Law Office Report - Spring 2008
Expanded Leave Granted for Relatives
of Service Men and Women
The federal Family and Medical Leave Act of 1993 (federal FMLA) expanded its reach on January 28, 2008, when President Bush signed into a law an amendment that permits a “spouse, son, daughter, parent or next of kin” to take up to 26 work weeks of leave to care for a “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.” This provision went into effect on the same day that it was signed into law.
An additional amendment to the federal FMLA permits an employee to take FMLA leave for “any qualifying exigency . . . arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.” This provision just quoted is not effective until the U.S. Secretary of Labor issues final regulations defining “any qualifying exigency.” The U.S. Department of Labor is now considering such regulations. In the meantime, the Department of Labor is encouraging employers to provide this type of leave to qualifying employees.
The federal FMLA covers employers who employ 50 or more employees for each working day during each of 20 or more calendar work weeks in the current or preceding calendar year. An employee is entitled to the federal FMLA’s protections if he or she has been employed by the employer for at least 12 months and for at least 1,250 hours during the prior 12-month period. Wisconsin has its own version of an FMLA leave entitlement for employers with over 50 employees, subject to certain qualifications.
The lack of federal regulations that interpret the new, expanded reach of the federal FMLA will make it difficult in the short run for employers to comply with certain features of the new expansion. Comments on the proposed regulations are due from the Department of Labor by April 11, 2008, and most commentators think that final regulations will be adopted soon after that time.
We advise employers to review their employment handbooks, and in particular, the FMLA provisions. As of right now, employers must immediately comply with the provisions providing up to 26 weeks of leave to care for a “covered servicemember.” Employers should immediately modify their FMLA policy and forms in this respect.