It’s Official – on January 28, 2008, President Bush signed into law the first legislative expansion of rights under the Family and Medical Leave Act since its enactment in 1993. The expansion of FMLA is part of the National Defense Authorization Act (NDAA). The new provisions, like the old, will continue to be enforced by the Department of Labor, Wage and Hour Division.
The NDAA amendments create two new FMLA-qualifying events for eligible members of military families:
1. A one-time leave of up to 26 weeks during a 12-month period for spouses, parents, or children, or “next of kin,” to care for a family member who develops a “serious injury or illness” while serving in the military. This portion of the law is effective immediately. “Serious injury or illness” is defined as “an injury or illness incurred by the member in line of duty on [sic] active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating.” The Department of Labor is to provide more specific guidance, but, in the meantime, employers should respond in good faith to requests for this type of leave and should follow the “old” FMLA regulations regarding notice requirements, substitution of paid leave, and the like.
2. Provides twelve weeks of FMLA leave for a “qualifying exigency” to spouses, parents, or children of service men and women who are “on active duty (or [have] been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.” Please note that this portion of the law is not effective until the Department of Labor issues regulations defining “qualifying exigency,” so employers can breathe easier about that provision . . . maybe. However, the Department of Labor recommends in the meantime that requests for such leave be granted (even though we are waiting to learn what a “qualifying exigency” is).
These provisions cover the Reserve and National Guard duty. Should these new requirements under FMLA raise concerns for you business, please seek legal advise on implementation and coordination with your business.
Kelli Hill is an associate of Constangy, Brooks & Smith in the Macon office. Constangy, Brooks & Smith limits its practice to labor and employment law counseling to management and has done so, exclusively, since 1946, when it was founded in Atlanta, Georgia. Constangy, Brooks & Smith, now has thirteen offices in nine states and represents management throughout the United States.