For the first time since it became law in 1993, thehas been amended. President Bush signed H.R. 4986 in January. The law grants FMLA-protected leave to workers who care for injured soldiers and families of reservists called to duty.
The FMLA amendments, part of the massive National Defense Authorization Act that funds the Pentagon, expand employees’in two key areas:
1. Families of injured military personnel. Employers must offer up to 26 weeks of unpaideach 12-month period to employees caring for family members wounded in the course of military duty.
2. Families of reservist call-ups. Employers must grant up to 12 weeks of unpaid leave to immediate family members of reservists and members of the National Guard called to active duty in the U.S. armed forces. Service members need not be deployed overseas to trigger eligibility for the 12 weeks of leave. The amendment applies to “qualifying exigencies” “arising out of the fact that the spouse, son, daughter or parent of an employee is on active duty (or has been notified of an impending call or order to active duty).”
Loose ends remain to be tied up. The law does not define the “qualifying exigencies” that could trigger FMLA leave requests. Congress directed the U.S. Labor Department to issue regulations for determining which situations qualify.
The Labor Department said it will work fast to develop regulations on how employers must respond, but the process will take several weeks.
Advice: Be prepared to offer FMLA leave to military families now. If you have military reservists on staff or employees with family members in the military, contact your attorney ASAP to gauge the effect of the amendments on your organization’s leave policies.
Meanwhile, the Labor Department has proposed—but not publicly released—a set of FMLA regulatory revisions that could affect medical certifications, notification procedures and guidelines on when FMLA leave begins.
Business groups have urged Labor to come up with a tighter definition of “serious medical condition”—the trigger for an employee’s right to take FMLA leave. They argue that the term is too vague and sometimes allows employees to take FMLA leave to deal with relatively trivial illnesses.
However, according to The New York Times, Labor Department officials said they decided against tightening the “serious” definition, saying Congress should enact any such change in the law.
Assistant Labor Secretary for Employment Standards Victoria A. Lipnic said the regs would clarify medical certification procedures, and require doctors to annually recertify that an employee has an FMLA-qualifying condition. Currently, medical certifications can run indefinitely.
The proposed changes are expected to be available for public comment sometime this spring.
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