Vol. 32, No. 3, 7. The Fifteen-Year FMLA Facelift.

• Author: By Antonio E. Bendezu

Wyoming Bar Journal

2009.

Vol. 32, No. 3, 7.

The Fifteen-Year FMLA Facelift

Wyoming LawyerIssue: June, 2009The Fifteen-Year FMLA FaceliftBy Antonio E. Bendezu On November 17, 2008, the U.S. Department of Labor ("DOL") issued new regulations (the "Final Rule") that expanded and clarified the provisions of the Family Medical Leave Act of 1993 (the "FMLA"), 29 U.S.C. § 2601, et seq. The Final Rule became effective on January 16, 2009, being the culmination of continuing pressure from business groups and employers, calls for public comments in 2006 and 2008, judicial interpretation, and the passage of new military family leave provisions.

The expansion of the FMLA arose from enactment of the National Defense Authorization Act for FY 2008 ("NDAA"), Public Law 110-181, on January 28, 2008. Otherwise, the clarifying provisions of the Final Rule amount to a response to the invalidation of portions of DOL regulations via the U.S. Supreme Court and lower court decisions, the DOL's experience in enforcing and administering the FMLA since 1993, input from DOL/FMLA stakeholders, and nearly 20,000 public comments. The following outlines the most significant changes to the regulations:

Military Family Leave

Section 585(a) of the NDAA added two leave entitlements to the FMLA: Military Caregiver Leave and Qualifying Exigency Leave.

1. Under Military Caregiver Leave (also known as Covered Servicemember Leave), eligible employees who are family members (spouse, son, daughter, parent, next of kin) of covered service members will be allowed up to 26 work weeks of unpaid leave in a single 12-month period to care for a covered servicemember(fn1) with a serious illness or injury(fn2) incurred in the line of duty on active duty.

a. The "single 12-month period" begins on the first day the employee takes leave for this reason and ends 12 months later, regardless of the 12-month period established by the employer for other types of FMLA leave.

b. An eligible employee is limited to a combined total of 26 work weeks of leave for any FMLA-qualifying reason during the "single 12-month period." In other words, only 12 of the 26 weeks may be attributable to any FMLA-qualifying reason other than to care for a covered servicemember.

2. Qualifying Exigency Leave is meant to help the families of members of the National Guard or Reserves manage their affairs while the servicemembers are on active duty in support of a contingency operation. The standard 12 weeks of unpaid FMLA leave are now available to eligible employees with a family member (spouse, son, daughter, parent) serving in the National Guard or Reserves.

a. The "single 12-month period" can be the 12-month period regularly established by the employer for FMLA leave.

b. The 12 weeks can be used for "any qualifying exigency" that arises from the fact that a covered military member is on active duty, or is called to active duty, in support of a contingency operation(fn3).

i. The Final Rule defines "qualifying exigency" by citing eight categorical examples of reasons to use FMLA leave: 1) short-notice deployment (up to seven days of leave, from the date of notification), 2) military events and...