FMLA LEAVE EXPANDED FOR MILITARY SERVICEMEMBERS
By
Jerry P. Cline, Esq.
On January 28, 2008, President Bush signed into law the National Defense Authorization Act (“NDAA”). The NDAA includes a significant expansion of the federal Family and Medical Leave Act (“FMLA”) that covers family members of military service personnel.
Under the FMLA, employers with 50 or more employees must provide a total of 12 workweeks of leave during any 12-month period to all eligible employees for various reasons, including: the birth or adoption of a child; in order to care for the spouse or close relative of the employee who has a serious health condition; or for the serious health condition of the employee which makes the employee unable to perform the functions of his or her job. An eligible employee is one who has been employed for at least 12 months by the employer with respect to whom leave is requested and has provided at least 1,250 hours of service for the employer during the previous 12-month period.
Under the amended FMLA, employers must now provide two new types of FMLA leave:
- Employers must provide 12 weeks of leave due to a “qualifying exigency” arising out of the active military duty (or notification of an impending call or order to active duty) of an employee’s spouse, parent or child; and
- Employers must provide up to 26 weeks during a single, 12 month period to an eligible employee who is the spouse, son, daughter, parent, or next of kin of an injured servicemember for the care of the servicemember.
The two new forms of leave must also be provided on an intermittent basis if certain notice requirements are met.
The Department of Labor has indicated that it will immediately enforce the provision that provides 26 weeks of leave for the care of injured servicemembers but will wait for enforcement of the “qualifying exigency” provision until it issues regulations that define “qualifying exigency.” These regulations are expected in the next few weeks and will likely include childcare issues, among others, as a “qualifying exigency.”
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