Caregivers of Armed Forces Personnel
Entitled to Additional FMLA Leave

On Monday, January 28, 2008, President Bush approved significant amendments to the FMLA as part of the National Defense Authorization Act for Fiscal Year 2008 (NDAA).  One amendment is effective immediately and the other will take effect soon. 

Service Member Family Leave.  Effective immediately, the NDAA amends the FMLA to permit a spouse, child, parent or next of kin (defined as the "nearest blood relative") to take up to 26 workweeks of leave in order to care for a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment or therapy, recuperation, or is otherwise in outpatient status or on temporary disability retirement for a serious injury or illness.  In this context, a "serious injury or illness" means an injury or illness incurred "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."  The amendment states that this type of leave "shall only be available during a single 12-month period," and an employee is limited to a combined total of 26 weeks of leave, whether it is taken for care of a service member or for another qualifying reason.

This amendment to the FMLA raises a number of questions, i.e., What if the service member has been discharged for reasons unrelated to the serious injury or illness?  What does it mean that service member leave "shall only be available during a single 12-month period"?  Does the leave of absence continue only so long as the service member is undergoing treatment, therapy, etc.?    The U.S. Department of Labor (DOL) is in the process of drafting regulations which hopefully will address some of these questions and provide additional guidance regarding employee and employer rights and responsibilities under this new legislation.  Meanwhile, the DOL advises that existing FMLA procedures, such as notice and medical certification requirements, should be used as appropriate, and that employers should "act in good faith" in providing leave under the new law.    

"Qualifying Exigency" Leave.  A related amendment, which has not taken effect yet, will permit an employee to take up to 12 weeks of FMLA leave for "any qualifying exigency" arising out of the fact that the spouse, child or parent of the employee is on active duty or has been called up for active duty.  This provision of the NDAA will become effective once the Secretary of Labor issues final regulations defining "any qualifying exigency."  In the meantime, however, the DOL "encourages employers to provide this type of leave to qualifying employees."  This provision is intended to cover situations where, because of a family member's active duty status or impending call to active duty, the employee is needed to provide care for family members or attend to other family needs necessitated by the service member's absence. 

In light of these amendments to the FMLA, employers should review and update their FMLA policies and forms accordingly.   

If you have any questions about these amendments to the FMLA, or their impact on your current FMLA policies, procedures and forms, please contact any of the attorneys in Sherman & Howard's Labor & Employment Law Practice Group.