As if it weren’t enough of a hassle, FLMA’s just gotten messier. The feds have added “servicemember family” leave—but without the regulations needed to administer it—and “qualifying exigency” leave—not required but “encouraged.” Here’s what you need to know.
The Family and Medical Leave Act (FMLA), already HR’s least favorite law, has just gotten more so. However, attorney Frank Alvarez, a partner in the White Plains, New York, office of nationwide law firm Jackson Lewis, and the national coordinator of their disability, leave, and health management practice group, says there’s no reason to panic.
What the feds have done is added “servicemember leave,” which allows family members up to 26 weeks off the job to care for a wounded member of the military. They’ve also added so-called “qualified exigency leave,” which applies in any situation where the family member needs time off because their loved one is serving in the military, but for reasons other than caring for him or her.
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What worries employers is that although the law is in effect now, the regulations businesses need to administer them— for example, a definition of just what a “qualified exigency” is—don’t yet exist.
Until they do, Alvarez advises simply viewing the changes as amendments to the existing law. He was speaking at a recent SHRM conference.
That means assume that the existing FMLA rules apply unless stated otherwise in the amendments. And he suggests that you download a copy of the statute, because it shows in bold where the law has changed. www.dol.gov/esa/whd/fmla/fmlaamended.htm
Alvarez also offers this table to help HR managers get a grasp on the new requirements:
For both types of leave, he says, the standard FMLA provisions still apply: You must continue group health benefits, you must permit intermittent leave, and job restoration is required.
Here are some tips for dealing with the two new types of leave.
Qualifying Exigency Leave Entitlement
Though the law’s been passed, this provision is not in effect until the secretary issues a definition of “qualifying exigency.” In the interim, DOL encourages employers to provide this type of leave.
To offer it now, but not expose yourself to problems when the regs do come out, Alvarez suggests including a vague definition for “qualifying exigency” in your policy. Give a few obvious examples (some have suggested the need for childcare because a spouse is on duty, or time off to attend predeployment briefings), and then handle requests on a case-by-case basis. That way, you can offer the leave now without painting yourself into a corner later.
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Servicemember Family Leave Entitlement
There are many open questions concerning this leave. One gray area involves “next of kin,” which usually means the nearest blood relative of the servicemember and those who served in loco parentis. But what do you do if the next of kin is unable to provide assistance and your employee, not a blood relative, volunteers to do it?
Alvarez recommends that employers start by making a reasonable effort to define the terms, and then apply their definitions consistently … then hope that regulations come out before problems arise.
In the next issue, more on FMLA hassles and an audioconference that pins down one of the law’s most challenging aspects.
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