EXPANSION OF FMLA FOR MILITARY FAMILIES

By Andrea G. Chatfield, Esq.

Things just got a little easier for families of military personnel in the workplace. On January 28, 2008, the President signed into law the National Defense Authorization Act which provides the first expansion of the Family and Medical Leave Act (FMLA). The new law provides FMLA leave, under certain circumstances, to employees caring for an injured service member who is a qualifying relative and to employees who are family members of an individual called to active duty.

Under the caregiver provisions, an employee can take up to 26 weeks of FMLA leave during a single 12-month period if he or she is a spouse, son, daughter, parent, or next of kin of a recovering service member for whom the employee is caring. A recovering service member is a member of the Armed Forces, including the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy; is in outpatient status; or is otherwise on the temporary disability retired list, due to a serious illness or injury incurred in the line of active duty. This section of the law is effective immediately.

Under the call to active duty leave provisions, an employee may take up to 12 weeks of FMLA leave because of a "qualifying exigency" (to be defined by the U.S. Department of Labor (“DOL”)) arising out of the fact that the spouse, or a 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. While this section is not effective until the DOL publishes final regulations, good faith compliance is encouraged until such time.

During any of these leaves, the general FMLA requirements apply. For example, the employer must have 50 or more employees, and the employee must be 1 of 50 employees within a 75-mile radius, in order for these rights to apply. The employee must have worked for the employer at least 12 months and have worked at least 1,250 hours within the 12 months prior to the leave. Group health coverage must be continued during these types of leaves, and the same rights to reinstatement exist as for other types of FMLA-covered leaves. Employers must also provide employees with written notice of these entitlements.

Additional information regarding the law, and a copy of the FMLA, as amended by the new law can be accessed at: http://www.dol.gov/esa/whd/fmla/NDAA_fmla.htm.

In a related development, on February 11, the DOL proposed changes to its current regulations interpreting all of the FMLA. In its comments to the proposed regulations, the DOL invites public comment on many questions arising from the new changes to the FMLA. For example, the DOL is inviting comments from the public about whether “qualifying exigencies” for active duty leave should be limited “to those items of an urgent or one-time nature arising from deployment as opposed to routine, everyday life occurrences.”

The new changes for military families are fraught with ambiguities for employers, and will present challenges for compliance administration. However, the first step employers must take is to update their FMLA policies, provide notice to employees of these changes, and then be on the look out for any further guidance issued by the DOL on its proposed regulations. In order to avoid confusion, policies should track the language of the statute as closely as possible. If an employee requests to take FMLA leave because of a family member who is in the Armed Forces or National Guard, a careful review of the new law will be necessary in order to determine if the employee qualifies for such leave, and if so, what their entitlement is.

Andrea G. Chatfield is a member of the Employment Law Practice Group and the Corporate Department at the law firm of McLane, Graf, Raulerson & Middleton, Professional Association. Andrea can be reached at 603-628-1341 or andrea.chatfield@mclane.com. The McLane Law Firm is the largest full-service law firm in the state of New Hampshire, with offices in Concord, Manchester and Portsmouth.