Stites & Harbison, PLLC

On January 28, 2008, President Bush signed into law the National Defense Authorization Act, which among other things, amends the Family and Medical Leave Act of 1993 ("FMLA").  Although some terminology is yet to be defined by final regulations, employers currently have a duty to provide general notice to employees of these amendments.

Briefly stated, these FMLA amendments affect all employers who are already subject to the FMLA's provisions, define "eligible employee" as previously defined, and add two additional types of leave for eligible employees whose immediate family members are in the Armed Forces.  The two additional types of leave are summarized as follows: 

Servicemember Family Leave

This provision, which became effective upon signing, provides up to 26 weeks of FMLA leave to an eligible employee to care for the employee's spouse, son, daughter, parent, or next of kin who is a member of the Armed Forces, including the National Guard or Reserves, and who is undergoing medical treatment, recuperation, therapy, is in outpatient status, or is on the temporary disability retired list, for a serious injury or illness.

Qualifying Exigency Leave

This provision provides up to 12 weeks of FMLA leave to an eligible employee who because of any qualifying exigency (which is yet to be defined) 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 a contingency operation (which includes military operations against an enemy, or during a war or national emergency). 
Although the Qualifying Exigency Leave provision is not effective until the Department of Labor issues final regulations defining "any qualifying exigency," the DOL is encouraging employers to make a good faith effort to provide this type of leave to eligible employees.  Examples of qualifying exigencies might include:  arranging for child care, seeing a child off or welcoming a child home, attending pre-deployment briefings, or attending reintegration briefings.

Both types of unpaid leave may be taken on an intermittent or reduced leave schedule.  The employer may require a leave request be supported by a certification.  For the Servicemember Family Leave, this includes certification issued by the servicemember's health care provider.  Guidelines for certifying leave under Qualifying Exigency Leave are yet to be determined by the DOL's final regulations.  Finally, although FMLA leave is unpaid leave, an employer, in accordance with its existing FMLA policies, may permit or require an employee to use any accrued paid time off.

Proposed regulations have been published and comments will be taken until April 11, 2008.  Accordingly, final regulations on these new categories of leave will not be in place until after mid-year.  Covered employers are advised to notify employees immediately of the FMLA's amendments and to make a good faith effort to provide leave as required by law.  Because this e-alert covers a very brief overview of the FMLA's changes, covered employers are encouraged to seek additional information from the Department of Labor at www.dol.gov or contact legal counsel for more information.