On January 28, 2008, President George W. Bush signed legislation that includes provisions that amend the Family and Medical Leave Act (FMLA) to allow eligible employees to use leave in certain circumstances when their spouse, child, or parent is called for active duty in the military. The provisions were included in the National Defense Authorization Act for Fiscal Year 2008 (H.R. 4986) (NDAA). This is the first amendment to the FMLA since it was enacted in 1993.
Previously, the FMLA provided eligible employees with 12 workweeks of leave during any 12-month period. Now the act will provide more leave to employees whose family members are injured while serving in the military, requiring employers to offer up to 26 weeks of unpaid leave to employees who are providing care to U.S. soldiers wounded in the line of duty. The FMLA also requires employers to provide 12 weeks of FMLA leave to the immediate family members of military personnel and reservists who have a "qualifying exigency." Because the term "qualifying exigency" is broad and undefined in the statute, it will likely cause compliance issues for employers.
On February 11, 2007, the U.S. Department of Labor (DOL) issued a notice of new proposed regulations in the Federal Register. The proposed regulations indicate that FMLA leave to care for covered service members became effective on January 28, 2008. However, the provisions of the FMLA leave for a qualified exigency are not effective until the Secretary of Labor issues regulations defining "qualifying exigencies."
The DOL is currently seeking public comment on the regulations. Comments must be received on or before April 11, 2008. The DOL anticipates issuing final regulations after consideration of the comments, and accordingly, strongly encourages the submission of any comments or concerns. Some of the proposed revisions are discussed below.
The proposed regulations indicate that it is the DOL's initial view that there must be some nexus between the eligible employee's need for leave and the service member's active duty status. The DOL solicits comments on the degree of nexus required to demonstrate that the exigency arises out of the service member's active duty status. Also, the DOL's initial view is that leave for qualifying exigencies should be limited to non-medical related exigencies. The DOL seeks comment on these issues and on whether it would be appropriate to develop a list of pre-deployment, deployment, and post-deployment qualifying exigencies. Additionally, the DOL seeks comment on whether this should be a per se list of qualified exigencies.
The military leave provisions will provide a new notice requirement for leave taken due to "qualifying exigencies" that are foreseeable. Accordingly, the notice requirements when an employee seeks NDAA leave may necessitate changes to the Employee Obligations section of Exhibit C (proposed FMLA Regulation §825.301(b)). The DOL recently posted an FMLA Poster Insert for Military Family Leave Amendments, but the Web site indicates that the posting is optional:
http://www.dol.gov/esa/regs/compliance/posters/fmla.htm
The proposed regulations also include certain revisions to the notice requirements of the FLSA. The DOL proposes that the new regulations (proposed §825.300(a)) allow for a "posting" alternative: electronic posting of the notice as long as it otherwise meets the posting requirements and seeks comment on whether this posting alternative is workable and will ensure that employees/applicants obtain the required FMLA information.
Also, the DOL proposes a new paragraph separating out language that requires covered employers to post the general notice to individual employees even if no employees are eligible for FMLA. Allegedly to "streamline" the notice requirement at §825.301(a)(1) and the posting requirement, the DOL proposes that one document containing identical information be both posted and distributed. And the division proposes that if the proposed notice is not included in an employer's employee handbook, it must be distributed annually. The DOL seeks comment on all aspects of these notice provisions.
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