Is It Time To Update Your FMLA Policy?

Kegler Brown E-mployment Alert

Some time ago, the Department of Labor issued a notice of proposed changes to the FMLA regulations. Comments on the proposed changes were due last month. The Department will presumably consider the comments and issue the final changes, hopefully by year end. When the new changes take effect, your FMLA procedures and forms will change, and your FMLA policy will have to be revised to incorporate the new material.

However, the recent National Defense Authorization Act amended the FMLA to include leave for families of members of the armed services who are called to active duty, as well as allowing expanded leave to care for family members who are injured in military service.

The first part of the new law - which allows certain family members up to 12 weeks of FMLA leave for a “qualifying exigency” when a family member is called to active duty - is not yet effective. The DOL has stated that it will not become effective until more definitions (such as what is a “qualifying exigency”) are issued by the Department.

However, the second part of the new law is now effective. This amendment of the FMLA provides that eligible employees (a) who are the spouse, son, daughter, parent, or next of kin of a covered member of the armed services, (b) are entitled to a total of 26 weeks of leave during a single 12-month period, (c) to care for the servicemember who is undergoing medical treatment, recuperation, or therapy for a serious illness or injury incurred in the line of active duty. This leave may be taken intermittently or on a reduced schedule basis. The employee must give “reasonable and practicable” notice, and the employer may require certification of the servicemember’s medical condition.

Not surprisingly, there are a number of unanswered questions about the new requirements, and the DOL is currently seeking comments on a number of them. Nonetheless, the new provisions concerning injured or ill servicemembers are now effective.

Some employers are issuing a short amendment or addendum to their current FMLA policy to make reference to the new injured servicemember leave, its availability, and its basic provisions. Others have decided to wait and revise their FMLA policy on a comprehensive basis, after the new FMLA regulation changes become final and after there is more information available on the two new servicemember requirements. If that is your choice, we recommend that you consider at least two things: (a) post a notice about the current availability of the leave for injured or ill servicemembers, and (b) be sure that the people who administer your leave policies (HR, supervisors, etc.) are aware of the new servicemember leave requirements, so that the leaves can be correctly identified and handled between now and when your policy is formally amended or rewritten.