Family & Medical Leave Act Expanded

The very first piece of legislation signed by President Bill Clinton, the Family and Medical Leave Act (FMLA) established the right to take 12 weeks of leave from your job if you have worked for a covered employer for at least a year and have worked 1250 hours. From an administrative point of view, even with 15 years of history, there remain significant vaguaries with the statute. Late last month, the statute was made more broad and more vague.

The National Defense Authorization Act (NDAA) signed into law by President Bush on January 28, 2008 (HR 4986) has amended the FMLA by creating two new categories of leave in addition to those already covered:

An employee can take up to 26 workweeks of leave to care for a seriously injured or ill family member serving in the military, and employees can take up to 12 workweeks of leave to deal with emergencies or necessities - "qualifying exigency" - arising out of a family member's active duty in the military.

The amendment is silent on when this expansion goes into effect and, as such, the Department of Labor (DOL), the department responsible for overseeing compliance with the FMLA, reported on their website today that the department is taking the position that it is effective on January 28, 2008, however the expansion related to emergencies or necessities will not take effect until the department can define what those may be.

The provision increasing leave to 26 weeks expands the leave to which a family member would otherwise be entitled if that family member has a "serious health condition" while in the line of duty on active duty and expands the definition of family member to "next of kin" defined as "nearest blood relative of that individual."

Also created in this legislation is the term "covered service member:" which is "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."

For purposes of this expanded leave "serious injury or illness" is defined to be an illness or injury incurred in the line of active duty that "may render the [service] member medically unfit to perform the duties of that member's office, rank, grade, or rating." This does not limit the coverage to those in active war theatres or engaged with enemy combatants, and therefore means the new legislation is applicable to service members regardless of deployment or assignment.

The expansion of the act to cover the active duty of the spouse, or a son, daughter, or parent of the employee as qualifying for the FMLA refers to "qualifying exigency" related to being called to active duty on a "contingency operation" as being the trigger for eligibility of leave. While "qualifying exigency" is not defined in the statute, "contingency operation" is defined elsewhere in the US Code as an operation where service members may become involved in actions, operations, hostilities or the call to order or retention of active duty members of the armed forces, or "any other provision of the law during a ward or during a national emergency declared by the President or Congress."

Until regulations are issued, employers will be expected to act in "good faith" around questions of granting this leave, and the DOL recommends employers use existing FMLA or "FMLA-type" procedures in determining leave applicability.

RESOURCES

FMLA, Title I as Amended, URL: http://www.dol.gov/esa/whd/fmla/fmlaAmended.htm retrieved February 6, 2008 (amendments appear in bold face font)

The Family and Medical Leave Act and National Defense Authorization Act for FY 2008 URL: http://www.dol.gov/esa/whd/fmla/NDAA_fmla.htm, retrieved February 6, 2008