New Federal Law Expands FMLA To Create New Leave Entitlements For Employees Who Have A Family Member Called To Active Duty Or Injured While In Military Service.

February 07, 2008
Introduction

On January 28, 2008, President Bush signed into law the National Defense Authorization Act (NDAA), which includes an expansion of the Family and Medical Leave Act (FMLA). This expansion allows qualifying employees to take two new family leaves related to military service under the FMLA:

1. Up to 12 weeks of unpaid family leave for a "qualifying exigency" may be taken arising out of the fact that an employee’s spouse, son, daughter, or parent is on active military duty or has been notified of an impending call or order to active duty in support of a contingency operation involving the United States Armed Forces.

2. Up to 26 weeks of unpaid family leave may be taken to care for a spouse, son, daughter, parent, or "next of kin" servicemember of the United States Armed Forces who has a serious injury or illness incurred in the line of duty while on active military duty.

These new changes to FMLA went into effect immediately upon President Bush’s signature on January 28, 2008. However, there are some uncertainties regarding the application of this law due to a lack of accompanying federal regulations and a potential conflict with California’s leave laws. Below is a brief summary of the new changes to the law along with some of the potential conflicts that may arise in the short term regarding the implementation of this new law.

No New Changes to General FMLA Employee Eligibility

Before discussing the new FMLA leave entitlements under the NDAA, it should be noted that these changes do not generally affect an employee’s overall eligibility for FMLA leave. FMLA still only applies to employers with 50 or more employees. An employee who works for a qualifying employer with 50 or more employees is still eligible for FMLA where: (1) They have been employed by the employer for at least 12 months (does not need to be consecutive); and (2) They have worked at least 1,250 hours of service for the employer during the previous 12-month period.

New FMLA "Qualifying Exigency" Military Duty Family Unpaid Leave

The first new FMLA-qualifying leave related to military service is the one that is not fully defined. This new leave allows a qualified employee to take up to 12 weeks of unpaid family leave for a "qualifying exigency" arising out of the fact that an employee’s spouse, son, daughter, or parent is on active military duty or is called to active duty in support of a contingency operation involving the Armed Forces.

Part of the uncertainty here is that the new law does not define the term "qualifying exigency", but rather mandates that the Department of Labor issue a regulation to define the term. Furthermore, the new law does not provide any guidance regarding what constitutes adequate certification to verify a request for this new leave. This certification issue will also have to be clarified by future Department of Labor regulations. Understanding that the implementation of federal regulations is not an overnight process, the Department of Labor is encouraging employers to act in good faith to comply with this new family leave provision until the appropriate regulations are implemented.

LCW recommends that employers provide this qualifying leave to employees who can verify that they have a qualified family member (spouse, son, daughter, or parent) who is being called up to active duty and that the employee requests the FMLA leave to assist the qualified family member prior to going on active duty. Absent further clarification from the Department of Labor, employers will need to evaluate such requests for FMLA leave on a case by case basis and should consult with legal counsel if there is any uncertainty regarding how to proceed with a request for this new military duty family leave under the FMLA.

New FMLA Injured Servicemember Family Leave Provides Unpaid Leave For Up to 26 Weeks

The other major development in the FMLA revision is a new qualifying leave for seriously injured servicemembers that significantly broadens the FMLA protections for this limited area of qualified leave. Under this leave, a qualified employee can take up to 26 weeks of unpaid leave under the FMLA to care for a spouse, son, daughter, parent or "next of kin" servicemember who has a serious injury or illness suffered in the line of duty in the Armed Forces.

There are three significant changes under this provision that deviate from the standard FMLA qualifications:

1. 26 Weeks of Unpaid Leave - Since its inception in 1993, FMLA has always been limited to a maximum of 12 weeks of unpaid leave during a 12-month period determined by the employer. This "injured servicemember" provision now allows up to 26 weeks of unpaid leave.

2. Extension of Family Leave to "Next of Kin" - Another major change under this provision is to extend family leave beyond the current FMLA scope of immediate family as spouse, son, daughter, or parent to add a "next of kin" definition which includes the affected servicemember’s nearest blood relative. Therefore, employees who are grandparents, aunts, uncles, cousins, etc. of a servicemember may qualify to take FMLA family leave under this definition.

3. Use of "Serious Injury or Illness" Standard - Unlike other FMLA family and medical leaves that are based on a qualifying serious health condition, this new provision for "covered servicemembers" is invoked based on a new definition of a "serious illness or injury" sustained in the line of duty of military service. However, there are two criteria which must be met for a servicemember’s condition to qualify an eligible employee for family leave under this new provision. The first prong requires that the affected person be a "covered servicemember". The second prong requires that the affected person have a "serious injury or illness". These two prongs are defined under the FMLA as follows:

(a) Covered Servicemember: "...a member of the Armed Forces, including a member of the National Guard or Reserves, 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."

(b) Serious Injury or Illness: "...an injury or illness incurred by the member in line of duty on active 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."

As a result of these deviations, employers will need to be careful in evaluating a request for FMLA leave to care for an injured servicemember in order to be in compliance with the law.

Concurrence with Other FMLA Leave, Intermittent Leave, and Use of Accrued Leave During FMLA Leave

Although these new changes to FMLA can potentially extend an unpaid leave up to 26 weeks in a defined 12-month period, this is the maximum period allowed during the 12-month period. This is the result of the law’s requirement that any FMLA qualifying leave during this time period shall run concurrently. Therefore, if an employee takes four weeks of FMLA leave for a separate serious health condition, the employee would only be entitled to eight additional weeks of FMLA leave for other FMLA qualifying events (or 18 weeks of additional FMLA leave if the qualifying event involves the care of an injured servicemember).

The FMLA’s provisions regarding intermittent leave also remain unchanged. Therefore, the current rules related to a qualified employee’s use of intermittent FMLA leave would apply with these new family leave provisions for military active duty or to care for an injured servicemember.

Furthermore, nothing in these changes to FMLA affects an employer’s ability to require that an eligible employee use any accrued vacation leave, PTO leave, or sick leave (where applicable) during the 12 weeks (or 26 weeks for injured servicemember leave) of FMLA leave.

Interaction/Conflict with California Leave Laws?

While this recent federal legislation did amend the FMLA to add additional family leave rights based on active military duty and the effect on injured servicemembers, these amendments have no effect on any state law counterparts, including the California Family Rights Act (CFRA). There is a possibility that an employee’s use of FMLA leave for these new family military leave purposes may not run concurrently with CFRA leave - similar to the deviation between the FMLA and CFRA in their application to pregnancy disability leave. As a result, employees may be eligible for an additional 12 weeks of unpaid leave time under the CFRA during an established 12-month period even though the employee exhausted all unpaid leave for family military leave under the FMLA. Clarification may be forthcoming to address this issue either from the California legislature through an amendment to the CFRA or from the Fair Employment and Housing Commission in the form of a regulation or legal interpretation. However, at this time there is no clarification on this potential conflict.

The other California leave law that may potentially conflict with these new FMLA family military leaves is California’s new Military Spouse Leave Law (California Military & Veterans Code section 395.10). The Military Spouse Leave Law provides qualifying employees up to 10 days of unpaid leave to attend to a spouse in the military who is on leave from deployment. Depending on how the Department of Labor defines a "qualifying exigency" for active military duty in its future FMLA regulations, there is a possibility that an employee can qualify for military spouse leave under both the FMLA and California’s Military Spouse Leave Law. Under such a scenario it is unclear whether the leaves of absence would run concurrently. Regardless, employers will have to wait until the Department of Labor issues new FMLA regulations regarding the family military leaves before employers can address this potential conflict.

Conclusion

FMLA eligible employers with 50 or more employees should be aware of the FMLA revisions noted above and should modify employment policies and procedures accordingly and seek legal advice regarding any uncertainties regarding the application of these new provisions. Look for future editions of the Personnel File to address any clarifications in the application of these new FMLA family military leaves.

This article was written by Gage C. Dungy, an attorney with the labor and employment law firm of Liebert Cassidy Whitmore (LCW). Mr. Dungy is an Associate in the Fresno office and can be reached at (559) 256-7800 or at gdungy@lcwlegal.com. For more information regarding the information above or our firm please visit our website at www.lcwlegal.com, or contact one of our offices below.

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