Service Member Family Leave Amendments to the FMLA

The Family and Medical Leave Act (FMLA) has always been a very complex law. This past Monday, January 28, 2008, the FMLA became more complex. President Bush signed into law a bill that contained the first substantive changes to the FMLA since its enactment. The law amends the FMLA to provide two new forms of leave – leave for a family member to care for an injured service member and family leave due to call to active duty in the armed forces. Employers with 50 or more employees should become familiar with these new forms of leave and implement the appropriate changes to their policies.

Service Member Caregiver Leave

The more significant of the two leaves is the service member caregiver leave. The obligation to provide this leave is effective immediately. FMLA leave for this purpose can be up to 26 weeks (rather than the standard 12 weeks), is available to individuals who may not be family members under the current definition in the FMLA, and can be related to conditions that may not be "serious health conditions" as previously defined by the FMLA. An employee who is a spouse, son, daughter, parent or nearest blood relative to a member of the Armed Forces who is being treated for, recuperating from or is on the temporary disability retired list due to a serious injury or illness is entitled to a total of 26 work weeks of leave during a 12-month period to provide care for the service member. Note that "serious injury or illness" is defined in the amendment as an injury or illness incurred in the line of active duty that may render the member medically unfit to perform the duties of the member's office, grade, rank or rating. This leave is only available during a single 12-month period. The Department of Labor (DOL) has stated that employers need to comply with this portion of the amendment immediately and will be issuing regulations in the future. In the meantime, employers need to use "good faith" in providing Service Member Caregiver Leave.

Family Leave Due to Call to Active Duty

Employees also are entitled to FMLA leave due to a "qualifying exigency" arising out of the fact that a spouse, son, daughter or parent is on active duty or has been called or notified about an impending order to active duty in support of a contingency operation. Contingency operations involve actions, operations or hostilities against enemies of the United States or opposing forces or active duty during a war or national emergency. Because a "qualifying exigency" has not been defined, this portion of the amendment is not effective until the DOL issues regulations defining a "qualifying exigency." In the meantime, the DOL encourages employers to provide this form of leave (although it is difficult to do so without further guidance).

The majority of the current definitions, eligibility and procedural requirements of the FMLA will apply to these two new forms of FMLA leave. In addition, the combined total leave time for these two forms of leave may not exceed 26 weeks in a 12-month period.

As stated above, employers should amend their policies appropriately to account for these new forms of leave, particularly the Service Member Caregiver Leave. Please contact Tami A. Earnhart or any other member of the Labor and Employment Practice Group at Ice Miller to discuss the appropriate amendments to your policies and compliance with this new law.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.