News
Changes to the Family and Medical Leave Act
February, 11 2008
Military Family Leave
Amendments to the FMLA were signed into law on January 28, 2008. These amendments expand one already existing entitlement for families of service members and add a new entitlement.
Important: This provision has been in effect since January 28, 2008. While some of the terms and some details need to be fleshed out by the Department of Labor, employers must be prepared now to handle requests by family members of injured or ill service members for leave.
Service member family leave
Under certain circumstances, an employee who needed time off to care of an injured service member would already have been entitled to up to 12 weeks of FMLA leave. The amendments to the law provide that an employee with a spouse, child, parent or “next of kin” of a covered service member is entitled to up to 26 weeks of leave in a single 12 month period to care for the injured service member if the injury or illness was incurred in the line of duty on active duty in the Armed Forces. Regulations to be issued by the Department of Labor need to answer many questions, including the law’s apparent limitation of the additional leave to a “single” 12 month period instead of any 12 month period like other leaves under FMLA. In the interim, however, it appears the additional leave is only available once. The service member family leave is combined with all other FMLA. This means that any leave taken for another FMLA-qualifying reason within the 12 month period will reduce the 26 week leave entitlement. Similarly, an employee who has used 12 weeks of service member leave is still entitled to an additional 12 weeks of FMLA leave for any of the other qualifying reasons.
Leave for “exigencies” related to family member’s service
The law passed by Congress creates a new qualifying reason for FMLA leave to handle “exigencies” that arise as a result of an employee’s family member’s service on active duty in the Armed Forces. Such leave will be available for up to 12 weeks in any 12 month period, and is combined with all other types of FMLA leave such that leave taken in the 12 month period for any other FMLA-qualifying reason reduces the 12 weeks available for exigencies.
Congress left to the Department of Labor to define what an “exigency” is, and the exigency leave provision does not go into effect until DOL issues regulations implementing it.
DOL has issued an interim poster employers should post, a copy of which may be found at: http://www.dol.gov/esa/whd/fmla/NDAAAmndmnts.pdf.
Proposed Amendments to Existing FMLA Regulations
On February 11, 2008, the Department of Labor issued proposed revisions to the FMLA regulations. While the proposed regulations contain some important changes to employers’ rights and responsibilities under the law, they do not change the basic entitlement an employee has to 12 weeks of leave in a 12 month period. The proposed regulations also do not address in any way the new military leave amendments. Since the final regulations may be different from the proposed regulations, we will address the provisions of the final regulations once they are published.
Employers with 50 or more employees are subject to FMLA and need to revise their policies to account for the new service member provisions. If you would like assistance with this or have questions about this law’s impact on your workplace, please contact us.
Gignilliat, Savitz & Bettis, LLP
900 Elmwood Avenue, Suite 100
Columbia, South Carolina 29201
p. 803-799-9311 f. 803-254-6951
firm@gsblaw.net Contact Us
900 Elmwood Avenue, Suite 100
Columbia, South Carolina 29201
p. 803-799-9311 f. 803-254-6951
firm@gsblaw.net Contact Us