For the first time since the Family and Medical Leave Act's enactment in 1993, the law's leave protections have been extended to the family members of U.S. military service men and women. The amendments are part of a revised defense authorization bill and are identical to amendments included in a Department of Defense appropriations bill, which passed the House of Representatives and the U.S. Senate late last year. President Bush vetoed the previous bill for reasons unrelated to the FMLA amendments, but signed the new bill yesterday. The new amendments, which took effect yesterday, serve to further complicate an area of law that already is challenging for employers.

Under the amendments, covered employers will be required to offer up to 26 weeks of unpaid leave to employees who are caring for a "covered servicemember" wounded in the line of duty. A "covered servicemember" is one who is undergoing medical treatment, therapy or recuperation, is in outpatient status or is on the temporary disability retired list (TDRL) for a serious injury or illness. (A servicemember who would be eligible for retirement but for the fact that his or her injury in the line of duty has not yet been determined to be permanent in nature, maybe be placed on the TDRL. Military personnel may remain on the TDRL for up to five years.) The serious injury or illness must have occurred in the line of duty while on active duty in the Armed Forces, and the injury must have rendered him or her "medically unfit to perform the duties of the member's office, grade, rank or rating."

To be eligible for the extended period of 26 weeks of unpaid leave to care for an injured servicemember, the employee must be the spouse, son, daughter, parent or next of kin to the servicemember. "Next of kin" is defined in the statute as "the nearest blood relative" of the servicemember. The statute does not specify what steps an employer may take to determine if an employee qualifies as a next of kin; however, under the existing regulations, reasonable documentation of qualifying family member status may be requested by the employer.

In addition, the amendments require covered employers to provide 12 weeks of FMLA leave to the immediate family members (spouses, children or parents) of military personnel and reservists who have a "qualifying exigency" arising out of the servicemember's call to active duty. The term "qualifying exigency" is not defined in the amendments, but the amendments state that it will be defined by regulation by the Department of Labor (DOL). Some of the instances that could be covered by the term are overseas assignments, recalls to active duty, and troop mobilizations.

Under both expansions of FMLA eligibility, an employer may require that a request for leave be accompanied by a certification that the servicemember has been called to active duty. In addition, the other FMLA requirements that apply to non-military related leaves would apply to employees taking leave to care for military personnel, such as job restoration and continuation of benefits. Employees taking leave under the amendments will be able to take the leave intermittently. The employee must provide notice to the employer of a need for leave as is "reasonable and practicable."

The DOL has stated that it will issue new regulations on the amendments as soon as possible after the law is passed. As the amendments are currently written, it appears that they will become effective as soon as the bill is signed by the President. As a result, while the law is in effect immediately, employers will be required to comply initially without guidance from the DOL in the form of regulations.

The amendments are available by clicking here. As stated above, the amendments are a further complication in an already complicated area of employment law, particularly in the absence of DOL regulations. If you are confronted with a request for leave under the amendments, any member of Ballard Spahr's Labor, Employment and Immigration Group may be contacted with specific questions or for general assistance in guiding you through the leave request. In addition, Ballard Spahr’s attorneys are available to assist you in revising your FMLA policies to reflect the changes.

Copyright © 2008 by Ballard Spahr LLP.
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