New Law Expands FMLA for Military Families

February 11, 2008

The past three weeks have seen more changes and potential changes to FMLA than the past 12 years. First, in late January, the National Defense Authorization Act (NDAA) expanded FMLA protections to families of active military servicemembers. Then, on February 11, 2008, the Department of Labor (DOL) issued 127 pages of proposed regulations addressing numerous comments received last year.

The NDAA

The DOL has stated that it is “working quickly to prepare more comprehensive guidance” on some uncertainties with the new law, but until then, employers should act in good faith in complying with its requirements which became effective immediately.

What the NDAA expansion essentially does is create a fifth type FMLA leave: military family leave. Recall that the other four types of leave are for childbirth, adoption, and the serious health condition of the employee or an immediate family member. A servicemember is anyone who has been called up to active duty in the U.S. Armed Forces.

There are two types of military family leave. First, an employee can take up to 12 weeks of leave per 12-month period for a qualifying exigency that occurs because the employee’s spouse, parent or child is on or has been called to active duty. The DOL is charged with defining the term “qualifying exigency.” An example might include taking time off during the home leave of a servicemember spouse. Until the regulations are issued, employers are encouraged, but not required, to offer leave for qualifying exigencies.

Second, when a servicemember returns from active duty and has a serious injury or illness, an employee can take up to 26 weeks per 12-month period to care for the servicemember. The injury or illness must occur in the line of duty and render the individual unfit to perform military duties. It is unclear how a serious injury or illness compares with the traditional FMLA standard of a “serious health condition.” While FMLA traditionally has extended only to caring for an employee’s immediate family, the NDAA expansion for care includes next of kin, defined as the nearest blood relative of that individual. The NDAA also directs the DOL to clarify what certification an employer can require for both types of military family leave.

As with other types of FMLA leave, military family leave can be taken intermittently and is subject to HIPAA portability. Employers may substitute paid leave (e.g., vacation) for unpaid leave during military family leave.

Prudent employers should immediately take four steps:

• Review and revise existing FMLA policies
• Communicate to all employees the availability and requirements of FMLA military family leave
• Grant FMLA military family leave on a good faith basis in the absence of clarifying regulations
• Look for the clarifying regulations in the Federal Register (Infinisource will keep you apprised of when this occurs) and make any needed policy changes

The DOL has a good summary of the FMLA provision at www.dol.gov/esa/whd/fmla/NDAA_fmla.htm. The DOL has posted a military family leave insert for your FMLA poster at: www.dol.gov/esa/whd/fmla/NDAAAmndmnts.pdf.

The Proposed Regulations

The Proposed Regulations include a request for comments related to the NDAA on those provisions where the DOL is required to provide guidance, as indicated above. The major focus of the Proposed Regulations is to address issues related to its original Final Regulations, issued in 1995.

Armed with feedback from more than 15,000 comments (including those from Infinisource), the DOL addressed many concerns related to FMLA, including serious health conditions and intermittent leave. It has also revised or added the following forms:

• WH-380, Certification of Health Care Provider
• WH-381, Eligibility Notice to Employees (formerly known as the Employer Response to Employee Request for Family or Medical Leave)
• WH-382, a new and optional Designation Notice that employers can use to satisfy their leave designation duty
• WH Publication 1420, General Notice to Employee of FMLA rights (i.e., the FMLA poster)

The DOL’s comment period will end on April 11, 2008. This deadline applies to both the Proposed Regulations as well as the regulations needed to clarify military family leave. The Proposed Regulations do not take appear to take effect until the Final Regulations have been issued. Over the next few months, Infinisource will review these Proposed Regulations extensively and determine what comments to provide the DOL.

A copy of the Proposed Regulations is available on the Federal Register website at:www.access.gpo.gov/su_docs/fedreg/a080211c.html.