Archieved Press Releases
February 12, 2008 - New law impacts employers by expanding FMLA
Expanded Leave Benefits for Servicemember
On January 28, 2008, President Bush signed into law H.R. 4986, the National Defense Authorization Act of 2008. Although human resources and employee benefits professionals can usually ignore most military spending legislation, this one definitively has an impact on employers. Tucked into this law is a provision that expands the Family and Medical Leave Act (FMLA) for the first time since the law was enacted in 1993.
Two New Categories of FMLA Leave
H.R. 4986 creates two new categories of FMLA leave. Employees taking leaves under these provisions are entitled to the same job protection benefits and continuation of health coverage as those taking other FMLA leaves.
- Servicemember Family Leave gives an eligible employee who is the spouse, child, parent or next of kin of a "covered servicemember" up to 26 work weeks of unpaid leave in a 12-moth period to care for that covered servicemember. This is more than double the time the FMLA grants to family members of non-servicemembers. A "covered servicemember" is a member of the Armed Forces (including the National Guard or Reserves) 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 incurred in the line of duty. Although the new law does not contain an effective date, the Department of Labor (DOL) provided clarification on its website that this provision is effective as of January 28, 2008.
- Leave Due to Active Duty of Family Member. The bill allows the spouse, parent or child of an active duty servicemember who is taking part in a "contingency operation" to take 12 workweeks of unpaid leave because of any "qualifying exigency." A "contingency operation" is defined as a military operation (i) against an enemy of the United States or against an opposing military force, or (ii) that results in the call or order to, or retention, of active duty of members of the uniformed services during a war of during a national emergency declared by the President or Congress. This definition is broad enough under present circumstances to cover almost every active duty service member. A "qualifying exigency" is not defined in the bill, which specifies that the Secretary of Labor shall define it in regulations. The DOL's website state that this provision will not be effective until the Secretary or Labor issues final regulations defining "any qualifying exigency." In the interim, the DOL encourages, but the law does not require, employers to provide this type of leave.
Combined Leaves
The law limits an eligible employee to a combined total of 26 weeks of leave in a given 12-month period for a combination of Servicemember Family Leave and any other type of FMLA leave. For example, an employee might take 12 weeks of "qualifying exigency" leave when her reservist spouse is notified that he is being called to active duty in Iraq. If three months later the spouse is seriously injured, the employee would only have 14 weeks of leave available to care for her injured husband. Or, an employee might take 10 weeks of FMLA time after the birth of her child. If two months later, her covered servicemember spouse were seriously injured, she would only be eligible for an additional 16 weeks of leave to care for him.
Provisions that Mirror Existing FMLA Rules
- Intermittent Leave - These new types of leave may be taken in blocks, intermittently or on reduced schedules, as with current FMLA leaves.
- Substitution of Paid Leave - An eligible employee can elect, or an employer can require the employee to use accrued paid vacation, personal leave, family leave, medical or sick leave for any part of the leave provided under these new provisions.
- Limited Leave for Spouses at the Same Employer - Two spouses employed by the same employer may be limited to the maximum number of weeks that one person would be entitled to (12 or 26 weeks, depending upon the type or leave).
Definition of "Serious Injury or Illness"
The new provisions define "serious injury or illness" as "an injury or illness incurred by the member in the line of duty in the Armed Forces that may render the member medically unfit to perform the duties of the member's office, grade, rank or rating."
This is different from the definition of a "serious health condition," the trigger for the other categories of FMLA leave. A "serious health condition" under the FMLA is generally an illness, injury, impairment or physical or mental condition that involves either inpatient care or continuing treatment by a health provider. While this may turn out to be a distinction without a difference, the discrepancy between the two definitions could lead to different standards for a leave taken to care for a servicemember family member than for a non-servicemember family member. This would create administrative difficulties for employers trying to determine whether specific employees are qualified to take FMLA leave.
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