February 21, 2008

New FMLA Rules for Families of Military Personnel (Employment Law)

In 1993, Congress passed the Family Medical Leave Act which, in a nutshell, requires companies that employ 50 or more employees to provide up to 12 weeks of unpaid leave within a one-year period to employees (a) who have sustained serious illnesses and injuries; (b) who care for a family member suffering a serious injury or illness; or (c) who have a newborn or adopted child.   On January 28 of this year, Congress amended the Family Medical Leave Act by enacting the National Defense Authorization Act of 2008. 

The NDAA extends the full scope of FMLA protection to family members of military service people who provide care for these soldiers.  The family members who qualify for this new statutory benefit include soldiers’ children, spouses, parents and even their “next-of-kin.”  The health circumstances under which the benefit is accorded include situations where the related soldiers are (a) undergoing medical treatment; (b) undergoing recuperation or therapy; (c) temporarily disabled due to illness or injury; or (d) are otherwise characterized as on “outpatient status.”  

Perhaps the most significant addition offered by the NDAA is a new qualifying basis for affording FMLA leave rights -- Specifically, “any qualifying exigency” relating to whether the related soldier is on active military duty or has been informed of an impending call to active military duty, in support of a contingency operation.  (The U.S. Department of Labor is expected to better clarify what constitutes “qualifying exigencies” in its anticipated regulations to be set forth in Title 29 of the Code of Federal Regulations.)  A “contingency operation” is defined as a war, national emergency or any operation in which members of the armed forces may become engaged in military actions against an opposing military force.

As with all FMLA leaves prior to the NDAA amendment, the new leave benefit may be taken by the employee family member on an “intermittent” or “reduced schedule” basis.  However, the U.S. Department of Labor charges employees seeking such leave with a duty to make reasonable efforts to schedule intermittent or reduced-schedule leaves in such a way as to avoid unduly disrupting the employer’s business operations (29 C.F.R. §825.203).

Employers subject to the FMLA have a duty to post these recent changes in the workplace (29 C.F.R. §§ 825.300, 825.301).  For your convenience, I have provided a link to a U.S. Department of Labor webpage that offers a circular designed to serve this purpose: http://www.dol.gov/esa/whd/fmla/NDAAAmndmnts.pdf
Furthermore, it would be prudent to update any company employee manuals or employee handbooks that address FMLA issues so that they comport with the NDAA amendment.

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