Publication

February 11, 2008Client Alert

President Bush Expands the Protections of the FMLA: What Does This Mean for Employers and When?

On January 28, 2008, President Bush signed into law the National Defense Authorization Act for Fiscal Year 2008 (“NDAA”) (H.R. 4986).  Section 585 of the NDAA amends the federal Family and Medical Leave Act of 1993 (“FMLA”) to provide two new types of FMLA leave to employees with family members serving in the military. 

Leave to Care for an Injured Service Member

The NDAA amends Section 102 of the FMLA to expand the maximum amount of time an employee would otherwise be entitled to take off work to care for a family member with a serious health condition from 12 weeks to 26 weeks when the health condition is incurred by a member of the military while in the line of duty on active duty.  Employees eligible for this leave not only include the spouse, children and parents of the injured service member but also his or her “next of kin.”  This leave is available only during a single 12-month period and it is also combined with all other FMLA leaves, limiting FMLA leave for all purposes to no more than a total of 26 weeks of leave during a 12-month period.

This expansion of the FMLA contains the new terms “next of kin” and “covered service member.”  Apparently in an effort to ensure that someone will be available to care for these service members, employers must now grant time off to eligible next of kin.  Next of kin is defined as the “nearest blood relative of that individual.” 

A covered service member is defined as “a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.”  “Serious injury or illness” is limited to mean only “an injury or illness incurred by the member in line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating.”  It should be noted that this rule does not require the service member to be involved with enemy combatants and, therefore, this expansion of the FMLA applies to all service members  no matter where they are serving, including in the United States.

Taken together, while limiting the group that is covered on the one hand to only those service members injured in the line of duty on active duty, the amendment clearly expands the group of employees that will now be eligible for FMLA leave, the types of medical conditions that will trigger FMLA protections, and the total FMLA leave entitlement available to family members of those in the military. 

Leave Due to Active Duty of a Family Member

The NDAA further amends the FMLA to provide that eligible employees are entitled to up to 12 weeks of leave during any 12-month period “because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.”

This qualifying reason for FMLA leave is included as part of the 12 week combined total FMLA leave available to employees in a 12-month period.  Therefore, as an employee exhausts FMLA leave due the birth or adoption of a child, or due to the employee’s or a family member’s serious health condition, the amount of FMLA time remaining to the employee to use because of any qualifying exigency arising out of active duty is reduced.  Therefore, although more individuals may now qualify for leave under this provision of the FMLA, employers are not being required to grant additional time off beyond the historical 12-week period.    

In determining further what this type of leave means for employers, one must understand what  a “contingency operation” is, as well as a “qualifying exigency.”

According to Section 101(a)(13) of Title 10 of the United States Code a “contingency operation” is a military operation that:

    (A) is designated by the (Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against opposing military force; or

    (B) results in the call or order to, or retention on, active duty of members in the uniformed services (as defined by statute), or any other provision of the law during a war or during a national emergency declared by the President or Congress.

Congress chose not to define what a “qualifying exigency” is that would permit an employee who is a spouse, parent or child of a service member to take time off of work.  It is left to the Department of Labor not only to define this term as it issues regulations interpreting the new rules, but also to indicate what role the employee taking FMLA leave for such qualifying exigency would be anticipated to play that necessitates the FMLA leave from work.  At this time, however, employers are left scratching their heads.   The Department of Labor has issued a statement that it is “expeditiously preparing such regulations.”

Certification

Under the FMLA, employers may require employees seeking leave to provide a certification from a health care provider to the extent the absence relates to the serious health condition of the employee or family member.  Under the NDAA amendments to the FMLA, employers may require such a certificate from the service member’s health care provider to support the employee’s absence of up to 26 weeks to care for a service member injured in the line of duty.  Where the leave pertains to a “qualifying exigency” arising out of the service member’s being called up for active duty or being on active duty in a contingency operation, the employer may require that such an absence be supported by a certification “issued at such time and in such manner as the Secretary [of the DOL] may prescribe.”  That is, further regulation is needed for an employer to know what, if anything, it can require from the employee to support this type of absence.

First Modification to the FMLA in Fifteen Years

An amendment to the FMLA is not particularly surprising.  However, the timing and manner in which the amendment came about may be troubling to many.  The FMLA has been controversial since its inception, inciting strong opinions on both the employer and employee sides of these rules.  In 2007, a Department of Labor (“DOL”) survey resulted in over 15,000 comments.  Following consideration of those comments, on January 24, 2008, the DOL proposed new FMLA regulations, based on the version of the law in effect since 1993, to the Office of Management and Budget for approval.  As of the writing of this article, those proposed regulations have not yet been issued to the public.

Now with the new amendment regarding leave relating to service members, further regulatory clarification is required due to gaps and undefined terms left by Congress.  Yet, this amendment to the FMLA was buried in a broader bill, no congressional hearings were held on the provisions, there was relatively little publicity about the provisions, and no lead time was provided to employers to become compliant.  Given the national interest in the FMLA, the number of individuals it affects, and the fact that this is the first amendment to the FMLA in fifteen (15) years, some criticism has been voiced that a more thought-out, coordinated and better communicated amendment did not occur.

Effective Date

Of particular concern to employers is when this amendment becomes effective. At first glance, the legislation appears silent on this issue.  Under such circumstances, legislation typically becomes effective the day it is signed into law, which occurred on January 28, 2008.  As a result, the DOL is taking the position that the provisions pertaining to employees having up to 26 weeks of FMLA leave to care for an injured service member went into effect on January 28, 2008 when the President signed.

Nevertheless, the DOL is also taking the position that the provisions regarding leave because of “any qualifying exigency” related to a family member being on or called up to active duty, will not go into effect until the DOL issues final regulations defining “any qualifying exigency.” 

The DOL reports that it is working quickly to prepare more comprehensive guidance regarding rights and responsibilities under this new legislation.  In the interim, the DOL states that it will require employers to act in “good faith” in providing this new leave.  What does that mean?

We suspect it means that the DOL will expect employers to immediately start granting eligible employees up to 26 weeks of FMLA leave to care for a service member injured in the line of duty.  However, given the lack of a definition of the term “qualifying exigency” coupled with lack of regulatory guidance to assist employers in administering these new provisions, we suspect that the DOL will provide employers some breathing room and draft the regulations in a manner so that compliance with the new 12-weeks of leave for active duty provisions do not go into effect until the issuance of the DOL regulations.  We would also hope that the DOL would show some leniency in the enforcement of these new provisions until employers have a chance to become aware of and adapt to these new rules as they evolve.

In the interim, employers must act now to be in good faith compliance with these new rules pending further regulatory guidance, in particular, granting up to 26 weeks for a family member to care for an injured service member.  When granting this new leave, we anticipate that the DOL will consider employers to act in “good-faith” if they follow the normal FMLA procedures that historically have been used when an employee requests leave relating to the needs of a family member.  For example, we anticipate an employer will be found to act in “good faith” if the employer continues to administer its FMLA leave policies as it had done before, but when leave involves family members who are absent under  these new provisions, the employer does its homework in attempting to comply with the new requirements.

Once the DOL issues its regulations, employers will need to be prepared.  With this change will come the need to revise and reissue FMLA policies and administration forms and procedures, as well as to train managers and supervisors on these new provisions and communicate the new FMLA eligibility rights to employees.    

If you have questions about the FMLA, the impact of these new amendments, or how you can effectively administer FMLA leave contact Amy Hartwig at 414.225.4973, or via email at adhartwig@michaelbest.com or Charlie Stevens at 414.225.8268, or via email at cpstevens@michaelbest.com.

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