The Family and Medical Leave Act (“FMLA”) helps employees balance the difficult responsibilities of family, illnesses, and work, by allowing eligible employees in certain situations to take job-protected leave of 12 unpaid work weeks. While the FMLA currently provides leave for families of injured members of the U.S. Armed Forces (“service members”), a Presidential commission recommended that with respect to service members, the FMLA be extended “for up to six months for spouses and parents of the seriously injured.” Thus, a bill was introduced to expand the FMLA for the first time since it was originally signed into law by President Clinton in 1993. Although on December 28, 2007, President Bush vetoed the National Defense Authorization Act, a $696 billion military spending bill that contained two amendments to the FMLA, it is expected that the amendments eventually will be passed.
The first amendment to the FMLA would allow an employee 12 weeks of job-protected leave for a “qualifying exigency” arising out of an employee’s spouse, son, daughter, or parent being on active duty or having been notified of an impending call or order to active duty in the Armed Forces in support of a contingency operation. Thus, there are two conditions before this proposed new type of FMLA leave could be utilized: (1) an employee’s spouse, son, daughter, or parent must be called to active duty, be notified of an impending call, or be on active duty; and (2) there must be a “qualifying exigency.” The Secretary of Labor has not yet defined the term “qualifying exigency” and would need to do so before this type of FMLA leave could be available. However, it is anticipated that the term will address situations where an employee’s life is significantly disrupted due to a family member’s deployment to active service in the Armed Forces. If foreseeable, an employee requesting leave due to a “qualifying exigency” must provide the employer with “reasonable and practicable” notice. Additionally, an employer may also request certification that a family member is either on active duty or has been called to active duty when it receives a request for leave of this nature.
The second and more significant amendment to the FMLA would extend the amount of unpaid FMLA leave and expand the scope of eligible employees. The amendment, termed “Service Member Family Leave,” would allow an employee who is the spouse, son, daughter, parent, or next of kin of a covered service member up to 26 weeks of unpaid leave to care for that service member. “Next of kin” is defined as the “nearest blood relative”—thus likely including some employees in addition to those eligible for current types of FMLA. A “covered service member” is any service member who is “undergoing medical treatment, recuperation, or therapy, is otherwise in an outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.” Additionally, a service member suffers from a “serious injury or illness” if he or she is “medically unfit to perform the duties of the member’s office, grade, rank, or rating.” Finally, the 26 weeks would be limited to a single 12-month period and would include any leave granted under the new “qualifying exigency” provision discussed above.
President Bush’s recent veto was not aimed at the FMLA amendments. Consequently, it is expected that the FMLA amendments eventually will become law. If and when the modifications to the FMLA become law, employers will need to review their FMLA policies and train their Human Resources department and managers to ensure compliance with the amendments.