FMLA Now Covers Families of Military Personnel; Labor Department Proposes New FMLA Regulations

Employers should prepare themselves for significant changes to the Family and Medical Leave Act of 1993 (FMLA). On January 28, 2008, President Bush signed into law the National Defense Authorization Act for FY 2008 which includes language extending FMLA benefits to families of military personnel. A similar defense authorization bill was originally passed by Congress in December 2007 but was vetoed by President Bush due to objections unrelated to the FMLA language. Upon reconvening this January, Congress quickly passed an almost identical bill which addressed the issues that led to President Bush's prior veto. Except as noted below, the amendments to the FMLA take effect immediately.

Current Statute

Currently, eligible employees are entitled to up to 12 workweeks of unpaid FMLA leave during any 12-month period for one or more of the following reasons: (1) birth of a child of the employee and in order to care for such child; (2) placement of a child with the employee for adoption or foster care; (3) in order for the employee to care for his or her spouse, son, daughter, or parent who has a serious health condition; or (4) the employee's own serious health condition.

What will change?

New entitlement. Notably, the FMLA is amended to include a fifth entitlement to leave. Employees are entitled to 12 workweeks of leave because of any "qualifying exigency" arising out of the fact that the employee's spouse, child, or parent 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." The term "contingency operation" includes military actions as designated by the Secretary of Defense involving hostilities against an enemy of the United States or other calls to duty during times of war or national emergency. The term "qualifying exigency" is not defined in the statute. The Department of Labor has been directed to promulgate regulations defining what constitutes a "qualifying exigency," and has said that "qualifying exigency" leave will not take effect until it has issued those regulations.

Servicemember Family Leave. The new legislation also provides for "Servicemember Family Leave" which entitles an eligible employee who is a spouse, child, parent, or next of kin of a covered service member to a total of 26 workweeks of leave during a 12-month period to care for the covered service member. "Covered service members" are those members of the Armed Forces, including the National Guard or Reserves, who are undergoing medical treatment, recuperation or therapy, are in outpatient status, or are on the temporary disability retired list due to an injury or illness incurred in the line of duty. The statute defines "next of kin" as the nearest blood relative of the covered service member. The new legislation also provides that, with proper certification, an employee may take this type of leave on an intermittent basis or pursuant to a reduced leave schedule.

During any 12-month period, an eligible employee is entitled to a maximum combined total of 26 workweeks of leave under the new Servicemember Family Leave and any of the now five entitlements to 12 workweeks of leave.

The Department of Labor is in the process of promulgating regulations which will provide employers with further guidance about the new requirements, including the definition of any "qualifying exigency," as well as other topics related to the FMLA. The Department has said that it hopes to issue FMLA regulations before the Bush administration leaves office in January 2009.

Practical Considerations

Employers will have to become familiar with the new concepts of "next of kin," "serious injury or illness" (which has a different definition than the familiar "serious health condition"), and any "qualifying exigency" (once that term is defined). Because the new legislation amends the 1993 Act, the current FMLA requirements, such as those regarding reinstatement to the previous position, substitution of paid leave, and notice, apply to the new forms of leave. Since the Servicemember Family Leave is effective immediately, employers should begin the process of notifying their employees of the new leave provisions and revising their leave policies. We will provide further updates as additional information becomes available.