The Family and Medical Leave Act: Expanding Rights

The FMLA became effective for many employers and employees on August 5, 1993.  It covers employers that employ at least 50 individuals during 20 or more work weeks in the current or preceding calendar year. The FMLA provides eligible employees with up to 12 weeks of unpaid leave during a 12-month period for:

1. The birth and care of a newborn child

2. Foster care or adoption of a child

3. Care of a spouse, child or parent who has a serious health condition

4. A serious health condition that renders the employee unable to perform his/her job.

Earlier this year, the FMLA was expanded for the first time since its implementation in 1993. The National Defense Authorization Act for Fiscal Year 2008 (NDAA) enhanced leave eligibility and length by creating two new categories of FMLA leave for employees with family members serving in the U.S. military.

The first new category of leave permits an eligible employee who is the spouse, son, daughter, parent or next-of-kin of a covered service member to take up to 26 weeks of unpaid leave during a 12-month period. The purpose of the leave is to allow the employee to care for a family member who is undergoing medical treatment, recuperation or therapy, is in out-patient status, or is on the temporary disability retired list for a serious injury or illness incurred while in the line of duty. The FMLA recognizes leave eligibility for the first time for employees who are considered next-of-kin.  Next-of-kin is defined as “the nearest blood relative” of the service member.

This new leave category increases the traditional FMLA leave period from 12 weeks to 26 weeks per 12-month period.  Like traditional FMLA leave, service member family leave may be taken intermittently or on a reduced schedule basis.  It is subject to the procedural conditions and requirements of regular FMLA leave.

An eligible employee will not be entitled to compound service member FMLA leave and traditional FMLA leave in a 12-month period.  The 26-week leave period is a maximum.  Thus, while service member FMLA leave and traditional FMLA leave may both occur and be combined within a 12- month period, the 26-week leave limit may not be exceeded.  For example, if an employee takes a 12-week FMLA leave for his own serious medical condition, he will only be entitled to 14 weeks of service member FMLA leave within the same 12-month period.

The second new category of FMLA leave permits employees to take a total of 12 weeks of leave for a “qualifying exigency” arising out of the fact that the employee’s spouse, son, daughter or parent is on active duty or has been notified of an impending call or order to active duty in the armed forces in support of contingency operations.  The term “qualifying exigency” is not defined by law. The Department of Labor has been authorized to define what constitutes a qualified exigency through its regulations.

In light of the amendments to the FMLA, employers should review and where appropriate, update personnel policies, handbooks and FMLA leave forms to be consistent with law. They should also take steps to apprise employees of their new FMLA rights. Employer notices should also be reviewed for legal compliance.

The Department of Labor will be providing guidance and updates as to its interpretation and application of the amendments to the FMLA on a periodic basis. Employers may check periodically for such updates.

Karen Bush Schneider is a shareholder with White, Schneider, Young & Chiodini, PC, a law firm specializing in employment and benefits law.








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