THE FAMILY AND MEDICAL LEAVE ACT NOW PROTECTS MEMBERS OF THE MILITARY AND THEIR FAMILIES
As you have probably heard, Congress recently passed a law expanding portions to the Family Medical Leave Act (FMLA) for the benefit of members of the military and their families. There are actually two different parts to the amendments – the first impacts family members of soldiers injured in the line of duty, and the second affects families of soldiers who are on active duty (or have been ordered to active duty).
Effective immediately, a spouse, son, daughter, parent or nearest blood relative of a service member is allowed up to 26 weeks of leave in a 12-month period to care for a service member who suffers an injury or illness while on active duty. The injury or illness must be serious enough to render the service member medically unfit to perform the duties of the soldier’s office, grade, rank or rating. The 26 weeks of leave under this section represents the total amount of leave available for an employee – it is not in addition to the standard 12 weeks of leave allowed for other serious health conditions under the FMLA.
The second change to FMLA entitles an employee to family leave if a “qualifying exigency” arises out of the fact that the employee’s spouse, son, daughter or parent is on active duty or has been ordered to active duty. The law does not define “qualifying exigency” and the Department of Labor has taken the position that this portion of the law will not go into effect until that term has been defined. Since it is unclear whether the Department’s approach would be upheld by the courts, cautious employers should carefully consider leave requests that may fall into this category. Employees who take FMLA for this purpose are subject to the same 12-week limit as with the other non-military purposes, so there is no additional leave time allowed for employees taking FMLA due to qualifying exigencies.
Because an incorrect refusal to grant leave to a qualified employee can result in liability, even if that denial is made in good faith, you should always consult with your employment attorney if you have any questions regarding this complicated area of the law.
