On January 28, 2008, President Bush signed into law H.R. 4986, the National Defense Authorization Act of 2008. Among other things, H.R. 4986 significantly amends the Family Medical Leave Act of 1993 (FMLA) to extend coverage to employees to care for family members injured while on active military duty. The Amendment became effective upon the President's signature.

It is, by now, well-documented that military members who are injured in battle are surviving in record numbers, leaving active duty and requiring short and long-term care to convalesce. This law recognizes this new fact of life for military families and permits them six months of protected unpaid leave to care for family members who return injured from an active duty deployment. Employers must review and amend their leave policies to acknowledge this substantial change to the FMLA. Because HR 4986 amends the FMLA, and not the Uniformed Services Employment and Reemployment Rights Act (USERRA), it applies only to employers with 50 or more employees. Thus, smaller employers will not be affected (under USERRA, every employer is required to comply regardless of the number of employees).

The amendment to the FMLA (the "Amendment") includes a provision that allows eligible family members of military personnel to take up to 26 weeks of annual leave to care for a wounded member of the armed forces. Additionally, it allows an eligible employee 12 weeks of unpaid leave "for any qualifying exigency" if the spouse, or a son, daughter, or parent of the eligible employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces.

The Amendment Provides for Up To Twenty-Six Weeks of Annual Leave To Care for Injured Servicemembers

The Amendment more than doubles the amount of FMLA leave an eligible employee could have previously taken to care for an injured servicemember. H.R. 4986 amends the FMLA to require that employers provide up to twenty-six (26) weeks of unpaid annual leave during a single 12-month period for an eligible employee who is the spouse, son, daughter, parent, or next of kin (defined as the nearest blood relative) of a "covered servicemember" to care for the "covered servicemember," which is defined as 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."

It is worth highlighting that the definition of "covered servicemember" does not use the term, "serious health condition," which continues to apply to ordinary FMLA leave, but, rather, creates the term, "serious injury or illness," which is defined as "an injury or illness incurred by the member in line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member's office, grade, rank, or rating." Although at first glance it may appear that the Amendment focuses only on employees who require FMLA leave to care for those wounded in combat, which of course it does, the Amendment has a much broader application and includes any injury or illness incurred in the "line of duty."

The Amendment does not define the term "in line of duty," which is a military term of art and is not restricted to combat-related injuries. Under military regulations, injuries of any kind suffered by servicemembers are generally found to be in the "line of duty" unless the injury suffered is the result of the gross misconduct of the servicemember. Accordingly, injuries that are in the "line of duty" could include car accidents, serious non-combat related illnesses such as cancer, or any other non-combat related injury that renders the servicemember unfit to perform his or her duties. Additionally, the eligible employee may take leave under the Amendment even if the injury is temporary, so long as the injury renders the servicemember unfit for military duty.

The Amendment, however, does not permit employees to take leave to care for a reservist who is injured while performing regular reserve duties, which generally consists of one weekend per month and two weeks of annual training per year. The Amendment only permits employees to care for servicemembers who are injured while on active duty. Of course, if a reservist is injured while performing the servicemember's usual reserve duties, the servicemember or family member would still be entitled to 12 weeks of FMLA leave assuming FMLA eligibility requirements are met.

Under the Amendment, an employee may elect, or an employer may require, the substitution of any of the employee's accrued paid vacation leave, paid time off, personal leave, family leave, or medical or sick leave for any part of the 26-week period provided to care for the injured servicemember. However, the employer is not required to provide paid sick leave or paid medical leave in any situation in which the employer would not normally provide such paid leave.

FMLA Leave To Care for Covered Service Members and Other FMLA Leave Run Concurrently

The Amendment provides that, during a 12-month FMLA period, an eligible employee shall be entitled to a combined total of 26 workweeks of leave if the leave includes a period to care for a covered servicemember. Therefore, a qualified employee may take 12 weeks of non-military related FMLA leave and an additional 14 weeks of FMLA leave to care for a covered servicemember, but may not take more than 26 weeks in total during a 12-month period.

Eligible Employees May Take Up To 12 Weeks of Unpaid Leave if Their Spouse or Child Is on Active Duty or Faces Recall To Active Duty

The Amendment also provides that an eligible employee may take up to 12 weeks of unpaid leave if the employee's spouse or child is on active duty in the military or is a reservist who faces recall to active duty if a "qualifying exigency" exists. The term "qualifying exigency" is not defined in the Amendment, but will be in regulations to be promulgated by the Department of Labor (DOL). It is difficult to predict how the DOL will define the term, but Congress's intent was to provide servicemembers, especially those who are ordered overseas into hostile areas, with a family support system in the event that they require time to get their affairs in order prior and subsequent to active duty (i.e., childcare issues, personal financial matters, and the like). Until the regulations are finalized, the DOL's Wage and Hour Division encourages employers to provide this type of leave liberally to qualifying employees. Thus, until the DOL acts , employers would be wise to evaluate each request on a case-by-case basis and act reasonably.

Notice Requirements for Leave Related to Active Duty or Call To Active Duty

The Amendment requires that when such leave is foreseeable, whether because the spouse, son, daughter, or parent of the employee is on active duty, or because of a notification of an impending call or order to active duty in support of a contingency operation, the employee shall provide such notice to the employer as is reasonable and practicable.

An employer may require that an employee's request for leave related to active duty or a call to active duty be supported by a certification, the contents of which, and timing for its delivery to the employer, will be determined by the DOL when it promulgates interpretive regulations. Pending such regulations, the DOL's Wage and Hour Division will require employers to act in good faith in providing leave under the new legislation.

Relationship To State Family Military Leave Policies

Employers should be aware that time off under this new legislation may be in addition to family leave available under state law. Several states have now passed legislation providing their residents with unpaid family military leave. These states include California, Illinois, Indiana, Maine, Minnesota, Nebraska, and New York. (See Littler's October 2007 ASAP, California's New Leave Law for the Spouses of Military Members.) Other states, including Hawaii and Wisconsin, have family military leave legislation currently pending before their respective state legislatures. Employers also should be aware of applicable state statutes and modify their leave policies as appropriate. The family military leave laws do not purport to affect an employee's right to any other legally-mandated leave or employee benefit, including the additional leave benefits now available to employees under the Amendment.

What Should Employers Do Now



Employers should immediately amend their FMLA policies and practices to reflect these significant changes in the qualifying reasons and duration of protected leave. In addition, as we await DOL regulations, employers must proceed with caution in addressing an employee's request for military-related leave. Employers with questions about employee leave rights should consider contacting experienced employment counsel.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.