Military Service and the FMLA
The Family and Medical Leave Act (FMLA) requires that certain employees be granted up to twelve weeks of unpaid job-protected leave per year. The FMLA applies to companies with fifty or more employees. If eligible, employees must be granted up to twelve weeks of unpaid leave each year for any of the following reasons:
- For the birth and care of the new child of an employee;
- For placement with the employee of a child for adoption or foster care;
- To care for an immediate family member (spouse, child, or parent) with a serious health condition; or
- To take medical leave when the employee is unable to work because of a serious health condition.
On January 28, 2008, the National Defense Authorization Act for FY2008 (NDAA) was signed into law by President Bush. Among other things, this act amended the FMLA to require employers to grant unpaid military family leave. As a result, an employee who is eligible for FMLA leave must be granted up to 26 weeks of job-protected leave:
To permit a spouse, daughter, parent, or next-of-kin 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.
These provisions currently apply to FMLA-covered employers. The Department of Labor (DOL) will be implementing regulations, but in the interim has announced that employers are required to act in good faith to provide leave under these provisions.
Additionally, once the Department of Labor adopts implementing regulations defining “qualifying exigency”, an employer must grant up to 26 weeks of job-protected leave:
For any qualifying exigency arising out of the fact that the spouse, 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.
Pending adoption of the regulations, DOL encourages employers to provide this type of leave to qualifying employees.
It is important for employers to be aware of and comply with these requirements. Additionally, applicable policies and forms, including those contained in employee handbooks or manuals, should be amended to reflect these changes.
Finally, we suggest that any employer receiving a request for leave related to military service seek legal advice to determine the new rights and obligations that may apply.
