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RECENT AMENDMENTS TO FMLA FOR FAMILIES OF MILITARY PERSONNEL

On January 29, 2008, President Bush signed the National Defense Authorization Act.  The legislation significantly amends the Family Medical Leave Act, 29 U.S.C. § 2601 et seq (“FMLA”) to provide generous leave to families of military personnel called to active duty or injured in the line of duty.  Pursuant to the amendments, any employer previously covered by the FMLA (i.e. any person engaged in commerce with 50 employees or more) will be required to comply with the new provisions.  The legislation includes two significant changes to the FMLA.  The first, which we have labeled the “Active Duty Leave,” is much broader and less well-defined at this point and will not go into effect until more legal guidance is set forth; the second, which we have termed the “Caregiver Leave,” will have much more limited and precisely determined application but will go into effect immediately.

Active Duty Leave
First, the FMLA amendment will permit eligible employees to take up to 12 weeks of unpaid FMLA leave for any “qualifying exigency” if they have a spouse, son, daughter or parent who 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.”  While the parameters of this leave requirement are yet to be defined, the goal of this section appears to be to permit employees to spend time with their family member who will serve in a military action or to care for the family members of military personnel who are called to active duty. For example, the new law would seem to permit an employee to take leave to spend time with a spouse who has been notified of a call to active duty or for a parent to care for the needs of grandchildren when the employee’s son or daughter has been called to active military service.  Importantly, neither the employee nor the servicemember must suffer from any kind of medical injury or illness in order for the employee to qualify for active duty leave.  Just as with other types of FMLA leave, the employee may take the leave in one block, by reduced leave schedule or intermittently during the designated 12-month period.  If the employee’s need for this kind of qualifying leave is foreseeable, the employee must provide notice to his or her employer as is reasonable and practicable.  The Active Duty leave provision does not take effect until the Secretary of Labor defines the phrase “qualifying exigency.” Additionally, the Secretary of Labor has been given the option of establishing standards for certification related to Active Duty leave.  If the Secretary sets such standards, and after the Active Duty provision takes effect, an employer may (and should) require that its employees provide certification that their spouse, son, daughter or parent has been called to active duty in support of a contingency operation.  However, while the Department of Labor is preparing the necessary regulations, employers are encouraged to voluntarily provide active duty leave to qualifying employees. Again, this leave requirement appears broadly aimed at helping employees cope with family needs and emergencies created by the call to active military duty faced by a spouse, child or parent.

Caregiver Leave
Second, under the new legislation, employers will be required to permit eligible employees who are the spouse, son, daughter, parent or next of kin of a “covered servicemember” to take up to 26 weeks of FMLA leave during a designated 12-month period to care for the servicemember who has suffered a “serious injury or illness” in the line of duty, which may render the member unable to perform the duties of the member’s office, grade, rank or rating.  Significantly, “serious injury or illness” is distinct and different from the FMLA’s definition of “serious medical condition” and must be sustained in the line of duty.  However, during the 12-month period employees are entitled to a combined total of 26 weeks and may not add together the 12 and 26 weeks permitted under the new legislation to get more than 26 weeks leave in the designated 12-month period.  The amendment’s caregiver provision applies to the servicemember’s “next of kin” which is defined as “the nearest blood relative of that individual.”  Importantly, just as previously required by the self-care and “serious medical condition” forms of FMLA leave, an employer may (and should) require a certification of need for the Caregiver Leave. The Caregiver Leave provision is effective immediately.  The Department of Labor is working to prepare more comprehensive guidance on the caregiver provision, but until such regulations are in place, employers are required to act in good faith to provide this leave to their employees. In providing Caregiver Leave to their employees, employers should follow preexisting FMLA procedures (e.g. procedures for substituting paid leave for FMLA leave).

The same protective provisions in the current FMLA - prohibiting interference and discrimination by the employer against the employee for exercising the employee’s FMLA rights - apply to both the new leave provisions  Employers may encounter issues coordinating the new FMLA provisions with state laws requiring employers to provide military leave to employees. See http://www.boselaw.com/updates/labor_updates/military-leave.pdf.

More FMLA Changes to Come
Employers will see even more revisions to FMLA law in the coming months.  On January 24, the Department of Labor announced that it had proposed new regulations interpreting the FMLA to the Office of Management and Budget.  Following the OMB’s review, which is likely to take several months, the proposed regulations will be published the Federal Register for public comment.  The content of the proposed regulations is largely unknown; however, the changes are expected to respond to court decisions invalidating or questioning old Department of Labor regulations.  For example, the new regulations are expected to implement the Supreme Court’s holding in Ragsdale v. Wolverine World Wide Inc. 535 U.S. 81 (2002).  There, the Supreme Court invalidated the penalty in 29 CFR § 825.700(a) which provided that an employer’s failure to timely notify employees that their qualifying leave was designated as FMLA meant that the leave could not count against an employee’s 12-week leave entitlement.  The Court held that absent a showing of actual prejudice to the employee the provision was unenforceable.

Written by David Swider and Emily Yates, Bose McKinney & Evans Labor and Employment Group.