President Bush Signs Legislation Expanding FMLA

Posted on January 29, 2008

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On January 28, 2008, President Bush signed the National Defense Authorization Act for Fiscal Year 2008 (H.R. 4986) that includes provisions that will amend the Family and Medical Leave Act (FMLA) to allow eligible employees to use leave in certain circumstances when their spouse, child or parent is called for active military duty.

One of the FMLA-related provisions in the legislation will allow employees to
take leave "because of any qualifying exigency 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."

The other FMLA-related provision amends the FMLA to give more leave to employees whose family members are injured while serving in the military.  The provision reads:  "An eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered service member shall be entitled to a total of 26 workweeks of leave during a 12-month period to care for the service member.  The leave described in this paragraph shall only be available during a single 12-month period."

A covered "service member" is defined as a "member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness."   For purposes of this legislation, "serious injury or illness" is defined as "an injury or illness incurred by the member in line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating."

Interestingly, the legislation also creates a new category of eligible employee entitled to FMLA leave to care for an injured service member.  In addition to spouse, son, daughter, or parent, the legislation permits someone who is the "next of kin" to take FMLA leave for this purpose.  Next of kin is defined as the nearest blood relative to the service member.

The FMLA changes do not include an effective date.  Therefore, employers should consider that the leave expansion will take effect immediately.  Officials with the Department of Labor have stated that they will be drafting new regulations and guidelines for the FMLA expansion (see "Labor Dept. Working on Changes for Families Coping With Illness and Military Duty"), but until those regulations define “qualifying exigency,” employers should interpret the term broadly.

N. DeWayne Pope, DeWayne Pope LLC

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Posted in: DeWayne Pope, FMLA