Jan 29, 2008

President Signs FMLA Expansion for Military Families

It's official: The FMLA has been amended for the first time in its 15-year history. On January 28, President Bush signed a defense authorization bill that includes new FMLA leave rights. The president vetoed two previous incarnations of this legislation for reasons unrelated to the FMLA provisions.

The new law makes important changes to the FMLA--and leaves significant questions that will have to be answered by the Department of Labor (DOL). Because the law doesn't include an effective date for the new provisions, it looks like they take effect immediately. The law provides for:

FMLA leave for active duty of a family member. In addition to taking leave for their own serious health condition, to care for a seriously ill family member, or for the arrival of a new child, employees are now entitled to FMLA leave for "any qualifying exigency" arising out of a family member's active duty or call to active duty. This leave is part of the regular 12-week entitlement--that is, the employee gets 12 weeks total per year for any qualifying reason, not an additional 12 weeks for issues relating to a family member's military service.

Extended leave to care for injured or ill service member. The law also creates an entirely new entitlement for family members who need to care for an injured service member. These employees can take up to 26 weeks of leave in a year (that's 26 weeks total, not 26 weeks plus 12 weeks of FMLA leave for other reasons). In addition to spouses, children, and parents (the usual family members covered by the FMLA), "next of kin"--defined in the law as a service member's "nearest blood relative"--are eligible for this type of leave. This appears to be a one-time-only entitlement; the law says this 26-week leave will "only be available during a single 12-month period."

Regulations called for. The law leaves a number of issues to be determined by regulations issued by the DOL These questions include:

  • What's a "qualifying exigency" that entitles an employee to leave arising from a family member's service or impending service?

  • What certification can an employer require? This question arises both as to the service member's active duty and as to the employee's status as "next of kin."

And speaking of regulations. Last week, the DOL sent proposed FMLA regulations to the Office of Management and Budget. These regs haven't been made public yet, but news reports say that they address medical certifications, notice and waiver requirements, and when leave may begin. (An official at the DOL has characterized the changes as "modest," but that is, of course, in the eye of the beholder.) Once the OMB has reviewed them -- a process that could take up to three months -- the regs will be published in the federal register. Then, there will be a period for public comment before final, binding regs are issued.

Find out more about these new rules in Nolo's article Family and Medical Leave for Military Family Members.