Amendments to the FMLA

As you know, the federal Family Medical Leave Act (“FMLA”) generally requires employers to provide their employees with up to 12 weeks of unpaid leave in a 12 month period in order to attend to certain family and medical obligations such as: (1) caring for a sick child, spouse, or qualifying relative; (2) attending to the birth or adoption of a child; or (3) personally recuperating from a serious health condition. The FMLA only applies to employers with 50 or more employees and when the employee has worked at least 1,250 hours in the preceding 12 month period.

On January 28, 2008, President Bush signed a bill that amended the FMLA. These amendments provide two changes to current law. First, the amendments add an expansive provision which allows an employee to take 12 weeks of leave (over a 12 month period) in order to attend to any “qualifying exigency” relating to an active duty member of the U.S. military who is the spouse, son, daughter, or parent of the employee. This particular provision, however, will not become effective until the U.S. Secretary of Labor releases its official regulations defining the term “qualifying exigency.” Nonetheless, there is reliable speculation as to what this particular provision will allow. It is anticipated that “qualifying exigency” will be defined to provide leave time for employees to attend to matters relating to the active duty of a military servicemember. This would include time for arranging the financial affairs of the servicemember's family and may even include bonding time for family to spend with a military member who is either about to be deployed or has recently returned from active duty.

The second significant change to the FMLA allows an eligible employee who is the spouse, child, parent, or next of kin of a “covered servicemember” to take 26 weeks of leave over a 12-month period in order to provide care for the “covered servicemember.” The 26 week period includes any period of leave time already used by an employee for another reason. For example, if an employee has already used 6 weeks to care for a sick relative, then the employee would only have 20 weeks left under this particular provision. In order to be considered a “covered servicemember,” the active duty military member must be “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.” There is no indication that the amendments require the servicemember's medical condition be inflicted in the course of military service. This second change went into effect immediately upon the President's signing of the bill.

Until the U.S. Department of Labor provides more comprehensive guidance on these two changes to the FMLA in the form of official final regulations, employers are required to “act in good faith in providing leave under the new legislation.” Final regulations clarifying the amendments have not yet been published. In the meantime, employers should be relatively flexible in providing leave to employees who need time to attend to matters relating to active duty servicemembers who are the spouse, son, daughter, or parent of the employee.

Currently, there is a bill before the California legislature which would amend California's version of the FMLA known as the California Family Rights Act (“CFRA”). This bill would modify the CFRA to provide employees with leave time identical to the FMLA amendments mentioned above. The California legislation, however, would expand on the eligibility for employee leave by allowing grandparents, grandchildren, and siblings of military servicemembers to qualify for leave time. There is currently very little information as to when, or even if, this legislation will become law in California.

What this means for you: