New FMLA Amendment Affects Military Families

President Bush signed into law H.R. 4986, the National Defense Authorization Act (“NDAA”) on January 28, 2008. The amendment creates two new types of FMLA leave and one new category of eligible employee.

First, the spouse, son, daughter parent or next of kin may take up to 26 weeks of leave in a 12-month period to care for care for family members in the Armed Forces, including the National Guard or Reserves. “Next of kin” is defined as “the nearest blood relative” of the service member, for service members who do not have a spouse, child or parent to care for them. This amendment went into effect on January 28, 2008.

Second, the NDAA provides up to 12 weeks of leave for a “qualifying exigency” arising out of the employee’s spouse, child or parent being on active duty or being called to active duty. This aspect of the amendment has not yet taken effect, because the Department of Labor has not yet issued regulations defining “qualifying exigency.” The expanded leave under the amended is inclusive of, and not in addition to, the 12 weeks leave to which employees are already entitled under the FMLA.

Other Proposed FMLA Regulations

The Department of Labor also issued proposed regulations under the FMLA, which were published in the Federal Register on February 11, 2008. Some of the proposals include:

-Providing a remedy for employees under the FMLA if they can show that the employer’s failure to designate leave as FMLA leave interfered with, restrained, or denied the employee of his FMLA rights, and that the employee suffered harm as a result;

-Confirming that “light duty” does not reduce the amount of FMLA leave to which the employee is entitled;

-Removing language in the current regulations that states that employees who do not receive proper notice of FMLA rights are deemed to be eligible for FMLA leave;

-Allowing employers to deny bonuses, such as bonuses based on hours worked, to employees who do not qualify due to their taking FMLA leave;

-Clarifying the definition of “serious health condition;”

-Modifying procedures with respect to required notices, medical and fitness for duty certifications, and designation of leave

Employers must be aware that the above proposed regulations are not yet in force. Employers should continue to adhere to the current regulations until the Department of Labor issues its final, revised regulations.

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