FMLA Expanded to Provide Leave for Exigencies and Family Care for Injured Military

By Willard Krasnow, Esq.

On January 28, 2008, the Family and Medical Leave Act (“FMLA") was expanded when President Bush signed into law the National Defense Authorization Act for Fiscal Year 2008. As further explained, that Act included military-related amendments to allow FMLA leave for a qualifying exigency and to care for injured family members. These changes are effective immediately. The Department of Labor (“DOL") has not yet released implementing regulations that are necessary, in particular to define the term “qualifying exigency." However, DOL has announced that it will issue regulations and guidance for employers as soon as possible. In the meantime, DOL has requested that employers “act in good faith" to provide FMLA leave to eligible employees.

The Two New Forms of FMLA Leave Are as Follows:
First, the Act provides a new category for the customary 12 workweeks of leave available under FMLA to employees. This new category applies where a “qualifying exigency" occurs because a spouse, son, daughter or parent is on active duty or has been notified of an impending call to active duty. What constitutes a “qualifying exigency" is not defined and the Act provides that the term will be determined by DOL regulations.

Second, twenty-six workweeks of FMLA leave—more than double the 12 workweeks normally available under FMLA—is to be provided to a spouse, son, daughter, parent or next of kin to care for a covered servicemember. A covered servicemember is defined as a member of the Armed Forces who is undergoing medical treatment, recuperation or therapy, is otherwise in outpatient status, or is on the temporary disability retired list for a serious injury or illness. This type of leave is available only during a single 12-month period. Further, where this twenty-six workweek period of leave applies, the total leave time available under FMLA during a single 12-month period is twenty-six workweeks, be it under these new changes or the original FMLA grounds for leave.

In all other respects, the standard FMLA rules and requirements apply, including the employer’s right to require an employee to use paid leave time while on leave.

All Employers who are covered by the FMLA should be aware of these new expansions to FMLA leave, should review their FMLA policy and forms and have them revised in order to comply with the new law.

Willard Krasnow is a partner with the firm of Hinckley AllenSnyder LLP Attorneys at Law. This article was reprinted with permission.