Most Arizona employers associate the Family Medical Leave Act (FMLA) with employee time off to care for an ailing parent or spouse or to tend to a newborn baby or newly adopted child.
Since early this year, the list of reasons for granting extended employee leaves has become longer, and in some cases, so has the permitted time off.
As of Jan. 28, when President Bush signed the National Defense Authorization Act of 2008 into law, the FMLA extends coverage to employees who are caring for a spouse, child, parent or “next of kin” injured while on active military duty. It also covers unpaid leave “for any qualifying exigency” arising from a spouse, a child or parent of the eligible employee being on active duty (or being notified of an impending call or order to active duty) in the armed forces.
It is 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.
Companies with 50 or more employees must now grant up to six months of leave in a 12-month period to an eligible employee who is caring for a wounded service member, and 12-weeks leave to an employee helping a relative with a pressing need related to getting his or her affairs in order in preparation for military service.
The two provisions for military families represent the first expansion of the FMLA in the nearly 15 years since it was enacted. The expansion is expected to have significant impact on companies covered by the FMLA as long as overseas deployment of troops — and resulting casualties — continues.
The law is causing confusion in the business world, especially with regard to the definition of an “exigency.” We believe the intent behind this provision is to offer assistance to families who must now prepare for, and deal with, the service member’s deployment. That could include time off for an employee helping to arrange for childcare, attending pre-deployment briefings, handling legal, economic or financial-planning issues, paying bills, or providing emotional support.
Another area of confusion surrounds certification. What information can an employer properly require, for example, regarding the service member’s active duty status and the employee’s “next of kin” status?
The U.S. Department of Labor has promised to issue regulations to clarify the confusion, but they are not expected before this fall. Until then, employers are required to provide leave to employees caring for wounded relatives and are not required but are being encouraged to provide leave for qualifying exigencies.
We advise employers to amend their FMLA policies and practices immediately to reflect these significant changes in the qualifying reasons and duration of protected leave. In addition, as we await final 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 law counsel.
Mark Ogden is the managing shareholder of the Phoenix office of Littler Mendelson, the nation’s largest employment and labor law firm representing management. He can be reached at 602-474-3600 or [email protected]