Breaking News! President Bush Signs Law Extending Leave to Families of Military Service Members

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January 30, 2008

It is now law! On Monday, January 28, 2008, President Bush signed the National Defense Authorization Act into law. Section 585 of this Act adds two new qualified events under the federal Family and Medical Leave Act (FMLA) that extend the FMLA leaves to include employees caring for injured service members and family members who have a relative called to active duty.
 
I. Caregiver Leave – Effective on January 28, 2008.
 
Among other things, the federal FMLA currently provides qualifying employees up to 12 weeks of leave per year to care for their own or a family member’s serious health condition. The new law more than doubles the available time off from work to care for injured service members from 12 to 26 weeks per year.
 
The new law provides leaves to care for members of the Armed Forces, including the National Guard or Reserves, who have suffered a serious injury or illness 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 service members who are undergoing medical treatment, recuperation, or therapy, are in outpatient status, or otherwise are on the temporary disability retired list. For this type of leave, the law broadly expands the definition of covered employee to include the next of kin or nearest blood relative of a covered service member.
 
II. Leave Due to Call to Active Duty – Effective When the Secretary of Labor Issues Final Regulations Defining What Qualifies as a “Qualifying Exigency.”
 
Most importantly, the new law will provide 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. No illness or injury is required. Contingent upon the Department of Labor’s (DOL) definition of a “qualifying exigency,” this provision provides 12 weeks of leave to the immediate family of service members called to active duty and would complement certain state family military leave laws that provide for a shorter duration of leave or which only cover spouses of service members (Wisconsin does not yet have such a law). An employer may require that a request for leave be supported by a certification showing that the service member has been called to active duty.
 
III. Other FMLA Requirements Unchanged.
 
Because the new law amends the 1993 FMLA law, other FMLA requirements, such as employee eligibility requirements, returning employees at the end of their leave to the same position they held as when their leave commenced, and continuing group health plan coverage during the leave, will apply to the newly granted types of leave. Also, as with illness/injury type FMLA leaves, employees can use the new leave on an incremental basis or in the smallest increment that the employer’s payroll system tracks.
 
IV. Impact on Wisconsin Employers.
 
All employers subject to the federal FMLA are to have a FMLA policy in place which provides employees with information as to their leave entitlements and rights under the law. Many employer policies coordinate an employee’s federal FMLA leave entitlements with the requirements of Wisconsin’s FMLA and the employer’s internal leave and fringe benefit provisions. These policies, and internal FMLA forms as well, are now outdated and incomplete.
 
In addition, legal developments over past years have impacted how the DOL’s current regulations are applied under the FMLA. In fact, federal courts in various jurisdictions have invalidated certain of the DOL’s regulations.
 
You may have a FMLA policy in place developed by Ruder Ware. If you have such a policy or another such policy and your policy has not been reviewed or updated in light of past FMLA legal developments, now would be the time to do so as the policy will also need to be updated to incorporate the new FMLA military leave entitlements. Your FMLA forms (e.g., employee application for FMLA leave, response to employee’s request for FMLA leave, etc.) will also need to be updated.
If you have questions regarding the above, please contact any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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