NEW MANDATORY LEAVE FOR MILITARY FAMILIES
President Bush has signed legislation expanding the Family Medical Leave Act. This is the first time the FMLA has been revised since the law was passed in 1993. The
new law requires employers to offer job protected leave to employees
whose family members are called for military service or injured during
military service. Below is a summary of what you need to know to make sure your company is in compliance under the statute.
Do These New Provisions Apply To My Company? Yes - if your Company is presently covered by the FMLA. The FMLA applies to employers with at least 50 employees. An employee is eligible for covered leave only
if the employee: (1) has been employed for at least 12 months; (2)
has worked at least 1,250 hours in the 12 months immediately preceding
the leave request and (3) works at a worksite where there are at
least 49 other employees within a 75 mile radius.
What Are My Leave Obligations Under The New Law?
The Department of Labor is in the process of preparing
comprehensive regulations to guide employers on their rights and
obligationsunder this new law. We do not expect any definitive
guidance until the Summer. In the meantime, this is what we know.
The legislation creates two new categories of family leave for military families. Under so-called "Servicemember Family Leave," a spouse, child, parent or next of kin (defined as nearest blood relative) of a servicemember can take up to 26 weeks
of job protected family leave in a single twelve month period to
care for a servicemember who suffered an injury or illness during
military service and can no longer perform the duties of his or her
office, rank, or rating. The new statute permits this leave to be
taken in a lump sum, intermittently or on a reduced leave schedule (as
those terms are defined in the FMLA).
Notably, the new law is ambiguous about the scope of this new
right because it leaves many terms such as "single 12-month period"
undefined. The Department of Labor is soliciting public comments
on the scope of this obligation. At this juncture, no one can say
for sure whether the 26 week leave entitlement is a one time
entitlement or has to be honored annually. Another of the
many open questions is whether the leave entitlement is per each
covered service member or a one time right, regardless of the
number of servicemembers related to the employee.
Despite these open questions, this provision is effective immediately. Employers are expected to act in good faith in providing leave under this new provision until DOL issues its regulations.
Under so-called "Family Member Active Duty Leave," employees are permitted to take up to 12
job protected weeks of FMLA leave when a family servicemember (parent,
spouse, child or next of kin) is on active duty or is called to active
duty. The statute says that this leave is available for any "exigency", but this term is not defined. This provision is not effective until the Secretary of Labor issues regulations defining the term "exigency." However, the Department of Labor is encouraging employers to provide this Active Duty Leave to qualifying employees.
How Do These Changes Fit In With California's New Family Leave for Military Spouses? California employers must comply with both laws. Since
the new FMLA provision is significantly broader than its California
counterpart, employers must allow the employee to take whichever leave
is most advantageous. California's
military spouse leave law, which went into effect last October,
provides a leave of absence for certain employees whose spouse is on
leave from deployment during a military conflict. See Compliance Matters, October 30, 2007 for more information on the California statute.
What Must I Do Now? Three
things: (i) amend your FMLA policies to include these new requirements
and train those who administer your FMLA policy; (ii) train all
managers and supervisors about this important new employee benefit so
they don't unwittingly discourage or interfere with employee requests
to use the law; and (iii) communicate these changes to employees and
incorporate this information into your employee handbook or leave
policy. Your contact at BRG&S is available to assist you in getting your company compliant with these new requirements.
For more information, call us today at (818) 508-3700, or visit us on the web, at www.brgslaw.com.
Sincerely,Richard S. RosenbergPartnerBRG&S, LLP | |
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