Family and Medical Leave Period
More Than Doubled When Caring
for Injured Members of the Armed Services
On January 22, 2008 the Family and Medical Leave Act was amended to provide FMLA protections to family members of injured servicemen and those called to duty for contingent operations. The new Act is called the "Servicemember Family and Medical Leave."
The Act extends the period of leave allowed under the FMLA when the need for the leave is to care for an injured member of the armed services. The Act also adds the provision of 12 weeks of leave because of an exigency arising from the parent, child, or spouse being called or ordered to active duty in support of a contingency operation.
The existing FMLA provided employees who work for covered employers up to 12 weeks of leave per 12 month period for the serious health condition of the employee or of the employee's parent, child, or spouse. Twelve weeks of leave is also provided to an employee for the care of a child who has been born, adopted or placed in foster care with the employee; the 12 weeks of leave must be taken within the 12 months following this event. Covered employers are public employers or private employers with 50 or more employees.
Under the new Act, an employer must provide an employee with up to 26-weeks of leave during a 12-month period for the care of a covered service member. A covered servicemember is a member of the Armed Services including the National Guard or Reserves who is undergoing medical treatment, recuperation, or therapy, in outpatient status, or is otherwise on the temporary retired list, for a serious illness or injury. The illness or injury must have occurred in the line of active duty and may render the member medically unfit.
The new Act appears to have a major limitation. The law states that the 26-weeks of leave may only be taken during a single 12-month period. During this single 12-month period, the total of FMLA leave allowed is 26-weeks whether it is taken all for the care of a service member or combined with FLMA leave taken for other purposes. Further, when a husband and wife work for the same employer, the combined leave that may be taken is limited to 26-weeks.
Whenever the need for the leave is foreseeable, the employee should give such notice of the need for the leave as is reasonable and practicable. Other rights afforded such as job restoration rights and the continuation of health care coverage apply when the leave is requested for an injured member of the Armed Services or for a member of the Armed Services called to active duty to support a contingent operation.
Every employer will need to amend its FMLA policy to provide for these new rights. FMLA notices of rights that are posted in the workplace should also be amended to include these new provisions.
For questions about the Servicemember Family and Medical Leave Act or any employment issue, please contact Phyllis Katz (804-783-7287 and PKatz@SandsAnderson.com) or any member of the Employment Law team.
