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Congress Expands FMLA to Provide Leave for Family of Service Members

Labor and Employment Update

December 27, 2007

In the first expansion of the Family and Medical Leave Act (FMLA) since its enactment in 1993, Congress has passed a bill amending the law to provide leave for family members of military personnel under certain circumstances. President Bush is expected to sign the bill, which is part of an overall spending package. 

The new law amends the FMLA in two significant ways. First, it creates a new category of leave by granting an eligible
employee up to 12 weeks of unpaid leave when the spouse, son, daughter or parent of the employee is on active duty (or has been notified of an impending call to active duty) in the Armed Forces in support of a "contingency operation" and there is a "qualifying exigency." The new law directs the Secretary of Labor to define “qualifying exigency” by regulation.

Comments by bill sponsors suggest a "qualifying exigency" could include, among other circumstances, when the relative wants time off to see an activated family member off to duty or to meet a service member returning from duty.  Also bill sponsors envision employees taking this leave to assist the service member with economic or family concerns related to the member's active duty or impending activation.

A "contingency operation" generally includes an operation that relates to combat operations, a national emergency or an operation that is designated by the Secretary of Defense as a contingency operation.  Two current contingency operations which have been designated by the Secretary of Defense are Operation Iraqi Freedom and Operation Enduring Freedom.

The second new type of leave created by law allows an eligible employee who is the spouse, son, daughter, parent, or next of kin of a military service member who has suffered a combat injury or illness to take up to a total of 26 workweeks of unpaid leave during a single 12-month period to care for the service member.  The law defines “next of kin” as “the nearest blood relative” of the covered service member.  Notably, the leave may be taken intermittently or on a reduced leave schedule.

The text of the new law is available here.

Bottom Line

According to the staff of Senator Christopher Dodd of Connecticut, the chief Senate sponsor of the legislation, both Congress and the Department of Labor understand that it will take time for appropriate regulations to be issued explaining the law and for employers to modify their policies and practices to comply with the law.  However, Senator Dodd's staff also explains the legislation will be effective immediately.

As a result, until regulations are issued, employers should err on the side of allowing leave that even arguably qualifies under this new law.