Expanded Federal Leave for Military Families (2-5-08)

By Michael C. Saqui and Anthony P. Raimondo

The Family and Medical Leave Act (“FMLA”) has recently undergone expansion to include family members who need to care for injured and ailing military personnel. On January 28, 2008, President Bush signed into law the National Defense Authorization Act (“NDAA”), which requires employers to provide a “spouse, son, daughter, parent, or next of kin” with up to 26 workweeks of leave per year to care for a servicemember (including members of the Armed Forces, the National Guard, and the Army Reserves) “who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list” for injuries or illnesses incurred in active duty. The law is not limited in scope to the “war wounded”: it covers any servicemember whose injury or illness renders him or her “unfit to perform his or her duties,” even on a temporary basis. This can include injuries and illnesses unconnected to military action, such as auto accidents and diseases, provided the onset was while the servicemember was on active duty.

Leave taken under the NDAA may not operate in a way which limits the availability of other forms of FMLA leave, such as the 12 workweeks already available to care for newborns, new adoptees and foster children, immediate family members with serious health conditions, and for one’s own serious health condition. However, leave taken for such reasons can limit the amount of leave taken under the NDAA. The entitlement to leave will not exceed 26 weeks during any 12-month period. For example, an employee who takes 12 weeks off to care for a newborn will be entitled to no more than an additional 14 weeks to care for an injured servicemember.

The NDAA also calls for up to 12 weeks of unpaid leave for employees whose spouse or child is a servicemember facing recall for a “qualifying exigency.” However, “qualifying exigency” is not yet defined; it is expected that the Department of Labor (“DOL”) will provide the definition. This portion of the NDAA will not take effect until the DOL provides the necessary definitions.

In order to take leave under the NDAA, the employee must provide notice that is “reasonable and practicable.” These terms are not fully defined, except that 30 days’ notice must be provided for those intending to take leave to care for a servicemember, unless treatment requires leave on shorter notice (in which case, notice must be given “as is practicable”).

It remains to be seen how NDAA leave will interact with similar state initiatives, such as California’s requirement for Military Spouse Leave, which was signed into law on October 9, 2007. For example, it is unclear whether the California requirement of 10 days off for qualifying spouses and domestic partners should be in addition to the days required under NDAA.

COUNSEL TO MANAGEMENT:

Revise handbooks and policies to reflect leave for covered family members under the NDAA. California employers, if they haven’t already, must also include provisions for state-mandated Military Spouse Leave. Realize that although the NDAA law is already in effect, there are some ambiguities, such as what constitutes a "qualifying exigency" and how it will interact with similar state-law provisions. Where confusion arises, consult with experienced counsel as to handle a given situation. If you have not updated your handbook in a few years, it may be time to consider at a new or updated handbook.

Saqui & Raimondo will closely monitor this developing area of law and provide updates as they become available.

The goal of this article is to provide employers with current labor and employment law information. The contents should not be interpreted or construed as legal advice or opinion. For individual responses to questions or concerns regarding any given situation, the reader should consult with Saqui & Raimondo at (831) 443-7100 in Salinas, or (916) 782-8555 in Sacramento.