Jan. 28, 2008 New Federal Law Expands FMLA - Relatives Of Injured Servicemen And Women Provided Up To 26 Weeks Of Protected Leave

Yesterday, President Bush signed into law the "National Defense Authorization Act," which expands the Family and Medical Leave Act (FMLA) to provide two new forms of protected leave for eligible employees with family members serving, or injured during, active military duty. This is the first expansion of the FMLA since it was passed in 1993. [Click here to see a copy of the new law]

"Service Member Family Leave"

What is the basic leave entitlement? Under this first new type of leave, which takes effect immediately, an eligible employee (defined below) who is the spouse, child, parent, or "next of kin" of an injured, "covered service member" may take up to 26 workweeks of unpaid leave in a single 12-month period to provide care for that family member.  "Next of kin" is a new concept for the FMLA and is defined as the closest blood relative of the injured or recovering service member. 

Who is covered? A "covered service member" is any member of the Armed Forces, including 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.  Notably, the covered service member need not have a "serious health condition" as currently defined in the FMLA.  Rather, the individual need only have an injury or illness incurred on active military duty that renders him or her unfit to perform the duties of his or her "office, grade, rank or rating."

Must the employer continue paid health benefits?  Yes.  Although this leave is unpaid, employers are required to continue the employee's existing paid health coverage during the entire period of protected leave, up to 26 weeks. 

May leave be taken intermittently?  Yes.  This leave may be taken intermittently or on a reduced leave schedule when medically necessary.

What type of notice may employers require?  If the need for leave is foreseeable based on planned medical treatment, the employee must provide 30 days prior notice or give notice as soon as practicable.  Under existing regulations, "as soon as practicable" generally means within one or two business days after the employee learns of the need for leave.  Notice of need for leave need not be in writing.

What type of certification may employers require?  Employers may require a written certification from the health care provider of the injured family member or next of kin supporting the need for leave.  The employer may require the same information in the certification that it currently requires of employees seeking leave to care for a family member with a serious health condition.

May an employee extend the 26 weeks of leave for other FMLA-qualifying reasons?  No.  An eligible employee is entitled to this extended FMLA leave only once during a single 12-month period.  Moreover, any other FMLA leave taken during the same 12-month period (e.g., for the employee's own serious health condition, as well as the new "exigency" leave described below) counts toward the employee's annual leave entitlement of 26 workweeks.

What about spouses employed by the same employer?  The new law provides that spouses employed by the same employer are limited to taking a combined total of 26 weeks of service member family leave, or any combination of such leave and traditional FMLA leave, in a 12-month period.

"Family Member Military Duty Exigency Leave"

What is the basic leave entitlement?  Under the second new type of leave, which does not take effect until the Department of Labor (DOL) publishes interpreting regulations, an eligible employee whose spouse, child, or parent is on active duty (or has been notified of an impending call or order to active duty) will be entitled to up to 12 workweeks of unpaid leave in a 12-month period to deal with "any qualifying exigency" related to or affected by the family member's call to service or active duty.  While this amendment to the FMLA is not effective until the DOL issues final regulations which define "any qualifying exigency," the DOL is encouraging employers to immediately provide this type of leave.  Employers should therefore consider granting leave to a qualified employee who asks for time off to help a family member prepare for active duty, even in the absence of a "serious health condition."

Who is Covered?  An employee will qualify for the leave if his or her spouse, child or parent is on active military duty or has been called to active duty in a "contingency" military operation.  A military operation will meet the "contingency" definition if (1) it has been designated by the Secretary of Defense as an operation in which members of the armed forces are involved in military action against an enemy of the United States; or (2) active duty members of the armed forces are called to duty during a war or national emergency declared by the President or Congress.

Must the employer continue paid health benefits?  Although this "exigency" leave is unpaid, employers are required to continue the employee's existing paid health coverage during the entire period of protected leave, up to 12 weeks.

May leave be taken intermittently?  Yes.  This leave may also be taken intermittently or on a reduced leave schedule and a showing of medical necessity is not required.

What type of notice may employers require?  Employees are only required to provide "such notice to the employer as is reasonable and practicable."  We anticipate that the DOL will provide further guidance on this issue in its regulations.

What type of certification may employers require?  It is not yet clear what certification employers may require.  The type and manner of certification that may be required will be established by the DOL in its regulations.

What about spouses employed by the same employer?  The new law does not appear to limit or require aggregation of leave for spouses who are employed by the same employer.

What Should Employers Do?

The DOL is working to prepare more comprehensive guidance regarding these new FMLA leaves.  However, in the interim, it is requiring employers to act in "good faith" in providing the new leaves.  This means that employers should grant an eligible employee's request for leave, if such leave is for a family member serving, preparing to serve, or injured during active military duty.  Employers should also review and revise their FMLA policies and forms, and train their human resources staff and managers on these new types of leave.

This E-Update was authored by Denise Brucker and Brenda Kasper of the firm’s Transactional Practice Group.  For more information, including information on revising your FMLA policies and forms, or providing training to your staff, please contact Ms. Brucker, Ms. Kasper, or any Paul, Plevin attorney at 619-237-5200.