The FMLA has been amended and expanded for the first time since the law was enacted in 1993.
|
|
|
|
|
 |
FMLA AMENDED
Military Families Now Entitled to Six Month Leave
Free Forms Available
By Christopher W. Olmsted, Esq.
We live in a time when our military servicemen and women, and their families, have made great sacrifices for our country. The federal government has enacted legislation designed to protect the employment rights of those families.
The federal Family Medical Leave Act (FMLA) has been amended and expanded for the first time since the law was enacted in 1993. The amendment became effective January 28, 2008, when President Bush signed into law H.R. 4986, the National Defense Authorization Act of 2008. In addition to allocating more funds to the military, H.R. 4986 significantly amends the FMLA to extend coverage to employees to care for family members injured while on active military duty.
Generally, the amendment permits employees to take up to 26 weeks of unpaid leave to care for a family member who is a member of the military injured in the line of duty. The amendment also permits employees to take up to 12 weeks of leave in the event of a “qualified exigency.”
The FAQ below provides more information. We also offer the DOL’s poster, a leave summary chart, a checklist, and the official text of the amended statute.
Q: Which employers are covered by the new leave?
A: Because H.R. 4986 amends the FMLA, employers covered by the FMLA are also covered by the new Military Family Leave. Generally, this includes employers with 50 or more employees during 20 weeks in the current or prior calendar year.
Q: Which employees qualify for the leave?
A: Employees who are the spouse, son, daughter, parent, or “next of kin” of a covered servicemember are eligible for the leave to care for that servicemember. “Next of kin” is a new family category in the FMLA. It means the nearest blood relative of the servicemember. Also, the employee must work at a worksite with 50 or more employees located within a 75 mile radius.
Q: Who are covered servicemembers?
A: In order to qualify for the leave, the employee must be a relative of a “covered servicemember.” The amendment defines covered servicemembers as follows:
Military Status: The servicemember must be a member of the U.S. Armed Forces, including a member of the National Guard or Reserves.
Injury/Illness: The servicemember must have a “serious injury or illness.” The term “serious injury or illness” means an injury or illness
incurred by the member in line of duty on active duty in the Armed Forces, and
that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating.
Medical Status/Treatment: A covered servicemember must have the following status because of a serious injury:
Undergoing medical treatment, recuperation, or therapy, or
Is on outpatient status at a military treatment facility or assigned to an outpatient unit, or
Is on the military’s temporary disability retired list.
Q: What is the maximum length of leave?
A: The amendment provides up to 26 weeks of unpaid leave per 12 months. This is a significant extension beyond the 12 weeks available for regular FMLA leave.
Q: Can covered employees also take an additional 12 weeks of “regular” FMLA leave?
A: No. The amendment specifies that employees may take a combined maximum of 26 weeks of leave. For example, if an employee takes a 12 week leave for the birth of a child, for his or her own serious health condition, or other covered event, then the employee may only take an additional 14 weeks of leave on account of the illness or injury of a family member in the military during the leave year.
Q: What is a qualifying exigency leave?
A: The Amendment also provides that an eligible employee may take up to 12 weeks of unpaid leave if the employee’s spouse or child is on active duty in the military or is a reservist who faces recall to active duty if a “qualifying exigency” exists. The term “qualifying exigency” is not defined in the amendment, but will be in regulations to be promulgated by the Department of Labor.
Q: Can the employee take intermittent leave?
A: Yes, the same rules apply as for regular FMLA leave.
Q: Can the employee substitute paid leave?
A: Yes, the employee can elect to use vacation or other paid leave, just as she can for regular FMLA leave. Employers can require the employee to use paid leave.
Q: Must the employee provide notice?
A: Yes. As with regular FMLA leave, the employee must provide notice as soon as possible and practicable.
Q: Must the employer maintain health care benefits during leave?
A: Yes, for up to 26 weeks.
Q: Can employers request certification?
A: Yes. The amendment allows for certification of the illness or injury. The regulations will likely explain the particulars.
Q: When does the new FMLA law take effect?
A: The effective date is January 28, 2008.
Q: Must employers post notice of the new rights?
A: The Department of Labor has published a new poster regarding Military Family Leave. Because the DOL has not yet implemented Military Family Leave regulations, there are no rules regarding the use of this poster. However, a best practice might be to post the poster pending the new regulations. Find it at: http://www.dol.gov/esa/whd/fmla/NDAAAmndmnts.pdf.
Q: Where can I read the amended text of the new law?
A: The DOL has posted the new language at this location: http://www.dol.gov/esa/whd/fmla/fmlaAmended.htm.
Q: When will the DOL publish regulations defining the terms and conditions of the new leave?
A: Unknown. It could take several months.
FREE FORMS
Ask for our complimentary FMLA Family Military Leave Checklist. Email Chris Olmsted at cwo@barkerolmsted.com
Also ask for our complimentary California Leaves of Absence Chart, describing the numerous employee leaves available in California, updated to include the California military spouse leave and the new FMLA leave.
Please contact Chris Olmsted if you have questions regarding the new Military Family Leave.
More Legal Update articles.
Download entire March Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2008 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
|
Copyright © 2007 Barker Olmsted & Barnier.
All Rights Reserved. Powered by Infinitude.net Disclaimer.
Privacy Notice. 