Legal Bulletins

President Bush signed into law amendments to the Family and Medical Leave Act (FMLA) which create two new types of leave for employees who have family members in the military. Under the amended law, an employee who is eligible to take FMLA leave will be permitted to take protected leave: (i) to care for a military family member with a serious injury or illness, and (ii) for any "qualifying exigency" arising out of the fact that a family member in military service is on active duty or has been notified of an impending call to active duty status.

Caregiver Leave

The caregiver leave provision permits a FMLA eligible employee who is the spouse, child, parent, or next of kin (i.e., nearest blood relative) of a "covered service member" to take a total of 26 work weeks of leave during a 12-month period to care for the service member. A "covered service member" is a member of the armed forces (which includes the National Guard and Reserves) who is undergoing medical treatment, recuperation or therapy, is otherwise in outpatient status, or is on the temporary disability retired list, for a serious injury or illness that "may render the member medically unfit" to perform his or her duties in the military. The 26 weeks of caregiver leave is only available during a single 12-month period. Additionally, during any 12-month period, an employee’s total FMLA leave for all purposes (caregiver leave, exigency leave, family leave, and/or medical leave) is limited to a total of 26 weeks.

"Exigency" Leave

The amended law will allow a FMLA eligible employee who has a spouse, child, or parent on active duty to take up to 12 work weeks of leave during any 12-month period to deal with issues arising out of a "qualifying exigency." The Department of Labor (DOL) has not yet defined what constitutes a "qualifying exigency", but has stated that because the statute uses the word "qualifying", not every exigency will entitle a military family member to such leave; there must be some "nexus" between an employee’s need for leave and the service member’s active duty status. The DOL also stated that leave for "qualifying exigencies" should be limited to non-medical related events, and suggested that covered events might include: making arrangements for child care, making financial and legal arrangements to address the service member’s absence, attending counseling related to the active duty of the service member, attending official ceremonies or programs where participation of the family member is requested by the military, attending the departure or arrival of the service member, and attending to affairs caused by the missing status or death of the service member.

An employee is limited to a combined total of 12 weeks of exigency leave, family leave, and medical leave during a 12-month period.

Paid or Unpaid?

An employee may elect to use - or the employer may require the employee to use – accrued vacation and/or personal leave when taking exigency leave, and accrued vacation, personal, and/or sick/disability leave when taking caregiver leave. The remainder of the leave can be unpaid.

Can Employers Require Certification of the New Types of Leave?

Employers may require employees to furnish traditional medical certifications when taking caregiver leave. In addition, although the DOL indicated it is likely to implement some certification requirement for exigency leave, it has not yet determined what type of information will be required, who may issue the certification, when it must be provided, or how (or if) employers will be permitted to authenticate the information.

Can the New Types of Leave Be Taken on an Intermittent Basis?

Both new types of leave may be taken on an intermittent basis subject to applicable notice and certification requirements.

When Must Employers Begin Granting the New Leave?

The caregiver leave requirements became effective on January 28, 2008, so employers must consider and, if appropriate, approve caregiver leave requests. Exigency leave will not be effective until the Secretary of Labor issues final regulations defining what constitutes a "qualifying exigency." On February 11, 2008, the DOL issued a request for public comments on its revised FMLA regulations, including what should be the appropriate contours of exigency leave.

Proposed Changes to Original FMLA Regulations

In addition, on February 11, 2008, the DOL published proposed types of regulations which revise some rules governing the administration and implementation of the original family and medical leave. The comment period for the proposed regulations closes on April 11, 2008, and final regulations concerning the original FMLA leave provisions as well as both new types of leave for military families will likely be published thereafter.

Changes to FMLA Policies and Forms

Employers should promptly update their existing FMLA policies and forms to provide for military caregiver leave. In addition, after final regulations are issued, employers will need to revise their policies and forms to include exigency leave and to incorporate changes required by the revised regulations regarding family and medical leave.

If you would like information or assistance in complying with the recent amendments to the FMLA or with any other issue relating to an employer’s obligations with respect to leaves of absence, please contact:

Chuck Bacharach 410-576-4169 cbacharach@gfrlaw.com

Bob Kellner 410-576-4239 rkellner@gfrlaw.com

Mike Smith 410-576-4174 msmith@gfrlaw.com

This bulletin is designed to inform you of current legal developments and should not be construed as legal advice or opinion concerning specific factual situations.