Congress Votes to Expand Family and Medical Leave Act

Signed into law in 1993 by President Bill Clinton, the FMLA requires employers of 50 or more employees to provide up to 12 weeks of unpaid leave during any 12-month period for the care of seriously ill family members, the birth or adoption of a child, or an employee's own serious health condition. Since the FMLA became law, more than 50 million Americans have benefited from its protections — and the rate is increasing. Currently, the Department of Labor estimates that seven million workers take FMLA leave each year.

Both houses of Congress recently cleared the National Defense Authorization Act (NDAA), and, on January 28, 2008, President Bush signed the bill into law. The NDAA includes Section 585 which expands the FMLA in the following important ways:

Active Duty Leave: A new benefit provides 12 weeks of FMLA leave due to a spouse, son, daughter, or parent being on active duty, or being notified of an impending call or order to active duty in the Armed Forces in support of a contingency operation. Active duty leave may be taken for any "qualifying exigency" (a term to be defined by the Department of Labor or the Office of Personnel Management) related to the military call-up. The FMLA leave may commence as soon as the individual receives a call-up notice.

Caregiver Leave: Another new benefit provides 26 weeks of FMLA leave during a single 12-month period for a spouse, son, daughter, parent, or next of kin (nearest blood relative) caring for a recovering service member. The new law defines a recovering service member as a member of the Armed Forces who suffered an injury or illness while on active duty that may render the person unable to perform the duties of the service member's office, grade, rank, or rating.

In addition to creating these two new categories of leave, the new law expands the pool of eligible employees taking FMLA leave by including next of kin to care for an injured service member. Additionally, leave under both circumstances may be taken on an incremental basis, or in the smallest increment that the employer's payroll system can track.

Most recently, the DOL sent proposed regulations to the White House Office of Budget and Management for review — a prelude to actually issuing the proposed rules. Other areas targeted for revisions include medical certification for leave under the FMLA, and unscheduled intermittent leave for those claiming chronic health conditions. Under the DOL's proposed regulations, workers generally would have to call in to request a leave before taking it — with exceptions for extenuating circumstances, such as a case where a worker is too ill to call. Currently, employees can take off for two days before requesting a leave. The DOL hopes to have the new FMLA regulations issued before the Bush administration leaves office in January 2009.

For more information on the FMLA, please contact Evan Rosen (404.869.5325 or [email protected]).