The Family Medical Leave Act (FMLA) has been expanded for the first time in its 15-year history. On January 28, President Bush signed legislation that expands the FMLA for military families in two ways.
First, this new legislation allows for “Servicemember Family Leave,” which is up to 26 weeks of FMLA leave that an employee who is a spouse, child, parent or next of kin may take to care for a member of the Armed Forces who is being treated for a “serious injury or illness” incurred in the line of active duty. The US Department of Labor (DOL) has indicated that the legislation became effective on the day the bill was signed, January 28. DOL is preparing more comprehensive guidance on this leave, but in the meantime employers should act in good faith and follow their other FMLA procedures (e.g., procedures regarding notice and substitution of paid leave) in providing this leave.
Second, this new legislation allows an employee to take up to 12 weeks of FMLA leave for “any qualifying exigency,” to be defined by DOL regulations, arising from the fact that a spouse, child or parent is on active duty or is to be called for active duty in the Armed Forces in support of a contingency operation. DOL has indicated that this portion of the new legislation will not go into effect until it issues final regulations defining the phrase qualifying exigencies. Nevertheless, DOL is encouraging employers to provide this type of leave in the meantime.
Employers should be prepared to revise their FMLA policies quickly after final regulations are issued. Until then employers should provide Servicemember Family Leave as required by the amended FMLA, the text of which can be found at www.dol.gov/esa/whd/fmla/fmlaAmended.htm.