FMLA Expanded for Families of Military Service Members

Recent amendments to the federal Family and Medical Leave Act (FMLA) provide eligible employees two new leave rights related to military service.

Effective January 28, 2008, employers with 50 or more employees must provide up to 26 weeks of unpaid leave for family members caring for U.S. service members injured while on active duty. The leave to care for a wounded service member also expands the definition of covered employees to include "next of kin" in addition to a spouse, son, daughter or parent.

In addition, FMLA-eligible employees will be able to take up to 12 weeks of leave for "any qualifying exigency" due to the fact that the spouse, son, daughter, or parent of the employee is on active duty, or has been notified of an impending call to active duty status. The Secretary of Labor must issue regulations defining "any qualifying exigency" before this leave entitlement takes effect.

There are still many unanswered questions about these changes, including what "next of kin" means, how often leave is available, what qualifies as an "exigency," etc. that hopefully will be addressed soon in Department of Labor (DOL) regulations.

FMLA Regulatory Changes Pending

Unrelated to the new military leave rights, DOL has issued proposed changes to the FMLA regulations, covering such issues as employer and employee notice requirements, medical certifications, the definition of serious health condition, substitution of paid leave, etc. Click here for a summary of main proposed regulatory changes – and for more information, go to the DOL website at www.dol.gov/esa/whd/FMLANPRM.htm. The comment period ended on April 11, but DOL has not yet indicated when the final regulations will be available.

Other Leave Developments on the State Level

As if it wasn’t difficult enough to wade through the often conflicting maze of Federal and State leave laws, the 2008 Washington State Legislature added two new leave laws to the mix: one that provides leave for spouses of deployed military personnel and one that provides leave for victims of domestic violence and their family members.

Effective June 12, 2008, SSB 6447 provides up to 15 days of unpaid leave to employees before a spouse is deployed or while on leave from deployment. Effective April 1, 2008, HB 2602 allows victims of domestic violence, sexual assault or stalking to take "reasonable" or intermittent leave from work to obtain legal or law enforcement assistance, medical treatment or counseling.

The Department of Labor and Industries is beginning the rule-making process for both laws. Go to www.lni.wa.gov/workplacerights/leavebenefits/familycare for initial information, including fact sheets on both laws and a chart summarizing all state and federal leave laws (which has yet to be updated to reflect the new laws).

A number of law firms have prepared in-depth analyses of the new federal and state laws, outlining the practical implications for public employers and identifying questions that have yet to be answered. For copies, contact Luann Daniels at AWC, luannd@awcnet.org.

 
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