Recent Changes to the FMLA: Addition of Military Leave

The Family and Medical Leave Act (FMLA), which became effective on August 5, 1993, provides eligible employees with up to 12 work weeks of unpaid leave per year. On January 28, 2008, President George W. Bush signed into law H.R. 4986, the National Defense Authorization Act for FY 2008 (NDAA), Pub. L. 110-181, which amends the FMLA. The final regulations associated with this amendment were recently issued.

The FMLA applies to all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees. These employers must provide an eligible employee with up to 12 weeks of unpaid leave each year for any of the following reasons:

. for the birth and care of the newborn child of an employee;

. for placement with the employee of a child for adoption or foster care;

. to care for an immediate family member (spouse, child, or parent) with a serious health condition; or

. to take medical leave when the employee is unable to work because of a serious health condition.

The amendments to the FMLA have enacted widespread changes in its provisions which include, but are not limited to, the notice provisions, the certification requirements, and the definition of "continuing treatment." This article, however, will focus on the two new types of leave which have been added to the FMLA: qualifying exigency leave and leave to care for an injured or ill service member.

Qualifying Exigency Leave

The NDAA permits an employee to take FMLA leave for "any qualifying exigency aEUR| 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." Qualifying exigency leave must fit into one of the following categories:

. When the service member has received a week or less notice of deployment;

. For military events and related activities;

. For urgent (as opposed to recurring and routine) child-care and school activities;

. For financial and legal tasks to deal with a family memberaEUR(TM)s active duty;

. For counseling for the employee or child who is not already covered by FMLA;

. To spend time with the covered service member on rest and recuperation breaks during deployment;

. For post-deployment activities; and

. For other purposes arising out of the call to duty, as agreed upon by the employee and employer.

Employees seeking qualifying exigency leave must give reasonable and practicable notice if the exigency is foreseeable. The employee must inform the employer that a family member is on active duty or called to active duty status, cite a listed reason for the leave, and give the anticipated length of absence. Family members are defined broadly. A son or daughter on active duty, for example, includes an employeeaEUR(TM)s biological, adopted, or foster child, stepchild, legal ward, or one for whom the employee stood in loco parentis, regardless of age. Employers may require certification for qualified exigency leave by requiring the employee to provide a copy of the service memberaEUR(TM)s active duty orders.

An employee may take qualified exigency leave if an adult child is called to active duty whereas other types of FMLA leave allow employees to take leave for a child only if the child is either under the age of 18 or is 18 or older and unable to care for him or herself. Qualifying exigency leave is available only for members of the Reserve, the National Guard, and certain retired members of the Reserve and regular armed forces. It does not apply to family members of the regular armed forces on active duty status.

Leave to Care for Injured or Ill Service Member

The recent amendments also created a new entitlement for family members who need to care for a seriously ill or injured service member. These employees can take up to 26 work weeks of leave in a single 12-month period. The employee may be a spouse, parent, child, or next of kin of a service member who is in the regular armed forces, Reserves, Guard, or anyone in those categories on a temporary disability retired list (TDRL).

The service member must have a serious illness or injury incurred in the line of duty on active duty, as determined by the Department of Defense, that renders him/her medically unfit to perform the duties of his office, grade, rank, or rating and for which he/she is undergoing medical treatment, recuperation, therapy, or outpatient treatment or is on TDRL.

Employers may require certification of the need for caregiver leave from specific military health care providers. As in the case of defining a son or daughter, aEURoeparentaEUR? is defined broadly but does not include in-laws. aEURoeNext of kinaEUR? is defined as categories of blood relatives, in order of priority, but the service member may make a written designation of a specific blood relative as next of kin, and that will control.

There is a separate aEURoeFMLA yearaEUR? for military caregiver purposes, beginning with the first date of caregiver leave and ending 12 months later. The 26 weeks of caregiver leave may be taken in a single block or on an intermittent basis. The military caregiver entitlement is determined per service member and per injury. The 26-week entitlement may not be carried over from year to year. Employees seeking caregiver leave must follow existing FMLA notice rules, including the requirement to work with employers to schedule leave without unduly disrupting operations.

Advice to Employers

With these changes to the FMLA, we recommend that all FMLA-eligible employers review and update their employment handbooks and policies to incorporate these changes to the Act. All individuals who handle FMLA-related matters should be educated about these changes so as to ensure compliance. All required notices should be posted in the workplace. Overall, it is important that all levels of management and staff be aware of these changes, as well as the remainder of the changes effectuated by the recent amendments, so as to avoid unnecessary liability.

Sunshine Miller is an associate attorney at MDWCG, who can be reached at (717) 651-3701 or sjmiller@mdwcg.com.

Recent Changes to the FMLA: Addition of Military Leave

By Sunshine J. Miller, Esq.*