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Legal Updates

FMLA Expansion Effective Immediately

On January 28, 2008, President Bush signed legislation to expand the Family and Medical Leave Act (“FMLA”) to include “service member family leave.”  This FMLA amendment is effective immediately.

Under the new service member provisions, eligible employees may:  (a) use their twelve (12) weeks of FMLA leave in certain circumstances when a spouse, child or parent is on, or called to, active duty in the United States military (“Active Duty Family Leave”), and (b) extend their FMLA leave to twenty-six (26) weeks in order to care for a spouse, child, parent or next of kin who suffers a serious injury or illness in the line of duty for the United States military (“Injured Service member Leave”).

Although the specific circumstances in which Active Duty Family Leave may be used are to be determined by the United States Department of Labor (“DOL”) through regulations to be published soon, the FMLA now permits eligible employees to take FMLA leave for “any qualifying exigency (as the Secretary [of Labor] shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee 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.”  DOL encourages employers to provide this type of leave to qualifying employees during the interim before the regulations are finalized.

The key features of Injured Service member Leave are as follows:

  • This leave is limited to “a single 12-month period,” a limitation that the DOL is expected to clarify in its implementing regulations.
  • This leave applies to the care of Armed Forces members, National Guard members and Reservists who are undergoing medical treatment, recuperation or therapy, are in medical hold or medical holdover status, or are on the temporary disability retired list for a serious injury or illness.
  • A covered condition is any injury or illness incurred in the line of duty while on active duty “that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating.”
  • Employees are eligible for this leave if they are a service member’s next of kin, defined as closest blood relative, a broader category than the FMLA has previously recognized.
  • The combined total amount of Active Duty Family Leave and Injured Service member Leave that may be taken is twenty-six (26) weeks during a twelve (12) month period.

With respect to both Active Duty Family Leave and Injured Service member Leave, eligible employees may take the leave intermittently or on a reduced leave schedule; employees may elect, or employers may require, that accrued paid leave be substituted for unpaid leave; and employers are not required to provide paid sick leave or paid medical leave in any situation in which the employer would not normally provide such paid leave.

The new legislation does not specify whether, or the extent to which, it is intended to be coordinated with the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) or state leave laws.

The Department of Labor is preparing comprehensive guidance regarding rights and responsibilities under this FMLA amendment.  In the interim, the government will require employers to act in good faith in providing leave under the new legislation.  We encourage covered employers to promptly comply with this amendment to the FMLA and to revise FMLA policies accordingly.  We are available to answer questions and to assist with compliance efforts.