Major Expansion of FMLA Allows Six-Month Leave to Care for Injured Servicemembers

Employees may take up to six months of job- and benefit-protected leave to care for family members injured in the line of active military duty. In certain other circumstances, workers may take up to 12 weeks of leave when a family member is on active duty or has been notified of an impending call to active duty.

President Bush signed the National Defense Authorization Act (H.R.4986) into law on January 28. The new leave entitlement is effective immediately, giving employers little time to review and implement the new requirements. The act moved through the legislative process rather quickly and with little legislative debate, leaving some loose ends. The U.S. Department of Labor (DOL) has regulatory authority and is working on guidance. In the meantime, employers must make a good faith effort to comply with the new law. Eligible employees may request leave soon.

Six Months Leave to Care for Injured Servicemember
This is the first expansion of the Family and Medical Leave Act (FMLA), which originally required employers to allow employees to take up to 12 weeks of unpaid, job-protected leave after the birth or adoption of a child; to care for a sick child, parent or spouse; or when the employee has a serious illness.

The National Defense Authorization Act adds “servicemember family leave” to the FMLA. Employers must allow eligible employees to take up to 26 weeks of leave to care for a spouse, child, parent or next of kin who is a covered servicemember recovering from a serious injury or illness suffered in the line of active military duty.

A covered servicemember must be “undergoing medical treatment, recuperation or therapy, is otherwise on outpatient status, or is on the temporary disability retired list” for a “serious injury or illness.” The serious injury or illness must have occurred in the line of active duty and may render the servicemember unable to perform the duties of his or her office, grade, rank or rating.

The expanded FMLA allows a total of 26 weeks of leave during one 12-month period. So an employee could take 12 weeks of traditional family and medical leave and then take up to 14 weeks of servicemember family leave during the same year. However, servicemember family leave will not interfere with eligibility for traditional family and medical leave in the future. For example, an employee could take 26 weeks of servicemember family leave during 2008 and 12 weeks of leave to care for a new baby during 2009. Married couples who work for the same employer are limited to a combined total of 26 weeks of leave. Servicemember family leave may be taken on a reduced or intermittent basis.

Leave in Connection With Active Duty Status or Call to Active Duty
The act also provides up to 12 weeks of leave in connection with “any qualifying exigency” arising from an employee’s spouse, child or parent being on active duty or being notified of an impending call or order to active duty. The DOL is working on regulations to define “any qualifying exigency.” If the need for leave is foreseeable, the employee must provide “reasonable and practicable” advance notice. Employers may require certification, and the DOL will stipulate submission requirements in its regulations.

FMLA Protections Apply
These new leave entitlements have been incorporated into the FMLA, so all FMLA requirements and protections apply. For example, to be eligible for leave, employees must have been employed by the employer for at least 12 months and performed 1,250 hours of service during the 12 months immediately preceding the leave. Upon returning from leave, employees must be restored to the same or an equivalent position. During the leave, the employer must maintain the employee’s health coverage at the same level and under the same conditions that would have applied had he or she remained continuously employed. FMLA leave generally is unpaid, but the employee may choose to use paid leave, such as accrued vacation or sick leave, or the employer may require that the employee use paid leave.