New Law Amends The Family Medical Leave Act To Provide Leave Relating To Military Service
January 30, 2008
On January 28, President Bush signed the National Defense Authorization Act for Fiscal Year 2008. The Act amends the Family and Medical Leave Act by adding two types of leave that employees can take to care for and assist family members serving in the Armed Forces.
Qualifying Exigency Leave
First, eligible employees may take up to 12 weeks of unpaid FMLA leave because of a “qualifying exigency” relating to a spouse, child or parent serving on active duty, or being notified of a pending call to active duty, in the United States Armed Forces. The Act does not define “qualifying exigency” but directs the Secretary of Labor to issue regulations defining the term. Conceivably, employees might be able to take leave to make preparations for a service member’s departure for overseas duty, such as arranging for child care and obtaining Power of Attorney forms or other legal documents. It might also include leave to spend time with a service member who is home on temporary leave from active duty in a combat zone.
Qualifying Exigency leave only applies if the military service involves, or may involve, action against an enemy of the United States or an opposing military force. It also includes national emergencies declared by the President in which armed services members are called to, or retained in, active duty. Because of how the Act defines “active duty,” it is not clear whether this type of leave applies only to those service members who are called to active duty from, for example, the National Guard, or whether it also applies to “full-time” soldiers who are ordered into operations against a hostile force (e.g. transferred to service in Iraq from an assignment in the States). We anticipate that the regulations will provide further guidance on this issue.
Servicemember Family Leave
Second, the FMLA will now provide what is referred to as “Servicemember Family Leave.” Eligible employees who are the spouse, child, parent, or next of kin (the nearest blood relative of an individual) of a “Covered Servicemember” may take up to 26 weeks of unpaid leave to care for the Servicemember. A Covered Servicemember is a member of the Armed Forces who is “undergoing medical treatment, recuperation, or therapy, or in outpatient status, or on the temporary disability retired list, for a serious injury or illness.” The injury or illness must be incurred in the line of duty and must be of such a nature that it may render the individual unfit to perform his or her military duties.
An eligible employee may not take more than a total of 26 workweeks of leave during a 12 month period for Servicemember Family Leave and any other type of FMLA leave. Spouses that are employed by the same employer are limited to a combined total of 26 weeks of FMLA leave in a 12-month period when Servicemember Family Leave is used.
Provisions Applicable To Both Types Of Leave
Employees must provide employers with “reasonable and practicable” notice of their need for leave and may take leave on an intermittent or reduced leave schedule. If the need for Servicemember Family Leave is foreseeable based on planned medical treatment an employee can be temporarily transferred to an alternative position that better accommodates the employee’s absences. The alternative position must provide equivalent pay and benefits.
Employers may require certification from employees requesting "qualifying exigency" leave, although the precise nature of this certification is yet to be determined. When Servicemember Family Leave is used, the employer may require medical certification for the ill or injured servicemember, in the same manner as medical certification can be required for serious health conditions under the FMLA.
Employees may choose to use (or employers may require employees to use) accrued paid vacation, personal, or family leave in lieu of unpaid leave due to a qualifying exigency. When Servicemember Family Leave is taken, employees may choose to use (or employers may requires that employees use) accrued paid vacation, personal, family, medical, or sick leave. Employees may not insist on using paid medical or sick leave in situations in which the employer would not normally provide those types of leave.
Different Effective Dates
These two new forms of leave have different effective dates. Effective immediately employers must grant Servicemember Family Leave to eligible employees, and until additional regulations are issued, employers must “act in good-faith” in providing this type of leave. However, the amendment allowing for 12 weeks of leave due to a qualifying exigency does not take effect until the Department of Labor issues regulations defining what constitutes a “qualifying exigency.”
For further assistance with these new amendments to the Family and Medical Leave Act, please contact the Taft Labor and Employment attorney with whom you regularly work or at any of our office locations.
First, eligible employees may take up to 12 weeks of unpaid FMLA leave because of a “qualifying exigency” relating to a spouse, child or parent serving on active duty, or being notified of a pending call to active duty, in the United States Armed Forces. The Act does not define “qualifying exigency” but directs the Secretary of Labor to issue regulations defining the term. Conceivably, employees might be able to take leave to make preparations for a service member’s departure for overseas duty, such as arranging for child care and obtaining Power of Attorney forms or other legal documents. It might also include leave to spend time with a service member who is home on temporary leave from active duty in a combat zone.
Qualifying Exigency leave only applies if the military service involves, or may involve, action against an enemy of the United States or an opposing military force. It also includes national emergencies declared by the President in which armed services members are called to, or retained in, active duty. Because of how the Act defines “active duty,” it is not clear whether this type of leave applies only to those service members who are called to active duty from, for example, the National Guard, or whether it also applies to “full-time” soldiers who are ordered into operations against a hostile force (e.g. transferred to service in Iraq from an assignment in the States). We anticipate that the regulations will provide further guidance on this issue.
Second, the FMLA will now provide what is referred to as “Servicemember Family Leave.” Eligible employees who are the spouse, child, parent, or next of kin (the nearest blood relative of an individual) of a “Covered Servicemember” may take up to 26 weeks of unpaid leave to care for the Servicemember. A Covered Servicemember is a member of the Armed Forces who is “undergoing medical treatment, recuperation, or therapy, or in outpatient status, or on the temporary disability retired list, for a serious injury or illness.” The injury or illness must be incurred in the line of duty and must be of such a nature that it may render the individual unfit to perform his or her military duties.
An eligible employee may not take more than a total of 26 workweeks of leave during a 12 month period for Servicemember Family Leave and any other type of FMLA leave. Spouses that are employed by the same employer are limited to a combined total of 26 weeks of FMLA leave in a 12-month period when Servicemember Family Leave is used.
Employees must provide employers with “reasonable and practicable” notice of their need for leave and may take leave on an intermittent or reduced leave schedule. If the need for Servicemember Family Leave is foreseeable based on planned medical treatment an employee can be temporarily transferred to an alternative position that better accommodates the employee’s absences. The alternative position must provide equivalent pay and benefits.
Employers may require certification from employees requesting "qualifying exigency" leave, although the precise nature of this certification is yet to be determined. When Servicemember Family Leave is used, the employer may require medical certification for the ill or injured servicemember, in the same manner as medical certification can be required for serious health conditions under the FMLA.
Employees may choose to use (or employers may require employees to use) accrued paid vacation, personal, or family leave in lieu of unpaid leave due to a qualifying exigency. When Servicemember Family Leave is taken, employees may choose to use (or employers may requires that employees use) accrued paid vacation, personal, family, medical, or sick leave. Employees may not insist on using paid medical or sick leave in situations in which the employer would not normally provide those types of leave.
These two new forms of leave have different effective dates. Effective immediately employers must grant Servicemember Family Leave to eligible employees, and until additional regulations are issued, employers must “act in good-faith” in providing this type of leave. However, the amendment allowing for 12 weeks of leave due to a qualifying exigency does not take effect until the Department of Labor issues regulations defining what constitutes a “qualifying exigency.”
For further assistance with these new amendments to the Family and Medical Leave Act, please contact the Taft Labor and Employment attorney with whom you regularly work or at any of our office locations.
