New Twists Make Family Leave Law More Challenging

(Originally published in The Business Journal)

The federal Family and Medical Leave Act continues to plague “covered employers” with its nuances. 

Recent amendments applicable to members of the United States Armed Forces may complicate matters even further.

In general, covered employers are those with 50 or more employees within a 75 mile radius.

FMLA requires an employer to provide 12 weeks of leave per 12-month period to an “eligible employee” to take care of a “serious health condition” for himself/herself or close family members, or for care related to the birth or adoption of a child.

“Eligible employees” are generally those employees who have been employed for at least 12 months and have worked at least 1,250 hours in the previous 12 month period.

In January 2008, FMLA was amended to extend this protection to all families of “covered servicemembers,” meaning active-duty military personnel, reserves and National Guard members. 

New twist: An employer must now provide similar FMLA leave because of a “qualifying exigency” arising out of the fact that the spouse, parent or child of an employee is on active duty or has been called to active duty.

The big question is the definition of “qualifying exigency.” Congress did not define the term but instead left it to the Secretary of Labor to define it.

That part of the law dealing with “qualified exigencies” does not become effective until the Secretary has defined the term in final regulations.

The Secretary is months away from issuing regulations, but in the meantime is encouraging employers to abide by the spirit of the law. 

We can anticipate that the regulations will relate to non-traditional FMLA events such as family adjustment to a servicemember’s departure for duty or death of a service member.

26 weeks of leave: But there is another part of the new law which is already in effect.

Employers must provide 26 weeks of leave in a single 12-month period to an employee who is the spouse, parent, child or next-of-kin of an injured or ill servicemember whose medical condition might cause him or her to be unfit for duty.

This type of leave is similar to traditional FMLA but adds a requirement of 14 more weeks of leave on a one-time basis.  Standard FMLA of 12 weeks per year renews annually. 

Note the addition in the 26 work week part of the law for “next-of-kin” (nearest blood relative).

Other parts of FMLA allow only employees who are the spouse, parent or child of a person with a serious health condition to take FMLA leave.  But under the 26 work week part of the law, an employee who is the next-of-kin of a servicemember (such as an uncle or cousin) may be eligible for FMLA leave.

What if an employee needs family leave to help a servicemember and then needs it for other purposes such as the employee’s own serious health condition? How much family leave can that employee have? 

The law provides up to 26 weeks, including 12 for the employee and another 14 (or more if the employee uses less than 12 for himself/herself) to assist the servicemember.

The procedures for taking service-related leave are similar to those currently in effect for other forms of FMLA leave. The employee has the duty to provide reasonable notice, if possible.

Keep an eye out for the new regulations. Once they have been published, covered employers will have to comply with all provisions.

Employment posters will have to be changed to reflect the changes in the law and regulations.

Gold can be reached at ngold@hhmlaw.com or at (330) 392-1541.