Employers with 50 or more employees should be aware of two new Amendments which expand the Family and Medical Leave Act ("FMLA") to provide job-protected leave to employees caring for wounded soldiers and to immediate family members of reservists called to active duty. The FMLA was initially created to help employees balance the demands of the workplace with the needs of their families by allowing eligible employees in certain situations to take up to 12 weeks of unpaid job protected leave. The new Amendments are consistent with this original purpose but are directly geared toward providing aid for the families of service members.

Eligibility

Under the new Amendments, FMLA eligibility requirements for employers and employees remain unchanged. The FMLA currently provides leave for all employees working in a facility which employs 50 or more people (or within 75 miles of that location) that have been employed for at least 12 months and have worked 1,250 hours. Therefore, in order for an employee to be eligible for leave under these new Amendments, they must meet the criteria established under the 1993 enactment.

The Amendments

The First Amendment to the FMLA allows an employee 12 weeks of job-protected leave for a "qualifying exigency" arising out of the employee's spouse, son, daughter, or parent being on active duty or having been notified of an impending call to active duty. The term "qualifying exigency" has not yet been defined by the Department of Labor ("DOL"), but more than likely the term anticipates situations where a family member's deployment to active service causes disruption in an employee's life, thus necessitating leave. Though the regulation will not go into effect until the DOL formally defines the term "qualifying exigency," the DOL is encouraging employers to provide this type of leave to employees who may qualify in the interim.

The Second Amendment provides job protected leave to spouses, parents, children, or next of kin caring for recovering military service personnel who develop a serious injury or illness while serving in the armed forces. This Amendment was signed into law on January 28, 2008, and is the first expansion of the FMLA since its enactment in 1993. This Amendment entitles an employee to a maximum of 26 weeks of leave during a single 12-month period. An employee may still take 12 weeks of leave for a reason other than military care leave, however, the total amount that the employee may take, of both military and other FMLA leave, is 26 weeks. A husband and wife who work for the same employer may be limited to taking a total of 26 weeks of leave during a 12-month period for military care leave.

Employer Rights Under the New Amendments

When practical, employees must give their employer reasonable notice when taking leave under the new Amendments. In regard to leave requested under a "qualifying exigency," an employer can require certification of an impending call to active duty from the requesting employee. Likewise, an employer can also request that an employee provide certification from a healthcare provider when requesting military care leave.

Steps Employers Should Take to Comply With the Amendment

Employers who are subject to the requirements of FMLA should incorporate these new changes into the FMLA policy they are required to have in their employee handbook, and notify their employees of these changes in their policy. It is also critically important that the employer's personnel who are responsible for implementing FMLA leave be instructed on these changes and how to properly implement them.

The law firm of Jennings, Strouss & Salmon is available to advise your organization concerning these FMLA changes, and to assist with updating your FMLA policy. Please contact the Chair of Jennings, Strouss & Salmon's Labor and Employment Department, John J. Egbert for more information.