On January 28, 2008, President Bush signed into law the Family Leave in Connection with Injured Members of the Armed Forces Act (the “Act.”)  Among other things, the Act amends the FMLA to permit 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.”  The provisions in the Act providing this leave are effective as of the date of the President’s signing.  Most significantly, the Act creates two new categories of FMLA leave that employers need to be aware of: 1) active duty family leave; and 2) injured service member leave.

Active Duty Family Leave.  Under the FMLA, Section 102 defines the events that qualify an eligible employee to obtain 12 weeks of leave during any 12-month period, such as the birth or adoption of a child, or to care for an employee or family member’s serious health condition.  Under the Act, a new event is added:  “Because of any qualifying exigency (as the Secretary shall, by regulation, determine) 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.”

What exactly is a “qualifying exigency?”  The Act does not define this term, but instead directs the U.S. Department of Labor (“DOL”) to do so.  It is anticipated that a “qualifying exigency” will include situations in which the employee is needed to fulfill family and child-care responsibilities for covered service members who have been called to active duty.  The Act also directs the DOL to establish standards regarding this new type of leave, including the type of certification employers may request to verify that the family member is on active duty.  As of the date of this memorandum, the DOL has not yet issued final regulations defining what a “qualifying exigency” is.  Until the DOL provides clarification, employers are urged to interpret this phrase broadly and to act in good faith in reviewing requests for leave relating to active duty military service. 

Injured Service Member Leave.  Unlike “Active Duty Family Leave,” which does not provide more leave than traditional FMLA leave, Injured Service Member Leave affords employees who have a family member injured in the line of duty with additional rights not previously afforded by the FMLA.  Specifically, qualifying employees are entitled to a combined total of 26 weeks of job-protected leave (including FMLA leave) within a 12-month period rather than 12 weeks.  In so doing, it amends Section 102 of the FMLA as follows: “[A]n eligible employee who is the spouse, son, daughter, parent or next of kin of a servicemember shall be entitled to a total of 26 workweeks of leave during a 12-month period to care for the servicemember.”  

In addition to expanding the amount of unpaid leave available from 12 weeks to 26 weeks, the Act also expands the definition of what entitles an employee to take this sort of leave.  Typically, under the FMLA, the criteria used to determine whether an employee is entitled to leave is whether such employee has a “serious health condition.”  Under the Act, this standard is relaxed somewhat with regard to members of the Armed Forces, National Guard, or Reserves to include “an injury or illness incurred by the member in the line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member’s office, grade, rank or rating.”  Consequently, this definition may cover a much broader range of health concerns that those qualifying as a “serious health condition.”  In sum, eligible employees may take injured service member leave to care for a family member who:  1) is a member of the Armed Forces, National Guard or Reserves; 2) suffers from an injury or illness incurred on active duty in the armed forces that may render him or her medically unfit to perform the duties of his or her office, grade, rank or rating; and 3) is undergoing medical treatment, recuperation, or therapy, is in outpatient status, or is on the temporary disability retired list as a result of the serious injury or illness.  Just as with Active Duty Family Leave, the DOL has been charged with coming up with comprehensive guidance for employers regarding their rights and responsibilities under the new legislation.  Until such guidance is published, the DOL urges again that employers act in good faith in providing leave under the Act. 

On February 11, 2008, the DOL published a proposal to revise regulations interpreting the FMLA in an attempt to clarify some of its existing provisions.  Comments regarding the proposals must be received by April 11, 2008 and the DOL expects to issue final regulations before the end of the Bush administration.  If these changes serve their intended purpose, they should clarify some of the trickier aspects that businesses have struggled with since the FMLA became law in 1993.

Serious Heath Condition.  Under the proposed changes, the DOL would modify the definition of “continuing treatment” of a serious health condition.  Currently, an employee can meet this requirement if the employee is incapacitated for more than three consecutive days and obtains two or more treatments from a healthcare provider without any time limit for those treatments.  The new regulations propose that the two treatment visits must occur within a thirty day calendar period.  In addition, where the serious health condition arises from a chronic health condition, the new regulations clarify that an employee must see a healthcare provider at least two times per year for that chronic condition.

Intermittent Leave.  Intermittent leave has been one of the most consistently challenging aspects about FMLA.  Although the new regulations do not change the minimum increment of intermittent leave that an employee may take, they do propose that employees must comply with the employer’s call-in procedures before taking unscheduled, intermittent leave except under emergency circumstances.  This differs from the FMLA’s current requirement, which allows employees to take intermittent leave and then designate it as FMLA leave within two days of the absence.  With the new proposal, employees will only be allowed to do this under emergency circumstances.

Medical Certification.  Another issue that the new regulations hope to address is obtaining medical certification from healthcare providers.  Under the current FMLA, only a health care provider representing the employer may communicate with an employee’s health care provider.  Under the new regulations, employers would be able to speak directly with employees’ health care providers so long as there is compliance with HIPAA and the employer has a signed authorization from the employee on file.  Recertification of the employee’s condition may also be requested every six months and the recertification requirements are more rigorous in the proposed regulations.

Employer Notification of FMLA Rights.  Under the proposed regulations, employers will be obligated to provide annual notice of FMLA rights and responsibilities to all employees.  One positive change for the employers is that the regulations propose that they be allowed five days rather than two days to provide an employee with notice of his or her eligibility for FMLA leave and to provide FMLA leave designation notice.

Now is the time to reevaluate your FMLA Policy to make sure that it is in compliance.  If you need assistance, please feel free to contact me directly at (404) 885-6142 or mnoble@deflaw.com.