The Family and Medical Leave Act: Amendments, Proposed Regulations, and Myths - July 2008 - Labor and Employment Law
| Publication year | 2008 |
| Pages | 89 |
| Citation | Vol. 37 No. 7 Pg. 89 |
2008, July, Pg. 89. The Family and Medical Leave Act: Amendments, Proposed Regulations, and Myths - July 2008 - Labor and Employment Law
July 2008
Vol. 37, No. 7 [Page 89]
Labor and Employment Law
Labor and Employment Law articles are sponsored by the CBA Labor and Employment Law Section to present current issues and topics of interest to attorneys, judges, and legal and judicial administrators on all aspects of labor and employment law in Colorado.
John M. Husband, Denver, of Holland & Hart LLP - (303) 295-8228, jhusband@hollandhart.com
Andrew W. Volin is a management-side employment lawyer in Denver with Sherman & Howard L.L.C.
The FMLA entitles employees to time off from work in a number of situations. This article identifies recent legislation amending the FMLA to create new reasons for time off, newly proposed regulations for the FMLA generally, and common misperceptions about the FMLA.
The Family and Medical Leave Act of 1993 (FMLA)(fn1) entitles certain workers the right to take up to twelve weeks of unpaid leave every twelve months for a qualifying condition, such as a serious health condition, the birth or adoption of a child, or to care for a family member with a serious health condition. This leave entitlement affects most of the workforce and is widely used. According to the U.S. Department of Labor (DOL), more than 95 million employees work for firms covered by the FMLA. In 2005, more than 77 million workers were eligible for leave, and more than 7 million took FMLA leave, with more than one million taking intermittent (as opposed to a continuous) leave.(fn2)
On January 28, 2008, Congress amended FMLA by adding two new types of leave related to members of the armed forces.(fn3) On February 11, 2008, the DOL published new proposed regulations interpreting FMLA.(fn4) The DOL also published new draft forms for use in processing FMLA leave requests. The DOL expects to release final regulations before the end of George W. Bush's administration in January 2009.
This article highlights the amendments and the new proposed regulations. Some common misconceptions about the FMLA are identified and explained.
Congress amended the FMLA as part of the National Defense Authorization Act of 2008. Two new types of leave were created, both of which impact families of armed forces service members.
The first type of leave creates a new entitlement to twenty-six weeks of leave (rather than twelve) in a single twelve-month period. It permits a "spouse, son, daughter, parent, or next of kin" to take up to twenty-six weeks of leave to care for:
[a] member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.(fn5)
A "serious injury or illness" is one that was incurred while "on active duty that may render the service member medically unfit to perform the duties of the member's office, grade, rank, or rating."(fn6) This type of leave is effective immediately.
A second amendment permits an employee to take FMLA leave for:
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.(fn7)
This type of leave will not become effective until the DOL issues regulations defining the term "qualifying exigency."(fn8) It is expected that a qualifying exigency will encompass absences to deal with personal matters, such as childcare and finances, as well as military matters, such as meetings and...
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