FMLA Amended To Include Family Military Leave
*Patrick J. Hoban

On Monday, January 28, 2008, President Bush signed into law the National Defense Authorization Act for 2008 (the “Act”). The Act amended the Family Medical Leave Act (“FMLA”) to include leave for the immediate families of servicemembers called to active duty in the United States armed forces.

The Act expands the circumstances under which a covered employee may take up to 12 workweeks of unpaid leave in a 12-month period under the FMLA. An employee is now entitled to take FMLA leave for a “qualifying exigency” because a spouse, son, daughter, or parent is on or has been called to active military service (without requiring a qualifying medical event). Though the Act is effective immediately, the term “qualifying exigency” will be defined at a later time by regulations currently being drafted by the Department of Labor.

Additionally, the Act expands the FMLA to allow for up to 26 workweeks of leave to a covered employee to care for a family member injured as a result of military service. However, family members are limited to an aggregate of 26 workweeks leave in any 12-month period. Importantly, the Act extends the definition of “covered employee” to include those qualifying as a servicemember’s “next of kin” (defined as the nearest blood relative). During such leave, covered employees are also entitled to other FMLA benefits (including continued healthcare coverage and job restoration).

The FMLA runs concurrently with similar state Family Military Leave laws. Currently, Illinois, Indiana, Maine, Minnesota, Nebraska and New York have enacted some form of Family Military Leave law. While the entitlements for such leave differ from state to state, these laws generally provide leave benefits to the families of servicemembers prior to, during and immediately following the servicemember's deployment. It is important for employers in these states to know, and comply, with the applicable state requirements as well as the provisions of the recently amended FMLA.

*Patrick J. Hoban practices in all areas of labor and employment law, including military leave. Pat represents private and public sector employers. Prior to becoming an attorney, Pat served as an officer in the United States Navy and was a Navy reservist while employed as a municipal firefighter. For more information on military leave or any labor or employment issue, contact Pat at 216.696.4441 or pjh@zrlaw.com.

This newsletter is not intended as a substitute for professional legal advice and its receipt does not constitute an attorney-client relationship. If you have any questions concerning any of these articles or any other employment law issues, please contact Stephen S. Zashin at (216) 696-4441.
© Copyright 2008 – All Rights Reserved Zashin & Rich Co., L.P.A.