FMLA Amended to Extend Leave to Families of Servicemembers – December 14, 2007

Congress passed the 2008 National Defense Authorization Act which included provisions providing for (a) up to six months of leave for family members caring for military veterans injured while on active duty in the U.S. Armed Forces and (b) 12 weeks of leave to family members of servicemembers called up to active duty under certain circumstances.

The legislation modifies in several significant ways the federal Family and Medical Leave Act of 1993 (“FMLA”), which currently provides qualifying employees up to 12 weeks of unpaid leave per year to care for their own or a family member’s serious medical condition. The new statute more than doubles the available time off from work to care for injured servicemembers, from 12 to 26 weeks per year, and makes eligible for leave a new category of employees who have immediate family members called to active duty, apparently without regard to any medical issues.

The new law covers leaves to care for members of the Armed Forces, including the National Guard or Reserves, who have suffered a serious injury or illness in the line of duty while on active duty, that may render the members medically unfit to perform the duties of their office, grade, rank, or rating. It applies broadly to servicemembers who are undergoing medical treatment, recuperation, or therapy, are in outpatient status, or otherwise are on the temporary disability retired list, for a serious injury or illness. For this type of leave, the statute expands the definition of covered employee to include the “next of kin,” or nearest blood relative, of a covered servicemember.

The statute provides up to 12 weeks of leave because of any “qualifying exigency” arising out of the fact that a covered employee’s spouse, child or parent is on or has been called to active duty in the Armed Forces. Contingent upon the Department of Labor’s definition of a “qualifying exigency,” this provision provides 12 weeks of leave to the immediate family of servicemembers called to active duty and would complement state family military leave laws that provide for shorter duration of leave or only cover spouses of servicemembers. An employer may require that a request for such leave be supported by certification showing that the servicemember has been called to active duty. Seven states (California, Illinois, Indiana, Maine, Minnesota, Nebraska and New York) have passed state family leave laws which are somewhat different than the new federal law. Employers must be sure to address these state law issues in their policies.

As current FMLA requirements provide, returning employees must be restored to the same position as when their leave commenced and group health plan coverage must be continued during the new types of leave.