President Bush has signed the first amendment of the FMLA since Congress passed the original law in 1993. As initially drafted, the FMLA requires employers of more than 50 employees to approve unpaid leave for employees. The terms of FMLA leave include up to 12 weeks of time off for eligible employees to care for themselves or a family member’s serious health condition.

The recent amendments are part of the National Defense Authorization Act (H.R. 4986). They were included in the defense bill because they provide new leave benefits for military families in the two circumstances discussed below.

The New FMLA Provisions

The amendments to the FMLA provide for job-protected leave in two distinct circumstances. First, the law guarantees eligible employees up to 12 weeks of leave for “any exigency (as the Secretary of Labor shall, by regulation, determine) 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.”

Second, the law provides eligible employees with leave to care for a family member injured in the line of duty. The leave is extended to “next of kin” who are not covered under traditional FMLA leave.

Leave for a Relative’s Active Duty Status

The new active duty leave provisions will be limited to what the Secretary of Labor defines as a “qualifying exigency.” The law took effect when the President signed it, on January 28, 2008. The U.S. Department of Labor is responsible for defining what “exigency” will qualify under the new law. The DOL is expected to propose regulations within the next few weeks. Until then, employers must carefully consider family members’ requests for leave associated with a qualifying family member’s active duty status.

Employees must provide notice of their intent to take leave due to “active duty . . . as is reasonable and practical.” Because the leave will be available only in exigent circumstances, employers cannot expect much notice for these requests.

Active duty leave will count against the same 12 weeks of FMLA leave employees can take for a medical condition. Consequently, for example, an employee who gave birth to a baby at the beginning of the employer’s leave year and took 12 weeks of family leave for that purpose would not be entitled to additional leave if her husband deployed to Iraq later in the same 12-month period, even if a “qualifying exigency” occurred.

Employers, however, may provide more generous leave than the minimum required amount. So, even if a request does not meet the DOL’s definition of exigency, or exceeds the 12 weeks an employee is entitled to by law, employers may wish to approve a leave request depending on the circumstances.

Leave for Serious Injuries to a Service Member

The new provisions contain strong protections for the family of service members who become injured. First, the active duty leave provisions will allow time off for parents, spouses and children of service members who become “incapable of self-care because of a mental or physical disability” in the unfortunate event of a serious injury. In addition, injured service members are already covered by the FMLA if they have a qualifying serious medical condition that requires care by a spouse, child or parent, if the medical condition is incapacitating.

The new amendments to the FMLA extend the period of time allowed to care for an injured service member to up to 26 weeks, and use a slightly different definition for the qualifying medical condition than the current FMLA. To qualify for the new extended leave, a “covered service member” is one 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.” Although the language is different, both leave provisions appear to cover similar medical conditions. The military provisions also include “recuperation,” apparently even if no further medical treatment is required. In addition, the military provisions refer to the “temporary disability retired list,” an internal military designation.

These provisions may expand eligibility, because the FMLA did not previously cover care for disabilities that either did not preclude work or include ongoing medical treatment.

Traditional FMLA medical leave is available “because of a serious health condition” or “in order to care for the spouse, a son, daughter, or parent of the employee if the [family member] has a serious health condition.” Serious health condition means: “an illness, injury, impairment, or physical or mental condition that involves — (A) inpatient care in a hospital, hospice, or residential medical care facility; or; (B) continuing treatment by a health care provider.”

These differences may be important when considering the military medical system is nationwide, even international. For instance, a soldier from Santa Rosa who is injured in Iraq might be treated at a military hospital in Germany and a Veterans Affairs (VA) hospital in Texas before being released from medical care. The same solider may then need assistance relocating from the hospital, where he might have lived for months or years, to his home, then completing his VA paperwork and arranging veterans’ benefits. Depending on the nature of the injuries and whether ongoing treatment was necessary, moving across country and attending meetings at the VA may not have been covered under the prior language of the FMLA. Under the new amendments, however, these activities would be protected if the service member is “recuperating” or on the “Temporary Disability Retirement List” at the time the request for time off is made.

In addition, the amendments now protect “next of kin,” defined as the nearest blood relative of a service member, to take leave to care for an injured service member. The FMLA previously did not provide any protection for non-parent/child/spouse family members, such as brothers, sisters, cousins, uncles, or grandparents, to care for employees with serious health conditions. (However, the FMLA did protect leave for individuals “in loco parentis” who were not actually the parents of an employee.) The next-of-kin provisions are limited to caring for a seriously-injured service member.

Obviously, employees and employers alike hope this leave provision will never be needed. However, the law is not limited to combat, but rather covers injuries occasioned “in the line of duty.” This is a military term of art, and includes injuries that occur away from the battlefield. Therefore, unless regulations say otherwise, the law may offer protection to service members who are injured under a variety of circumstances unrelated to the Iraq war or other active combat.

Existing Leave Provisions for Service Members and Families

The recent FMLA amendments join the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), and for California employers, recently-enacted California Military and Veterans Code Section 395.10 in protecting the jobs of service members and their families. USERRA guarantees leave and protects the jobs for up to five years for members of the military reserves and national guard who are called away for active duty. Unlike the FMLA, USERRA protections extend to employers of under 50 workers.

Section 395.10 of the California Military and Veterans Code guarantees 10 days of leave for the spouses and domestic partners of service members who are on leave from duty in current war zones. That section has no other requirements except that the service member is on leave from deployment. Under California law, military spouses can use this time for any purpose they wish. It is not tied to providing medical care for the spouse.

Limitations on FMLA for Service Members

It appears from the amendments that the 26 weeks of extended leave for serious injuries to service members must be taken within one 12-month period. Therefore, it does not repeat annually as the traditional 12 weeks of FMLA leave does. However, a parent, spouse or child or an injured service member may still be entitled to take 12 weeks of traditional FMLA leave in following leave years after exhausting the 26 weeks of leave. Because “next of kin” are only recognized for the 26 weeks of leave within 12 months, a next-of-kin would be entitled to protected leave one time only. Another restriction is that a husband and wife employed by the same employer may take only 26 weeks of combined leave.

It also bears noting that the amendments are tied to the FMLA. Therefore, reinstatement rights, benefits continuation, and other requirements under FMLA will still apply, unless specifically addressed by the amendments.

Conclusion

While there are still some questions about how the DOL regulations will affect employers, the amendments to the FMLA express Congress’ goal to protect members of the military and their families. Employers should immediately review and revise their family and medical leave policies to accommodate the new leave requirements. Because of the current ambiguity in the law, employers may have to implement an interim policy that is subject to revision when the DOL issues its regulations.

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