FMLA Includes Leave for Military Servicemembers Families

By Craig M. Brooks

President Bush, on Monday January 28, 2008, signed into law the first expansion of the Family Medical Leave Act to provide leave for military servicemember families. Under the new law, an FMLA covered employee is now entitled to the following:

FAMILY MEMBER MILITARY DUTY EXIGENCY LEAVE
An employee whose spouse, son, daughter or parent is on active duty, or has been notified of an impending call or order to active duty in the Armed Forces is entitled to up to 12 workweeks of leave during any 12 month period because of any qualifying exigency (as the Secretary of the Department of Labor (DOL) by regulation shall determine) related to or affected by the family member’s call up of service.

CAREGIVER LEAVE FOR INJURED SERVICEMEMBER
An employee who is the spouse, parent, son, daughter or "next of kin" (defined as the nearest blood relative) of a covered servicemember injured or recovering from an injury or illness incurred in the line of duty is entitled to up to 26 workweeks of leave during any 12 month period to care for the servicemember.

A "covered servicemember" means a member of the Armed Forces, including a member of 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.

While these amendments create new leave entitlements they do not change many of the basic requirements of the FMLA, which will now also apply to these new types of leave such as employer threshold coverage requirements, eligibility requirements, reinstatement rights, health insurance continuation rights, incremental leave rights and substitution of paid leave rights.

The DOL has taken the position that Military Caregivers’ Leave is effective as of January 28, 2008, when the President signed, but the Exigency Leave will not be effective until the DOL issues final regulations defining "any qualifying exigency." The DOL has told us they do not have a target date yet for issuing those regulations. In the interim, the DOL is encouraging employers to provide this type of leave to qualifying employees.

With these changes comes the need for revision and reissuance of employer FMLA policies, FMLA forms and procedures. It is also important for employers to train their supervisors on the changes and to communicate the new changes in the FMLA to their employees.

If you have questions about these new amendments or if you need assistance in revising your FMLA policy and related forms to comply with this new law, please contact Craig M. Brooks.