President Bush Expands FMLA to Cover Servicemember Leave.
by Darrell R. VanDeusen
As a part of the National Defense Authorization Act for Fiscal Year 2008, the House and Senate passed legislation that amends the Family and Medical Leave Act of 1993 to cover an employee’s absence from work to care for a “blood relative” who becomes injured or ill while on active duty or in a contingency operation. President Bush signed the legislation on January 28, 2008. The changes in the law are immediate. While unquestionably well intentioned, this amendment to the FMLA will complicate application of the Act.
The final version of the FMLA expansion creates two new types of FMLA leave:
- “Active duty leave” will provide 12 weeks of FMLA leave during a 12 month period to a spouse, son, daughter, or parent of an individual who has received a call up notice. An eligible employee may use up to 12 weeks of FMLA leave because of a “qualifying exigency” that exists because the employee is on or has been called to active duty in the Armed Forces. The Department of Labor will be responsible for deciding what constitutes a "qualifying exigency."
- “Caregiver leave” will provide 26 weeks of FMLA leave during a single twelve month period for a spouse, son, daughter, parent, or nearest blood relative to provide care to a “recovering servicemember.” An eligible employee who is the primary caregiver of a servicemember with a combat-related “serious injury or illness” may take up to 26 weeks of FMLA leave in a single 12-month period to care for the injured servicemember. The restriction here of a “single” leave year limits this leave to a one-time only use.
A “recovering servicemember” is defined as a member of the Armed Forces who suffered an injury or illness while on active duty that may render the service person unable to perform the duties of their office, grade, rank, or rating. A “serious illness or injury” is independently defined as an injury or illness incurred in the line of duty that may render the member medically unfit to perform their duties. This definition is different from the definition of a “serious health condition” and will undoubtedly be interpreted differently.
The legislation identifies “next of kin” as a new category of eligible employee entitled to FMLA leave to care for an injured servicemember, in addition to spouse, son, daughter, or parent. Next of kin is defined as the nearest blood relative to the servicemember.
The maximum leave available in any twelve month period is a total of 26 weeks. The legislation caps FMLA leave in any one year to a total of 26 weeks. Employers may require certification to verify the call to active duty and/or the need for FMLA leave due to care for an injured servicemember. Intermittent leave will be available, and employees will be able to take the leave in increments of the shortest time periods tracked by their employers’ payroll system.
It appears that the law will be effective immediately, but employers will need time to prepare for and comply with the changes and the DOL will need time to prepare regulations. Given the amount of time it has taken the DOL to offer revisions to the existing regulations, this may be a while. There has been some suggestion among commentators that President Bush has agreed to sign this legislation in return for some “employer-friendly” revisions to the existing regulations.
Employers should immediately become familiar with the requirements of the FMLA amendments, and update their FMLA policies. Although it will be a while before the DOL comes up with final regulations, employers should consider the amendments effective immediately. Employees who believe that they may meet the requirements for leave should notify their employers as soon as possible, and be patient as everyone begins to attempt to better understand the changes to the law.
Here are some areas that are likely to cause conflict until the regulations provide additional guidance:
Who’s your daddy and how many “next of kin” can you have? Has Congress now required employers to become experts in genealogy? The amendment provides that, in addition to spouse, son, daughter, or parent, the “nearest blood relative” gets to take servicemember family leave. But who determines who the closest blood relative is? Does Human Resources need to know whether a second cousin or first cousin twice removed is a closer blood relative?
If an employee provides notice of the need to take servicemember family leave as “next of kin,” how will the employer be able to establish that the employee is the closest blood relative? What does the employer do if it learns there is a closer blood relative? This expanded coverage could also present a situation where a number of family members work for the same company are all on the same level of “next of kin.” Can they all take up to 26 weeks of leave? At the same time? And have job protection?
What’s the difference between a “serious illness or injury” and a “serious health condition”? The definition of serious health condition is one of the areas the DOL plans to address when it revises the existing FMLA regulations. Other than the fact that the serious illness or injury has to occur in the line of duty on Active duty, is there more to it? There must be a difference or Congress could have retained the same language, covering a “serious health condition that arises in the line of duty on Active duty.”
It would appear that a serious health condition as currently defined should be more inclusive than a serious illness or injury. For example, and perhaps most obviously, pregnancy should probably not count as a serious illness or injury, since it presumably does not occur in the line of duty, even if it happens while the servicemember is on Active duty. But what about other conditions that have been found to be serious health conditions, like sleep apnea or high blood pressure?
What is “any qualifying exigency”? Even Congress tells us we have to wait for regulations on this one. Any “qualifying exigency” will entitle an employee to FMLA leave when a spouse, son, daughter, or parent (but not next of kin) is called to active duty, has an impending call to active duty, or is on active duty. The mind reels at the possibilities here. With no direction from Congress, the DOL can define the term as broadly as it wants. Given the broad strokes with which the Clinton administration’s DOL wrote the 1995 regulations, it could be deja vu all over again.
Employers never have a good feeling about knowing they will have to comply with a law that is so remarkably undefined. That is exactly what employers will have to do with FMLA military leave for the near future. The learning curve will be high. For now, an employer’s best bet is to interpret the amendments in the same manner as they have treated the FMLA since 1993 - to preserve the balance between workplace and family that is at the heart of the Act.
Kollman & Saucier, P.A., The Business Law Building, 1823 York Road, Timonium, MD 21093 Phone: 410-727-4300
Fax: 410-727-4391 © 2008 Kollman & Saucier, P.A. All rights reserved.
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