Richard D. Alaniz

Under a new law, employers who are already covered by the Family and Medical Leave Act (50 or more employees) may need to expand their list of employees who qualify for unpaid time off, and the amount of unpaid time that employees can take off has more than doubled in some cases.

In January, President Bush signed the National Defense Authorization Act of 2008 (NDAA). While most of the act deals with military funding, part of it expands the Family and Medical Leave Act (FMLA) to allow employees to take additional time off to care for family members who have been wounded during military service or for emergencies that arise when a family member is on active duty or has been called to active duty. The U.S. Department of Labor is still ironing out the details, but employers should start work immediately to develop policies that will comply with these new requirements, which are already in effect.

The changes amend FMLA by permitting a “spouse, son, daughter, parent, or next of kin” to take up to 26 weeks’ worth of leave to care for a family member in the armed services who is seriously injured or ill. The act also allows employees to take up to 12 weeks of unpaid leave “for any qualifying exigency” when a spouse, child, or parent is on active duty or has been notified of an impending call or order to active duty.

Until the implementing regulations have been finalized, companies will have to use their best judgment when determining how to work with employees who request time off under the new regulations. “In the interim, [the Wage and Hour Division of the Department of Labor] will require employers to act in good faith in providing leave under the new legislation,” the Department of Labor announced. “Because the NDAA amends the FMLA, FMLA-type procedures should be used as may be appropriate.”

Besides expanding the types of situations that qualify for unpaid leave, the defense act also more than doubles the amount of time that employees can take off to care for an injured or ill family member in the armed services.

Under the provision for serious injuries or illnesses, a qualified employee can 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.” An employee can only utilize this leave once during a 12-month time period, according to the act.

Under the active duty provision, an employee can take up to 12 weeks of unpaid leave because of any urgent situation that arises “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.”

The Department of Labor still must clarify several aspects of the new act. There are currently no parameters for determining what is a “qualifying exigency.” It is also not clear how the department will decide what constitutes “seriously injured or ill,” but current interpretations will probably be continued. The wording of the National Defense Authorization Act differs from the wording of FMLA, which allows employees to take unpaid leave when they or an immediate family member has “a serious health condition.”

Until these issues have been clarified, companies should treat requests for leave under these new provisions as they would any other request for time off under FMLA:

• Employees should be expected to provide notice, to the extent possible, when they request leave;

• Employers must continue to provide health benefits for employees who have taken leave;

• Employees must be reinstated to the same, or an equivalent, job when they return from leave; and

• Employees can take the time off on an intermittent schedule.

Employers must actively work to stay up-to-date on the changes and final guidances that the Department of Labor will be releasing. Those changes can be found at www.dol.gov/esa/whd/fmla/NDAA_fmla.htm.

The provisions in the National Defense Authorization Act represent the most significant changes to FMLA since it became law in 1994. While updating procedures to cover the new rules, employers should take the opportunity to review all of their relevant policies to ensure that those are still adequate and that they are being properly communicated to employees.

These will not be the only changes to FMLA. In February, the Department of Labor published a proposal to update other aspects of the 15-year-old act. “This proposal preserves workers’ family and medical leave rights while improving the administration of FMLA by fostering better communication in the workplace,” said Victoria A. Lipnic, assistant secretary for the Employment Standards Administration, in a statement.

Among the proposed changes will be an increased notice obligation for employers, so that employees will better understand their rights under FMLA, according to Lipnic.

Publication date: 03/24/2008