The FMLA was recently amended, effective January 28, 2008, to provide two new types of leave for employees with family members in the military service.  In addition, substantial changes to the fifteen year old law were proposed a few weeks later by the U.S. Department of Labor (“DOL”).

The amended forms of leave, which cover employers and employees who are otherwise subject to the FMLA, allow active duty leave for up to 12 weeks during any 12 month period because of a “qualifying exigency”.  Unfortunately, the term “qualifying exigency” is not defined in the law and will be subject to definition by regulations to be promulgated by the Secretary of Labor, as described below. 

In addition, the law also allows caregiver leave for a spouse, child, parent, or “next of kin” that is injured while on active military duty.  The leave can be taken for up to 26 weeks of leave during a single 12 month period to provide care for those injured in the line of duty.

These two new forms of leave can be taken intermittently and are generally unpaid, although the rules governing the substitution of paid leave that applies to other form of FMLA will also apply.

Although there are no interpretative regulations at this time, the Department of Labor is requiring that employers “act in good faith” immediately by providing leave pursuant to the new law.  Thus, employers should be very cautious in dealing with requests for leave and should be prepared to revise their policy documents immediately.

Most recently, on February 11, 2008, the DOL published proposed revisions to address servicemember leave and some of the public comments concerning the FMLA gathered during the past year.  These proposed regulations include new certification forms, eligibility and notice rules and other proposed changes that are generally favorable to employers.  The proposed rules are subject to public comment for 60 days, until April 11, 2008.

For more specific guidance on these issues, or for assistance in revising policies or handling requests for leave under the FMLA, you may reach Mr. Gold at (717) 237-6702 or by email at kgold@rhoads-sinon.com.