Stewart & Irwin Shareholder, Jeffrey B. Halbert, advises that President Bush Signs National Defense Authorization Act Resulting in First Amendments to the Family and Medical Leave Act since its Enactment in 1993

Stewart & Irwin Shareholder, Jeffrey B. Halbert, advises that
President Bush Signs National Defense Authorization Act Resulting in First Amendments to the Family and Medical Leave Act since its Enactment in 1993

            On January 28, 2008, President Bush signed into law the National Defense Authorization Act.  This is significant for employers with fifty (50) or more employees because the Act contains the first substantive amendments to the Family and Medical Leave Act (“FMLA”) since its enactment in 1993.  The law amends the FMLA’s leave provisions to include leave for family members to care for an injured servicemember and leave due to a call to active duty. 

            Leave During a Family Member’s Active Duty

            Employees who have a spouse, parent or child on active duty in the Armed Forces may take up to twelve (12) weeks of FMLA leave yearly when they experience a “qualifying exigency” arising out of the fact that a spouse, parent or child is on active duty or has been called or notified about an impending order to active duty in support of a contingency operation.  Contingency Operations are defined by the law as actions involving operations or hostilities against enemies of the United States or opposing forces, or active duty during a war or national emergency.  The Department of Labor has been directed to issue regulations that define “qualifying exigency,” and in the meantime, employers need to make a good faith effort to comply with this new requirement.  That may be difficult when employers do not know exactly what a key term of the new law actually means, so consulting with qualified counsel when faced with a request for FMLA leave on this basis is critical. 

            Injured Servicemember Leave

            The most significant of the two leaves and that which poses the most concern to employer operations is that involving injured servicemember leave.  This obligation is effective immediately.  In the context of traditional FMLA leave, an eligible employee is entitled to twelve (12) weeks of unpaid leave.  However, injured servicemember leave provides an eligible employee who is the spouse, son, daughter, parent or next of kin of a covered servicemember to twenty-six (26) weeks of leave during a twelve (12) month period to care for the servicemember and can be related to conditions that may not be “serious health conditions” as previously defined by the FMLA.  The law defines “serious health condition or illness”  as an injury or illness incurred in the line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the servicemember’s office, grade, rank or rating.  Importantly, this leave must be taken within a single twelve (12) month period. This is significant to employers given that the FMLA requirement of restoration of the employee to the same or similar position upon return from leave remains unaffected by the amendment.  Despite the Department of Labor’s indication that it will be issuing regulations in the future, it has stated that employers need to comply with this portion of the amendment immediately. 

            A majority of the definitions and requirements previously provided by the FMLA remain and will apply to both forms of new FMLA leave. 

            Employers are strongly recommended to immediately amend their policies to account for these significant changes in the law.  Please contact Jeffrey B. Halbert at Stewart & Irwin, P.C. to discuss taking the necessary steps to comply with this new law.

            Jeffrey B. Halbert is a Shareholder at Stewart & Irwin, P.C.  He focuses his practice in corporate and business law and in the area of employment and labor litigation. 

            He handles litigation before state and federal courts in Indiana.  He also practices before numerous state and federal agencies including, but not limited to, the Equal Employment Opportunity Commission, the Indiana Civil Rights Commission, the National Labor Relations Board and the Indiana Department of Labor.

            Jeff holds a bachelor’s degree in history from Clarion University of Pennsylvania and a doctor of jurisprudence degree from the Ohio Northern University Claude W. Petit College of Law.