I didn't get anyone who knew if the DOL had defined "exigent circumstances".
But I did get a few people who wanted to know more about the FMLA changes.
So below is the latest info I've found.
George W. Baker, Director
Trumbull County Law Library
Warren, OH 44481
(330) 675-2525
(330) 675-2527 fax
_www.tclla.org_ (http://www.tclla.org)
New York Law Journal
Volume 239
Copyright 2008 ALM Properties, Inc. All rights reserved.
Monday, June 2, 2008
EMPLOYMENT LAW
FMLA Expanded to Accommodate Military Families
Jeffrey S. Klein and Nicholas J. Pappas
On Jan. 28, 2008, President George W. Bush signed into law the National
Defense Authorization Act of Fiscal Year 2008 (NDAA), which expands coverage of the
Family and Medical Leave Act of 1993 (FMLA) to families of military personnel
in two material respects.
• First, the new law extends the FMLA's entitlement of 12 weeks of leave from
work to employees who experience a 'qualifying exigency' relating to a family
member's military service.
• Second, the law creates an entirely new category of FMLA leave called
'service-member family leave,' which entitles eligible employees to 26 weeks of
leave from work in order to provide care for a family member who has been injured
during military service.
Given the large number of employees who have family members who serve, or who
have been injured, in U.S. conflicts overseas, employers need to be aware of
and understand these recent changes to ensure compliance with the FMLA.
FMLA Background
Congress enacted the FMLA in 1993 to balance the demands of the workplace
with the needs of families. Since that time, more than 50 million American
workers have taken leave for family or medical reasons. Prior to the passage of the
NDAA, the FMLA guaranteed 'eligible' employees up to 12 weeks of
job-protected, unpaid leave from their employment in any 12-month period for one or more of
the following reasons: (1) the birth of a child of the employee; (2) the pla
cement of a child with the employee for adoption or foster care; (3) the
employee's spouse, child or parent has a serious health condition; or (4) the
employee has a serious health condition. 29 U.S.C. §2612(1). An 'eligible employee'
is any employee of a covered employer who has been employed by the employer:
(1) for at least 12 months; and (2) for at least 1,250 hours of service during
the 12-month period immediately preceding the commencement of the leave. Id.
at §2611(2)(A).
During FMLA leave, an employer must continue a departing employee's health
coverage under the employer's group health plan at the level and under the
conditions coverage would have been provided were the employee not on leave. 29
U.S.C. §2614(c)(1). Upon completion of the FMLA leave, the employer also must
restore the employee to the same position held prior to the employee's leave or
to an 'equivalent' position. Id. at §2614(a). It is unlawful for an employer to
'interfere with, restrain, or deny the exercise of' these rights, and
violators are subject to liability for back pay, liquidated damages and appropriate
equitable relief. Generally, employers with 50 or more employees must comply
with the FMLA, but the law also excludes from coverage employees at a work site
at which the employer employs fewer than 50 employees if the total number of
employees employed by that employer within 75 miles of that work site is less
than 50. Id. at §2611(2) & (4).
A 'Qualifying Exigency'
As noted above, the FMLA formerly contained four bases for eligible employees
to receive 12 weeks of job-protected leave. As a result of the NDAA, the FMLA
will provide for such leave on the following fifth basis:
(5) Because of any qualifying exigency arising out of the fact that the
spouse, or a son, daughter, or parent of the employee is on active duty (or has
been notified of an impending call or order to active duty) in the Armed Forces
in support of a contingency operation. 29 U.S.C. §2612(a)(1)(E).
Currently, there is no definition for the term 'qualifying exigency.' Rather,
Congress has instructed the secretary of Labor to implement regulations to
define the term. Depending upon the scope of the definition, employees may be
able to use FMLA leave for myriad reasons relating to the active duty of a
family member. For instance, U.S. Representative Jason Altmire, D-Pa., made the
following statement concerning the qualifying exigency leave provision on the
House floor:
This amendment allows the immediate family of military personnel to use
[FMLA] time for issues directly arising from deployment and extended deployments.
The wife of a recently deployed military service member could use the [FMLA] to
arrange for childcare. The husband of a service member could use the [FMLA]
to attend predeployment briefings and family support sessions. The parents of a
deployed service member could take [FMLA] time to see their raised child off
or welcome them back home.
Notably, the amendment requiring employers to provide leave due to a
'qualifying exigency' is not binding upon employers until the Department of Labor
promulgates regulations defining that term.
Just as employees are required to provide advance notice to employers when
requesting traditional FMLA leave when the necessity for such leave is
foreseeable, so too employees will be required to provide 'reasonable and practicable'
notice to the employer in advance of taking leave due to a qualifying
exigency. 29 U.S.C. §2612(e)(3). An eligible employee may elect, or an employer may
require the employee, to substitute any accrued paid vacation leave, personal
leave, or family leave of the employee for any part of the 12-week period of
such leave. Id. at §2612(d)(2)(A).
26 Weeks of Service-Member Family Leave
The NDAA expanded the coverage of the FMLA by creating an entirely new type
of extended leave called 'service-member family leave.' This leave, unlike the
'qualifying exigency' leave described above, became binding upon employers
with the passage of the NDAA on Jan. 28, 2008.
Service-member family leave entitles an eligible employee, who is the spouse,
son, daughter, or parent of a covered service member to a 'total of 26 work
weeks of leave during a 12-month period to care for the service member.' See 29
U.S.C. §2612(a)(3). In addition, unlike all other forms of FMLA leave,
service-member family leave is also available to the 'next of kin' of a covered
service member, i.e., the nearest blood relative of that service member. Id. at
§2611(18). A 'covered service member' is generally any member of the Armed
Forces, including a member of the National Guard or Reserves, who is undergoing
treatment or therapy for a serious injury or illness incurred while on active
duty. Id. at §2611(16) & (19).
Perhaps the most generous feature of the service-member family leave is its
length of 26 work weeks. Such a lengthy period of leave has the potential to
impose significant new burdens on certain employers.
There are two limitations on service-member family leave that may ease this
potential burden. First, service-member family leave is available during a
single 12-month period only. 29 U.S.C. §2612(a)(3). Thus, if medical treatment of
a covered service-member lasts more than 12 months, the employer need not
provide an additional 26 weeks of service-member family leave in the next 12-month
period. Second, employees are entitled to a 'combined total of 26 work weeks'
of FMLA leave, and may not exceed that amount during the 12-month period by
combining service-member family leave with other forms of FMLA leave. Id. at
§2612(a)(4).
Eligible employees generally must provide at least 30 days' notice of their
intention to take service-member family leave whenever the necessity for such
leave is foreseeable based on planned medical treatment. Eligible employees may
elect, or an employer may require the employee, to substitute accrued paid
leave for any part of the 26-week period of service-member family leave. 29
U.S.C. §2612(d)(2)(B).
Impact on Employers
The new military family leave provisions of the FMLA will have an immediate
and, in many cases, substantial impact on many employers.
Employers may be concerned with their ability lawfully to terminate the
employment of an individual who is on FMLA leave -- particularly given the current
state of the U.S. economy and the increasing number of employee layoffs and
reductions-in-force. Federal regulations interpreting the FMLA state that an
employee has 'no greater right to reinstatement or to other benefits and
conditions of employment than if the employee had been continuously employed during
the FMLA.' 29 C.F.R. §825.216(a). In other words, an employer may lawfully
terminate the employment of an individual on FMLA leave for legitimate business
reasons. However, if the employee challenges the dismissal as a violation of his
or her FMLA rights, the employer will have the burden of proving that the
employee would have been laid off during the FMLA leave period and, therefore,
would not be entitled to reinstatement. See id.
Employers covered by the FMLA should update their leave policies in light of
the new military family leave provisions. Again, service-member family leave
became effective on Jan. 28, 2008, so eligible employees already are entitled
to such leave.
However, FMLA leave due to a qualifying exigency arising out of a covered
family member's active duty will not become mandatory until the Department of
Labor issues regulations defining a 'qualifying exigency.' The department has not
announced an expected date for promulgation of the new regulations, but given
the significant number of U.S. military service members that are currently on
active duty or call to active duty status, the department can be expected to
act expeditiously on issuing the necessary regulations. Until such time as
regulations are issued, employers may, but are not required to, provide leave due
to a qualifying exigency.
Jeffrey S. Klein and Nicholas J. Pappas are partners at Weil, Gotshal &
Manges, where they practice labor and employment law. Kenneth Gavsie, an associate
at the firm, assisted in the preparation of this article.
6/2/2008 NYLJ 3, (col. 1)
END OF DOCUMENT
**************It's only a deal if it's where you want to go. Find your travel
deal here.
(http://information.travel.aol.com/deals?ncid=aoltrv00050000000047)
This archive was generated by hypermail 2b29 : Wed Aug 20 2008 - 05:29:35 PDT