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OHR 2008-017 - Family and Medical Leave Act Changes

On January 28, 2008, President Bush signed into law the National Defense Authorization Act (H.R. 4986) which provides funding for the military in 2008 and contains various other provisions addressing the needs of the military and service members.  This Act also includes an expansion of the Family and Medical Leave Act that creates new leave entitlements for employees who have a family member called to active duty in the Armed Forces, including the National Guard or Reserves, or whose family member is injured while on active military duty. 

These FMLA provisions are effective as of January 28, 2008.  Because the changes raise some other important questions, the U.S. Department of Labor is expected to provide additional regulatory guidance as early as April, 2008. 

Specifically, the new provisions require covered employers to permit employees already eligible for FMLA leave:

• To use any of their 12 weeks of FMLA eligibility to take leave because of any “qualifying exigency” (a term the Department of Labor will define through regulations) arising out of the fact that the spouse, 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 an operation against opposing military forces, a declared war, or a declared national emergency;
• To take up to 26 weeks of leave during a single 12-month period to care for a spouse, son, daughter, parent or next of kin who suffers a serious injury or illness while on active duty in the Armed Forces, including the activated National Guard or Reserves.

Leave taken for a “qualifying exigency” due to a qualifying family member’s military activation may be taken intermittently or on a reduced leave schedule.  By contrast, leave to care for an injured service member may be taken intermittently or on a reduced leave schedule only when medically necessary.  In either case, almost all of the other restrictions and obligations associated with FMLA leave apply. 

The Office of Human Resources will provide additional guidance about this matter as it becomes available.  In the meantime, if an employee requests FMLA leave under one of these new provisions, please contact Brett Morris before making any decisions.