On January 28, 2008, President Bush signed the National Defense Authorization Act. While this law was primarily intended to address concerns over litigation surrounding the Gulf War, one section of the bill included provisions extending Family Medical Leave Act (FMLA) protection to close family relatives of uniformed service members. This is the first major revision to the FMLA since its enactment in 1993 and it expands the coverage of the law in three important ways.
1. Creation of a new qualifying event. Prior to the current law’s passage, the FMLA’s qualifying events included leave for: 1) The birth of a child to the employee or the employee’s spouse; 2)The placement of a child with the employee for adoption or foster care; 3) The need to care for a spouse, son, daughter, or parent with a “serious health condition;” and, 4) A “serious health condition” that makes the employee unable to perform his or her job functions. The amended law creates a fifth qualifying event allowing an employee to take up to 12 weeks of FMLA leave “because of any qualifying exigency arising out of the fact that the spouse, or a son, daughter, or parent of the employee” is on or has been called to active duty in the Armed Forces in support of a “contingency operation” (generally a war or similar combat operation.) While the phrase “qualifying exigency” was not defined, regulations defining this term will likely be issued in the coming weeks.
2. Extension of the amount of leave under certain circumstances. FMLA leave is generally for twelve weeks in any given 12-month period. However, the new law provides that an eligible employee who is the primary care giver of a service member with a “serious injury or illness” incurred in the line of active duty may now take up to 26 weeks of FMLA leave in a single 12-month leave year to care for the service member. A ‘serious illness or injury” is defined as an illness or injury incurred in the line of duty that may render the service member medically unfit to perform the functions of the member’s office, grade, rank or rating. We can expect further clarification on what this means from the upcoming regulations.
3. New category of employee entitled to leave. Under the old FMLA, leave was only available to employees who were the spouse, son, daughter, or parent of someone needing care. Now, the “next of kin” is entitled to take FMLA leave for this purpose. This phrase has been defined as the nearest blood relative to the service member. Further clarification should be forthcoming from the regulations to be issued.
New Corrective FMLA Regulations on the Horizon
The Department of Labor also recently sent proposals for revised FMLA regulations to the Office of Management and Budget. While this review could take several months, after completion the proposed regulations will be printed in the Federal Register for public comment.
While we will not know what the substance of the changes will be until they have been published in the Federal Register, the most substantial areas of concern prompting the revisions included unscheduled intermittent leave, employee notice, medical certification, the interaction between the FMLA and the ADA, and the definition of a serious health condition. In all likelihood, the regulations will also respond to sections that have been ruled to be invalid by the courts, including provisions dealing with coordination of dates of leave approval and when leave actually begins, joint employment issues and prospective waiver of FMLA rights.
These new revisions to the FMLA will be clarified in the near future. However it is important that if an employee requests leave in connection with a close relative who is a uniformed service member, you should be especially mindful of the request and give it due consideration. Make sure that your company coordinates these new forms of leave with other accepted forms of FMLA leave and educate your front-line supervisors so that they will not automatically dismiss requests for leave under these circumstances.
Trey has made it his professional mission to assist clients in maximizing employee relations and minimizing employee claims. This means being attentive to a client's needs and providing the type of advice that will fit within the framework of an individual client's own philosophy.