@hklaw.com or call toll free, 1.888.688.8500.
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