Update: New FMLA regulations issued by DOL on November 14, 2008
The recently enacted military family leave grants two new types of Family and Medical Leave Act (FMLA) leave to the relatives of military personnel. In short, the law requires employers to provide:
- 12 weeks of leave to employees who have a spouse, parent, or child who is on or has been called to active duty in the Armed Forces when they experience “any qualifying exigency,” and
- up to 26 weeks of leave to employees who are the spouse, parent, child, or next of kin of a servicemember who incurred a serious injury or illness on active duty in the Armed Forces.
There has been some confusion regarding the effective date of these new provisions. The legislation didn’t actually include an effective date, which generally means that it became effective immediately after President Bush signed it on January 28, 2008.
However, the U.S. Department of Labor’s (DOL) website, citing to the statutory language, states, “The [first bulleted provision] also permits an employee to take FMLA leave for ‘any qualifying exigency (as the Secretary [of Labor] shall, by regulation, determine) . . . ’” The DOL then interprets this language saying, “By its express terms, this provision . . . is not effective until the Secretary of Labor issues final regulations defining ‘any qualifying exigency.’ DOL is expeditiously preparing such regulations. In the interim, DOL encourages employers to provide this type of leave to qualifying employees.”
So what’s the problem?
The problem is that although the DOL has the authority to interpret the FMLA, courts have been known to disagree with its interpretations in the past. What employers don’t know is whether the agency’s views as set forth on its website on the delayed effective date for the new “qualifying exigency” leave provision will be accepted by a court.
As a practical matter, most employers — at a minimum — need to implement immediately a compliance strategy for responding to leave requests under these new provisions, pending the DOL’s issuance of final regulations. In addition to ensuring compliance, such a strategy also minimizes the risks of being on the perceived “wrong side” in a public relations situation — and being found to have violated the new military family leave provisions.
Therefore, our advice continues to be to take the most conservative approach for employers’ compliance efforts — i.e., to assume that the new military family leave provisions were effective immediately, when enacted, and to implement compliance steps as soon as possible. The DOL will issue regulations in the future, at which time employers may need to modify their initial compliance programs based on those regulations.
For more indepth information on this change in the law, check out upcoming issues of the Employment Law Letter for your state. There also will be a comprehensive article on the new leave requirements in the next issue of the FMLA Compliance Bulletin, part of the FMLA Compliance Manual. You also can learn more about the changes in the laws at the audio conference, “New FMLA Leave Rules for Soldiers’ Relatives: What Employers Need to Know.”