02/ 11/ 2008
by Beth Milito, NFIB Legal Foundation
President Bush signed a law in January that expanded the Family and Medical Leave Act for the first time in 15 years. The FMLA expansion provides two new types of military FMLA leave--qualifying exigency leave and service member family leave. Businesses covered by the FMLA must now offer up to 26 weeks of unpaid leave to employees who provide care to wounded U.S. military personnel. Employers must also provide up to 12 weeks of leave to immediate family members of military personnel who have a qualified exigency.
Recap on FMLA basics
The FMLA is a federal law that provides job security to employees who request time off for a family or medical reason. Employers that have 50 or more employees are required to offer qualified employees up to 12 weeks of unpaid leave for family and medical responsibilities. An employee may use FMLA leave to care for an immediate family member with a serious health condition, for the birth or adoption of a child, or because the employee is unable to work because of the employee's own serious heath condition.
For FMLA leave employers must:
- Continue group health benefits
- Permit intermittent leave
- Restore employee to same or equivalent job
Two new types of leave
The expanded FMLA will allow eligible employees to take job protected family medical leave due to exigencies related to active military service and to care for a family member who was injured while serving in the military. These two new categories of leave should be integrated into a business' existing FMLA program.
The qualifying exigency leave provides 12 workweeks of leave during any 12-month period because of any qualifying exigency 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 to active duty).
Examples of qualifying exigency leave could include:
- Arranging for childcare
- Seeing a child or spouse off/or welcoming home ceremony
- Attending pre-deployment briefings
- Attending family support meetings
- Attending reintegration briefings
Technically, qualifying exigency leave is not effective until the U.S. Department of Labor, the federal agency charged with enforcing the FMLA, has issued final regulations defining "any qualifying exigency." In the interim, however, DOL has encouraged employers to provide this type of leave to qualifying employees.
The service member family leave provides that an eligible employee who is the spouse, son, daughter, parent or next of kin of a covered service member shall be entitled to a total of 26 workweeks of leave during a 12-month period to care for a wounded service member. In contrast to the exigency leave provision, the service member family leave provision became effective upon the date of the President's signature. DOL has stated that it would immediately enforce the 26-week unpaid leave allowance to care for a wounded Armed Forces member.
DOL is working expeditiously to prepare more comprehensive guidance regarding rights and responsibilities under this expansion. In the interim, employers should act in good faith in providing leave under the new legislation. NFIB members with additional questions can contact the NFIB Employment Law Hotline. For information on the Hotline, please call 800-NFIB-NOW or visit www.nfiblegal.com.
