Question:

I read last month that there are changes to the Family Medical Leave Act (FMLA) that apply to military service members, but I have not seen anything in the news since then. My company has over 50 full time employees, so I need to know the status of any change in the FMLA.

Answer:

On December 14, 2007, Congress approved amendments to the FMLA that would give expanded leave rights to certain employees whose family members or next of kin are in military service. The proposed amendments were part of the National Defense Authorization Act for Fiscal Year 2008. President Bush failed to sign the bill within the 10 days allowed by the Constitution because he objected to other parts of the bill, resulting in a “pocket veto” of the bill. President Bush stated he will work with Congress to fix the objectionable parts of the bill in January, and some commentators expect that the FMLA amendments will become law in early 2008.

Under current law, eligible employees may take up to twelve weeks of leave during a twelve month period due to the employee’s serious health condition, or to care for a child, parent, or spouse who has a serious health condition. The FMLA applies to employers who employ at least 50 or more part or full time employees each working day in 20 or more workweeks of the current or previous calendar year. The FMLA also applies to all public agencies and most federal employers, even if the public entity has less than fifty employees. In order to be eligible for FMLA leave, employees must have at least twelve months of service with the employer, and must have worked at least 1,250 hours during the twelve-month period preceding the date that the leave begins.

Two new reasons for taking FMLA would be added under the new law. First, employers will be required to grant eligible employees up to twelve weeks of unpaid leave during any twelve-month period due to a “qualifying exigency” arising from the employee’s spouse, child, or parent being on active duty or ordered to active duty in the armed forces. The legislation does not define a “qualifying exigency,” but directs the Secretary of Labor to issue regulations defining a “qualifying exigency.”

Second, the amendments will more than double the amount of leave an eligible employee may take to care for a wounded service member. Under the new law, employers will be required to grant eligible employees up to twenty-six weeks of unpaid leave to care for a wounded service member. The service member must be the employee’s spouse, child, or parent, or the employee must be the service member’s next of kin. Employees are entitled to only one twenty-six week leave period to care for a wounded service member during the employee’s employment. The twenty-six weeks of leave under this provision may be taken on an intermittent or reduced-schedule basis, but all of the twenty-six weeks of leave must be used during a single twelve-month period.

It is expected that if the FMLA amendments are passed, they will become law immediately. Employers should therefore be aware of these new changes so they can address their employees’ requests for leave under these two new qualifying events for FMLA leave.
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