What Employers Need to Know   About the FMLA Expansion

Steps to Take Now

The new military-related family benefits make it important for covered employers t     1. Notify employees immediately of the new benefits.  The FMLA requires covered employers to "post and keep posted on its premises, in conspicuous places" an explanation of the employer's obligations and the rights and benefits of employees. (The Department of Labor has a notice employers are encouraged to post, although it is not required. Click here to print it out. Required language regarding the new benefits should be available once the DOL issues the definition of qualifying exigency.)     2. Add the new benefits to your employee handbook. Typically, covered employers include an FMLA policy in their employee handbooks defining who is eligible for leave and listing the four reasons employees can take FMLA leave. The two new types of leave should be added.     The FMLA previously provided for these types of leave:      The birth and care of an employee's newborn child.      Placement with the employee of a child for adoption or foster care.      To care for an immediate family member (spouse, child, or parent) with a serious health condition.      When the employee is unable to work because of his or her own serious health condition.     The two new types of leave are:      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 on outpatient status; or is otherwise on the temporary disability retired list, for a serious injury or illness."      Any qualifying exigency...arising out of the fact that the spouse, 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.

People are your organization's most important assets.

The law made two changes that expand FMLA rights for military families:

1st Change: Caregiver leave allowed after the Injury or Illness of a Service Member. This new benefit permits a spouse, son, daughter, parent or "next of kin" of a military service member, who has incurred a serious illness or injury in the course of duty, to take off up to 26 weeks of unpaid leave in a 12-month period to care for that person.

Note: These 26 weeks are the total that can be taken in a 12-month period, and are not in addition to the 12 weeks that FMLA provides for other reasons.

This change to FMLA became effective immediately upon enactment.

2nd Change: Leave allowed due to military duty or a call to active duty -  The new law also allows a spouse, child or parent of an individual on active military duty (or one who has been called up) to take up to 12 weeks of unpaid FMLA leave due to "any qualifying exigency" that arises out of the military service.
The law does not define "exigency," but the dictionary definition is "a situation calling for immediate attention, urgency or pressing needs." The Department of Labor (DOL) is preparing regulations that will define the term. Until such regulations are issued, this FMLA change will not be enforced. However, the DOL "encourages" employers to provide this type of leave to military family members in the meantime.

The federal agency is currently soliciting comments about the types of exigencies that should qualify for leave. Some possibilities: Arranging for child care; attending official ceremonies where the military has asked for family participation; making financial arrangements to address a service person's absence; and attending counseling related to the active duty of a family member.

This change allowing leave for qualifying exigencies was added to the law as an additional reason for FMLA leave. In other words, the 12 weeks are combined with the existing reasons for FMLA leave, which are listed in the right-hand box.

Two other significant terms in the new FMLA legislation cover the definitions of servicemember and next of kin:

 A covered servicemember is "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."

 A next of kin is "the nearest blood relative" of an individual.

The new FMLA law states an "eligible employee may elect, or an employer may require the employee, to substitute any of the accrued paid vacation leave, personal leave, family leave, or medical or sick leave of the employee for leave provided under [the new FMLA provision] for any part of the 26-week period of such leave..."

In addition, if a husband and wife are employed by the same employer, the aggregate number of workweeks of leave the couple is entitled to under the new FMLA benefits may be limited to 26 workweeks during a single 12-month period.

Is Your Organization Covered by the FMLA?

The FMLA generally covers all employers who employ 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.

The definition of an eligible employee: Under the FMLA, an eligible employee works for a covered employer and has worked for the employer:

 For at least 12 months.

 For at least 1,250 hours during the 12-month period immediately preceding the start of the leave. (The 12 months of employment need not be consecutive months.)

Finally, keep in mind that many states have additional laws with different rights that apply to employers with fewer employees. And many states also grant employees leave for reasons and periods beyond those granted under the FMLA.


[NOTE: Information and guidance in this article is intended to provide general and helpful information on the subjects covered. It is not intended to provide a legal service for readers' individual needs. For legal guidance in your specific situations, always consult with an attorney who is familiar with employment law and labor issues.]