New FMLA Policy
Issue #43
February 11, 2008
The President recently signed the National Defense Authorization Act for Fiscal Year 2008, which includes, among other things, the first expansion of the Family and Medical Leave Act (FMLA) since that law was enacted in 1993. The law requires FMLA leave for two new qualifying events: (1) to care for a family member who is injured while on active duty (called “servicemember caregiver leave”); and (2) for urgent needs related to a family member’s current active military duty or a call to active military duty (called “servicemember family leave”).
Servicemember Caregiver Leave
The law modifies the FMLA by adding that the spouse, child, parent, or “next of kin” (defined as the “nearest blood relative”) of a “covered servicemember” is entitled to a total of 26 workweeks of leave during a 12-month period to care for the servicemember. “Covered servicemember” means a servicemember who is “undergoing medical treatment, recuperation, or therapy, is otherwise in an outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.” “Serious illness or injury,” in turn, is defined as a condition that may render the servicemember “medically unfit to perform the duties of the member’s office, grade, rank, or rating.” This leave is only available during a single 12-month period, and the 26-week limit would include any leave granted pursuant to the new “qualifying exigency” provision.
Servicemember Family Leave
The law provides a new qualifying event for the 12-weeks of FMLA leave: a “qualifying exigency’ (to be determined by the Secretary of Labor) arising out of the fact that the employee’s spouse, child or parent 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. When an employee requests leave for a qualifying exigency and the necessity for the leave is foreseeable, the employee must provide the employer with “reasonable and practicable” notice. Additionally, an employer may require that a request for leave for a qualifying exigency be supported by a certification that the service member is on active duty or has been called to active duty.
Notice of Amendment to the FMLA
Employers need to implement measures to comply with the new FMLA amendments as soon as reasonably possible, although compliance will be challenging until regulations are issued.
The current FMLA regulations require that an employer have a written FMLA policy. Those existing regulations apply to the new types of leaves. However, until regulations specific to the new types of FMLA leave are issued, it may be best to prepare a separate policy on the new types of leave and post it adjacent to existing Department of Labor FMLA posters.
Free for the Asking . . . .
I can send you a “Notice of Amendment to the Family and Medical Leave Act” poster for temporary use until a revised DOL poster is made available. Send your request to ed@kempkey.com , or call me at (888) 536-7539 extension 2188.
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