Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

With the signing of the National Defense Authorization Act for FY 2008 (NDAA) earlier this week, the new amendments to the FMLA for care of military members are now effective immediately.  For a full text of the FMLA, with the new amendments, the Department of Labor has posted it here.

For a refresher to my prior posts, the Act now permits a "spouse, son, daughter, parent, or next of kin" to take up to 26 workweeks of leave to care for a "member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness."

Its important to note that the caregiver protection provides more than double what is provided when an employee takes "traditional" FMLA leave.  Employees are entitled to only one 26-week leave period to care for a wounded servicemember during the employee’s employment. The leave may be taken on an intermittent or reduced-schedule basis, but all 26 weeks must be used during a single 12-month period. 

The Act also provides up to 12 weeks of leave for employees who have a family member called up to or engaged in active military duty.  In detail, the Act provides up to 12 weeks of FMLA leave for an employee with a spouse, son, daughter or parent who: (1) is on active duty in the Armed Forces in support of a contingency operation; or (2) has been notified of an impending call or order to active duty in the Armed Forces in support of a contingency operation. A "contingency operation" is an action or operation against an opposing military force.

An employee may take active duty leave for "any qualifying exigency" related to the family member’s call-up, and the leave may commence as soon as an individual receives notification of being called to active duty. The term "any qualifying exigency" was not defined, and will likely be clarified in future regulations published by the Department of Labor ("DOL").

Recall too that the normal definitions of the FMLA still apply. Thus, the employer must employ at least 50 part-time or full-time employees for each working day during 20 or more workweeks of the current or previous calendar year to be subject to the statute. In order to be eligible for FMLA leave for example, employees must still have at least 12 months of service with the employer  and must have worked at least 1,250 hours during the 12 months preceding the start date of the leave

Because these changes expand the ways that an employee may be entitled to protected leave, employers should familiarize themselves with the law and also review their obligations under USERRA as well.  Employers can consider updating their policies and procedures and also ensuring that their postings (such as a USERRA DOL poster) are current as well. Notifying human resources of this new law will also be critical to ensuring proper compliance with this law. 

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As I predicted last month, Congress will quickly take up the bill regarding defense spending (which also includes a provision for protected leave for military families) this week, when it opens its 2008 session. 

The New York Times is reporting this morning that a resolution of the issues which resulted in the President's pocket veto of the bill are being resolved, and passage is expected shortly.

Officials said the most likely approach would be to vote to send the Pentagon measure back to the Armed Services Committee, where the disputed provision could be quickly corrected, allowing the bill to be brought back for a final vote by the end of the week.

“We hope to fix it,” an aide said.

For background on the expanded FMLA leave for military families portion of the bill, see my earlier post on the subject. 

(Hat Tip: Ohio Employer's Law Blog)

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On Friday, Congress passed the first significant amendments to the Family and Medical Leave Act (FMLA) in over a decade.  The Bill still needs to be signed by President Bush in order for it to become effective. 

The new bill, which has yet to be signed by President Bush, creates an additional category for the traditional 12 week leave. Specifically, an employee may take 12 weeks leave, where the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation and there is a "qualifying exigency" which is to be defined by the Secretary of Labor by regulation.

In addition, and in an unique approach to leave issues, Congress has also created a "Servicemember Family Leave" where an eligible employee who is the spouse, son, daughter, parent, or next of kin of an injured servicemember needs to take care of them. The employee in this situation is entitled to 26 weeks leave.  This appears to be a one-time only leave. 

For Connecticut employers, this new bill will only add to the confusion over which leave (state or federal) applies. For the time being (and when signed by President Bush), this new leave will only apply to those employers covered under the Federal FMLA laws, not the state. 

Note that this expanded leave section is part of an overall military spending package.  There remains the possibility of a veto on it so employers should keep checking back for final approval and an effective date.

The legislation had been introduced by Senator Chris Dodd (D-Conn.) and he expressed his pleasure with its passage in a statement on Friday. 

"By passing this important legislation we will protect family members' rights to keep their jobs when they are providing important care and we will ensure that our injured troops receive the comfort and attention that they need," he said. 

According to the roll call, Dodd was absent from the final vote on the conference report on Friday. 

(Hat Tip: Jottings by an Employer's Lawyer)

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