Breaking News: FMLA Amended – But Not In A Good Way

Kegler Brown E-mployment Alert

President Bush approved amendments on January 28, 2008, which add important new provisions and grant additional leave under the FMLA. In summary, the new law creates two new protected leaves of absence:

(a) Family members injured on active military duty - The new law allows an employee who is a “next of kin,” or nearest blood relative, to take up to 26 weeks per year off work to care for a family member who is “seriously injured” while on active duty in the U.S. Armed Forces. It applies to military personnel who are undergoing medical treatment or therapy, recuperating from a serious illness or injury, are receiving outpatient treatment or who are on the temporary disability retired listing. The new leave for care of a service member, when combined with any other FMLA-qualifying leaves, may not exceed 26 weeks in a 12-month period. This leave may be taken intermittently, but it must all be taken in a 12-month period. This is a one-time entitlement.

(b) Family member active duty - The law also provides up to 12 weeks of leave per year for a “qualifying exigency” in connection with an employee’s spouse, child or parent who is on or being called to active military duty. The Department of Labor is to issue further guidance on the scope and meaning of a “qualifying exigency.” Employers may require certification that the family member is actually on active duty.

The new law amends the existing FMLA, which means that the other provisions of the FMLA (including the guarantee of reinstatement to the employee’s prior position, continued health insurance, notice requirements, etc.) will apply to the newly-created leaves.

Employers should issue a written Addendum or amend their existing FMLA policy statements to incorporate the new requirements. If you have questions, or need assistance with your policy, please contact us.