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For the first time since it became law in 1993, the FMLA has been amended. President Bush signed H.R. 4986 on Jan. 28, granting FMLA-protected leave to family members of injured military personnel and to families of military reservists called to active duty.

The FMLA amendments—part of the massive National Defense Authorization Act that funds the Pentagon—expand employees’ FMLA rights in two key areas:

1. Families of injured military personnel. Employers must offer up to 26 weeks of unpaid FMLA leave in a 12-month period to employees caring for family members wounded in the course of military duty. The law allows intermittent FMLA leave in this case, but employees have just 12 months to take the leave. Regular FMLA leave counts toward the 12-month allotment.
2. Families of reservist call-ups. Employers must grant up to 12 weeks of unpaid FMLA leave to employees who have an immediate family member called to active duty from the military reserves or the National Guard and who experience a “qualifying exigency.” Service members need not be deployed overseas for employees to be eligible for leave. The amendment applies to qualifying situations “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) in the Armed Forces….”

The law allows substitution of paid leave for unpaid FMLA leave, which means employers can track both concurrently. Employers may also request certification that an employee needs to take FMLA leave under the new amendments. The law requires employees to provide “reasonable and practicable” notice when they plan to take leave.

Click here for a full copy of the law containing the new FMLA amendments, which begin on page 126 of the 602-page document.

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.

New poster: The Labor Department has prepared a supplemental FMLA poster that it says satisfies the laws notice requirements. While you're not yet required to post this new poster now, it's wise to do so anyway alongside your usual FMLA poster. Download a free copy here.

Getting to final rules

When Congress passed the National Defense Authorization Act in January, it left it up to the Labor Department to write the rules for implementing military family leave. Specifically, the department must define the “qualifying exigencies” that could trigger FMLA leave requests from employees whose family members have been called up for active duty.

On Feb. 11, the Labor Department issued a series of proposed changes to the FMLA rules covering not only the new military family leave provisions, but many other aspects of the law.

A preliminary reading of the proposed rules suggests that the Labor Department will give great weight to what Congress intended when it passed the military family leave amendments. Sponsors in the House and Senate cited a long list of reasons why a family member might need leave when a loved one is called to active duty, including:

• Making alternative child care arrangements
• Meeting with a financial advisor to recalibrate the family budget or investment plan
• Meeting with a lawyer to redraft a will
• Attending counseling sessions
• Traveling to military send-offs or welcome-home ceremonies
• Dealing with military paperwork
• Attending to funeral and estate matters should the service member die while on active duty.

The Labor Department’s “initial view is that leave for qualifying exigencies should be limited to non-medical” matters, the proposal states, as the FMLA would already apply in medical cases.

Other open questions involve when an employee could begin taking FMLA leave and the kind of certification required to prove eligibility.

The rulemaking process

The Labor Department is inviting the public—including employers—to weigh in on the impact of its proposed new FMLA rules.

A comment period runs until April 10, 2008. Final regulations are expected to be published before President Bush leaves office in January 2009. Read more about the proposal at the Labor Department's FMLA proposal page.