FMLA Amended to Provide Extended Leave to Care for Sick or Injured Military Service Members.

By John P. Boggs, Esq. a Partner at the law firm Fine Boggs & Perkins LLP March 2008

On January 28, 2008, President Bush signed a law that amends the federal Family Medical Leave Act "the seminal law that provides eligible employees with up to 12 weeks of unpaid leave per year for family medical reasons" to provide for certain military-related leaves of absence.

The new amendment allows eligible employees 12 weeks of unpaid leave because of "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 to active duty status, in support of a contingency operation. The U.S. Department of Labor has yet to define the terms "qualifying exigency," but says "employers are encouraged to provide this type of leave to qualifying employees." In short, if an otherwise eligible employee requests leave due to the fact that a spouse or other qualified individual has been called to active military service, consult counsel to determine whether the leave request qualifies under this new amendment to the FMLA.

In addition, under the new amendment, an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered service member who is recovering from a serious illness or injury sustained in the line of duty on active duty is entitled to up to 26 weeks of leave in a single 12-month period to care for the sick or injured service member. This military caregiver leave is available during a "single 12-month period" during which an eligible employee is entitled to a combined total of 26 weeks of all types of leave under the FMLA.

These new amendments greatly expand the FMLA's coverage and create new liability "traps" for unwary employers. Given that it is the employer's obligation to determine whether the employee's request for leave may qualify under the FMLA, employers need to make sure their office management and human resources personnel are aware of these military-related amendments to the FMLA. Employers may now have to ask a few more questions to determine whether employees are eligible for leave under the FMLA. Stay tuned for further updates on the new FMLA amendments as well as any new employer postings the U.S. Department of Labor may issue regarding these amendments.