Question:

I read that President Bush signed an amendment to the Family Medical Leave Act. I am the Human Resources Manager for a company that has more than 50 employees. What should I be doing in response to these amendments?

Answer:

You are correct. Just last week, on January 28, 2008, President Bush signed into law H.R. 4986, the National Defense Authorization Act for fiscal year 2008. Among other things, this act amends the Family and Medical Leave Act of 1993 (FMLA). The amendments add two new types of leave.

The first new type of leave provides 12 workweeks of unpaid FMLA leave during a 12 month period to an eligible employee because of any “qualifying exigency” arising out of the fact that the spouse, child or parent of the employee is on active duty (or has been notified of an impending call to active duty) in the Armed Forces in support of a contingency operation. This “qualifying exigency” leave does not become effective until the Secretary of Labor issues final regulations defining a “qualifying exigency.” Draft regulations have been submitted to the Office of Management and Budget, and after a 60-day public comment period, regulations will be issued. However, the Department of Labor urges employers to provide this leave based on a “reasonable interpretation” of the statute, until the Department of Labor issues its regulations.

Some of the features of the “qualifying exigency” leave that are apparent on the face of the amended statute are that the leave can be taken by the employee intermittently or on a reduced leave schedule, but the employer cannot require an employee who is taking intermittent or reduced schedule leave to transfer to an alternate position. The employee is not required to provide 30 days notice for foreseeable “qualifying exigency” leave, but must provide notice that is reasonable and practical. The employer may request a certification to verify that the employee’s parent, child, or spouse has been called to active duty.

The second new leave that is added by the FMLA amendments is “Servicemember Family Leave.” Servicemember Family Leave allows 26 workweeks of unpaid leave during a 12 month period to permit an eligible employee who is the spouse, child, parent, or next of kin (closest blood relative) of a servicemember to care for the servicemember who is undergoing medical treatment, recuperation, or therapy, is in outpatient status, or is on the temporary disability retired list, for a serious injury or illness. The new Servicemember Family Leave is effective January 28, 2008.

Some of the features of the Servicemember Family Leave are that it is available only once during a 12 month period, it can be taken intermittently or on a reduced leave schedule, and the employer can require the employee to transfer to an alternate position that better accommodates the need for intermittent or reduced leave schedule. The employer can require the employee to schedule treatment so as not to unduly disrupt the employer’s operations, and the employee is required to provide 30 days notice if the need for Servicemember Family Leave is foreseeable. The maximum allowable leave is 26 weeks in a 12-month period, and the employer may request a medical certification to verify the fact that the employee is needed to care for the family member or next of kin due an injury or illness.

Employers who are subject to the Family Medical Leave Act will need to amend their Family Medical Leave Act policies to include these new leave requirements. However, employers should wait until the final regulations are issued to publish their revised FMLA policies. The amended statute is available on the Department of Labor’s website at www.dol.gov/esa/whd/fmla/fmlaamended.htm.

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