FMLA Leave Expanded for Military Families

On January 28, 2008, President Bush signed into law the National Defense Authorization Act. Included in the Act is the first expansion of the Family and Medical Leave Act. Specifically, the Act adds two new types of FMLA leaves: 1) leave for employees caring for an injured service member; and 2) leave for employees who have a family member called to active duty.

Leave for Employees Caring for an Injured Service Member

Eligible employees are entitled to take up to 26 weeks of leave during a single 12-month period to care for a recovering service member who is also a spouse, son, daughter, parent, "next of kin" or "nearest blood relative." This permits more than twice the maximum amount of leave currently available to employees under the FMLA. The provision setting forth this type of leave is effective as of January 28, 2008. The Act defines a recovering service member as a member of the Armed Forces who suffered an injury or illness while on active-duty. The injury or illness needs to be serious enough to prevent the service member from performing the duties of his or her office, grade, rank or rating.

Leave for Employees with Family Called to Active Duty

Eligible employees are entitled to take up to 12 weeks of leave because of a "qualifying exigency" arising out of the employee's spouse, child or parent being called to active duty in the Armed Forces. The Department of Labor states on its website that the active duty leave for family members "is not effective until the Secretary of Labor issues final regulations defining 'any qualifying exigency.'"

Illinois Law already requires employers with more than 50 employees to provide up to 30 days of unpaid leave to an employee who has a spouse or child called to military service lasting longer than 30 days and during the time federal or State deployment orders are in effect. Notice that while the expanded FMLA leave provision provides for leave for an employee with a parent, spouse or child called to active duty, Illinois law currently only provides leave to an employee who has a spouse or child called to active duty.

Employers will need to carefully consider whether they can run Illinois Family Military Leave concurrently with FMLA leave. This will depend, in part, on how the DOL defines "qualifying exigency." In addition, Illinois law currently states that employees are not eligible to take Illinois Family Military Leave until they have exhausted "any other leave that may be granted to the employee." If this provision in the current state law is not amended, it may be construed to expand the amount of leave provided under the new federal law.

Other FMLA provisions, such as the right to reinstatement and the requirement to continue benefits, will apply to these types of leaves as well. Employers need to act quickly to review their FMLA policies to recognize and include these new types of leave required under the law.

If you have any questions about this or any other employment law topic, please contact attorney Rebecca Dobbs at (630) 377-1554, or via email at redobbs@stch.w-p.com.