Honoring Military Service: FMLA Expansion Provides New Protections for the Families of Service Members
On January 28, 2008, President Bush signed the 2008 Defense Authorization Act (H.R. 4986), which became effective immediately and expanded the Family and Medical Leave Act (FMLA). This new law allows eligible employees to take FMLA leave for exigencies related to active duty military service or to care for family members injured while serving in the armed forces.
The FMLA expansion provides new protections for employees in two areas. First, eligible employees may take up to 26 weeks of leave in a single 12-month period to care for family members injured during military service. A “spouse, son, daughter, parent, or next of kin” may take this leave to care for a member of the armed forces, including the National Guard or Reserves, suffering from a serious injury or illness. “Serious injury or illness” means an injury or illness incurred on active duty in the armed forces that may render the service member medically unfit to perform the duties of his or her office, grade, rank, or rating. Under the new law, when this “Servicemember Family Leave” is used, the total amount of FMLA leave taken in any 12-month period may not exceed 26 weeks.
The FMLA expansion also provides a new basis for an employee to take 12 weeks of FMLA leave. An employee may take FMLA leave for “any qualifying exigency” arising out of the fact that the spouse, son, daughter, or parent of the employee is on active duty or has been notified of an impending call to active duty in the armed forces. The Department of Labor (DOL) has not yet issued regulations defining these qualifying exigencies. When the need for Active Duty Leave is foreseeable, the employee is required to provide the employer with reasonable and practicable notice.
Many provisions of the existing FMLA laws also apply to these new areas. Both the Service Member Family Leave and Active Duty Leave may be taken intermittently or on a reduced leave schedule. As with other types of FMLA leave, an employer may require its employees to use available paid time off concurrently with FMLA leave. Employers may require a certification of need for Active Duty FMLA leave. The DOL has not yet defined what such a certification would consist of. An employer may also require a certification from a health care provider for Service Member Family Leave.
Although the new FMLA law is effective immediately, the specific requirements for employers will not be clear until the DOL issues new regulations. In the meantime, employers should be aware of leave requests that might qualify as Active Duty Leave or Service Member Family Leave.
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