• FMLA Amendments Expand Employers' Obligations
  • March 14, 2008
  • Law Firm: Bingham McCutchen LLP - Boston Office
  • Employers should pay close attention to recent amendments to the Family Medical Leave Act (FMLA) providing time off for family members who provide care to someone who received a serious injury or suffers from a serious illness while serving in the U.S. Armed Forces.

    The FMLA amendments became law on January 28, 2008 and the changes they make are significant. See generally Public Law 110-181.

    Under the FMLA amendments, the nearest blood relative of a covered service person who suffers a serious injury or illness in the line of duty can take up to 26 weeks (6 months) of unpaid leave in a given year to care for that service person. See Public Law 110-181 §102(3). This six-month leave is much greater than what an FMLA eligible employee could have taken in the past to care for an injured member of the military. Previously, an employee was entitled to a maximum leave of only 12 weeks. The FMLA amendments expand the definition of who is an eligible caregiver and use the term “nearest blood relative.” See id. §101(18).

    The new amendments also provide that an FMLA eligible employee can take up to 12 weeks off in a 12-month period if the employee’s spouse, child or parent is on active duty or is called to active duty and a “qualifying exigency” exists. See id. §102(a)(1)(E). Such active duty FMLA leave is not now defined and will not become effective until the U.S. Department of Labor issues regulations detailing what such a “qualifying exigency” is. The new FMLA amendments are also unclear as to whether the 26 weeks FMLA amendments serious injury leave is available only once or every year. See id. §102(3).

    Careful employers should now revise their companies’ FMLA policies to reflect these changes. Also, while awaiting the Department of Labor’s new regulations and guidance, the wisest course for an employer faced by a leave request under the amendments is to err on the side of liberally granting such leaves.