FMLA Changes Affect Military Families

February 17, 2008
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GRAND RAPIDS — Changes to the Family and Medical Leave Act were signed into law with President George Bush’s approval late last year as part of the 2008 National Defense Authorization Act. Now, military families in certain circumstances have some special provisions under FMLA, said Bob Chovanec, a Warner Norcross & Judd partner who specializes in employment law.

“I’ve talked to several employers already. None consider this a serious burden,” Chovanec said. “All the ones I’ve talked to believe it is a good thing. It will cause some employers some hardship, but it’s so much narrower than other forms of FMLA leave.”

The Family and Medical Leave Act provides that companies with 50 or more employees must allow certain workers to take up to 12 weeks off, without pay, in specific circumstances: health issues for the employee or the employee’s parent, child or spouse; and to be with a newborn or newly adopted child. The employee must have worked at the company for the previous 12 months, and have logged at least 1,250 hours. The 50 employees must be stationed with 75 miles of each other.

One of the two new provisions is aimed at spouses, children or parents of military members who must prepare for deployment. The military member must be called to active duty “in support of a contingency operation,” and the relative must be needed to deal with “any qualified exigency,” Chovanec said. Those circumstances are to be explained in regulations expected from the U.S. Department of Labor, which oversees the FMLA. Chovanec said he anticipates quick action on the regulations as a way to support military families. The leave will be available for up to 12 weeks, minus any other FMLA time already accumulated for any other purpose.

“This form of leave is clearly designed to allow military families some time off to handle the dislocations that occur when a family member is going to become on active duty in harm’s way,” he said.

The second provision is for relatives of military members injured or ill because of their service. It applies not only to the spouse, parent or child of the member of the military, but also to “next of kin,” who Chovanec said would be the next closest blood relative.

The unpaid leave is available for up to 26 weeks — again minus any other FMLA leave already accrued. While like other forms of FMLA the leave time can be partitioned, the 26-week total is limited to a 12-month period and cannot be repeated for the same member of the service.

Chovanec said many companies, especially larger ones, already informally permit employees time off for that purpose.

“Some of this, in West Michigan, already has such strong support that the idea that an employee might have to take time off to be with an insured service member is not going to be viewed by employers as a bad thing,” Chovanec said.

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