EMPLOYERS:
REVISIT YOUR FMLA POLICIES
A RECENT AMENDMENT REQUIRES 26 WEEKS OF UNPAID
MILITARY FAMILY MEDICAL LEAVE

Mary Elizabeth Davis 

On January 28, 2008, President Bush signed into law the National Defense Authorization Act for FY 2008 (NDAA). Among other things, the NDAA amends the FMLA to permit a "spouse, son, daughter, parent, or next of kin" to take up to 26 weeks 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" (Military Family Medical Leave).

The provisions in the NDAA providing this leave are effective as of January 28, 2008. The Department of Labor (DOL) has not yet prepared guidance regarding rights and responsibilities under this new legislation. Until such guidance is prepared, the Wage and Hour Department (WHD) will require employers to act in good faith in providing leave under the new legislation. Because the NDAA amends the FMLA, FMLA-type procedures should be used as may be appropriate (for example, procedures regarding substitution of paid leave and notice).

The NDAA also permits an employee to take FMLA leave for "any qualifying exigency ... arising out of the fact that 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." The phrase "any qualifying exigency" is to be defined by the Secretary of Labor. By its express terms, this provision of the NDAA is not effective until the Secretary of Labor issues final regulations defining "any qualifying exigency." It is expected that this amendment will allow the immediate family of military personnel to use FMLA time for issues directly arising from deployment and extended deployments. For example, the wife of a recently deployed service member could use FMLA time to arrange for childcare or the husband of a service member could use FMLA time to attend pre-deployment briefings, family support sessions to see his wife off or welcome her home.  The DOL is in the process of preparing such regulations. In the interim, the DOL is encouraging employers to provide this type of unpaid leave to qualifying employees.

HOW SHOULD EMPLOYERS IMPLEMENT THESE CHANGES?

1. Review Current FMLA Policies. Employers should review all of their FMLA policies, handbooks, notices, forms and other related documents to determine what revisions are necessary to incorporate the newly enacted Military Family Medical Leave provisions. Until final regulations are issued regarding the FMLA amendments, employers are expected to comply with the NDAA in good faith and may look to their existing FMLA policies for guidance as to how the Military Family Medical Leave should be administered.

2. Review Plan Documents and Summary Plan Descriptions. Employers should work with their insurance advisors and/or counsel to review their health and welfare plan documents, summary plan descriptions and other related documents to ensure that, where necessary, the documents are amended to incorporate the changes required by the Military Family Medical Leave provisions. Because Military Family Medical Leave lasts for a longer period than other FMLA leaves (26, not 12 weeks), employers may need to amend their plan documents, insurance policies and other related documents to provide for such benefits during the leave.

3. Review Insurance Policies with Respect to Qualifying Exigency Leave. Although Qualifying Exigency Leave is not effective until the DOL issues final regulations, the DOL encourages employers to comply with the Qualifying Exigency Leave provisions immediately. Employers who elect to provide Qualifying Exigency Leave before the issuance of final regulations should review coverage issues with their insurance providers as some insurance policies may only cover leave required under the FMLA.

4. Be Prepared for Additional Revisions to the FMLA. The WHD of the DOL has issued proposed regulations that would revise certain existing rules regarding the FMLA. The proposed rules appeared in the February 11, 2008 Federal Register. Some revisions that the DOL proposes deal with the following issues:

• allowing additional time for employers to provide employees with a FMLA eligibility notice (from 2 to 5 business days after a request or knowledge of an FMLA qualifying reason for leave);
• permitting retroactive designation of FMLA leave in certain circumstances;
• requiring FMLA notices to be issued annually regardless of a specific employee request for leave if the notice is not contained in a handbook;
• clarifying the definition of the 12 month qualifying period of service to state that the 12 months need not be consecutive but that employment prior to a continuous break in service of 5 years or more need not be counted;
• clarifying the definitions of serious health condition and continuing treatment;
• permitting settlement of past claims without the requirement of DOL or court approval; and
• permitting employers to directly contact employee's doctors for the purpose of authenticating and clarifying the FMLA medical certification.

Comments on the proposed regulations are due on or before April 11, 2008. As part of the reviews recommended in 1 and 2 above, employers should take this opportunity to confirm that their FMLA policies and related documents correctly reflect the treatment of an employee's benefits during FMLA as outlined in the proposed regulations.

In its current form, the Family and Medical Leave Act of 1993 (FMLA) entitles eligible employees of covered employers to take up to a total of 12 weeks of unpaid leave during a 12 month period for:

• the birth of a child;
• for the placement of a child for adoption or foster care;
• to care for a spouse, parent, son or daughter with a serious health condition; or
• when the employee is unable to work due to the employee's serious health condition.

The 12 weeks of leave may be taken in a block, or under certain circumstances, intermittently or on a reduced leave schedule. Employers covered by the law must maintain for the employee any preexisting group health coverage during the leave period under the same conditions coverage would have been provided if the employee had not taken leave, and, once the leave period has concluded, reinstate the employee to the same or an equivalent job with equivalent employment benefits, pay and other terms and conditions of employment.  For more information regarding compliance with the FMLA or assistance in revising or drafting employer policies, please contact Betsy Davis.

Reprinted with permission of Virginia Lawyers Media.