Friday, December 21 2007
Labor and Employment Update: Amendment to the FMLA
By Ronald J. Stolkin
On December 14, 2007, Congress passed the 2008 National Defense Authorization Act, which expanded the Family and Medical Leave Act. President Bush will likely sign the legislation soon, possibly before year-end.
The new law creates two new forms of FMLA leave. First, an eligible employee may take up to 12 weeks of FMLA leave because of a "qualifying exigency" arising out of the fact that the employee is on or has been called to active duty in the Armed Forces. The DOL will determine what constitutes a "qualifying exigency."
Second, an eligible employee who is the primary care giver of a servicemember with a combat-related "serious injury or illness" may also take up to 26 weeks of FMLA leave (more than double the current limit) in a single 12-month leave year to care for the injured servicemember. The restriction to a single leave year limits this type of leave to a one-time use. The new law defines a "serious illness or injury" as an injury or illness incurred in the line of duty that may render the member medically unfit to perform his or her duties. This broadens how a "serious health condition" is currently defined.
The legislation also creates a new category of eligible employee entitled to FMLA leave to care for an injured servicemember. In addition to spouse, son, daughter, or parent, the legislation permits someone who is the "next of kin" to take FMLA leave for this purpose. Next of kin is defined as the nearest blood relative to the service member.
The legislation caps FMLA leave in any one year to a total of 26 weeks. Employers are permitted to require certification to verify the call to active duty and/or the need for FMLA leave due to care for an injured servicemember.
Ron Stolkin counsels management on personnel practices, employee discipline and labor relations. He defends employers in litigation alleging employment discrimination, breach of contract, wrongful discharge and other employment related torts. He has represented clients in connection with a broad range of employment related issues before government agencies such as the EEOC, the Department of Labor, the Arizona Civil Rights Division, and the Department of Education, and has counseled clients on a wide range of employment issues including employment handbooks and personnel policies, employment-at-will issues, wage/hour issues, drug and alcohol policies, sexual issues, employee disability issues, and leave of absence issues.
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