*Patrick J. Hoban
On Monday, January 28, 2008, President Bush signed into law the National
Defense Authorization Act for 2008 (the “Act”). The Act amended the
Family Medical Leave Act (“FMLA”) to include leave for the immediate
families of servicemembers called to active duty in the United States
armed forces.
The Act expands the circumstances under which a covered
employee may take up to 12 workweeks of unpaid leave in a 12-month
period under the FMLA. An employee is now entitled to take FMLA leave
for a “qualifying exigency” because a spouse, son, daughter, or parent
is on or has been called to active military service (without requiring a
qualifying medical event). Though the Act is effective immediately,
the term “qualifying exigency” will be defined at a later time by
regulations currently being drafted by the Department of Labor.
Additionally, the Act expands the FMLA to allow for up to 26
workweeks of leave to a covered employee to care for a family member
injured as a result of military service. However, family members are
limited to an aggregate of 26 workweeks leave in any 12-month period.
Importantly, the Act extends the definition of “covered employee” to
include those qualifying as a servicemember’s “next of kin” (defined as
the nearest blood relative). During such leave, covered employees are
also entitled to other FMLA benefits (including continued healthcare
coverage and job restoration).
The FMLA runs concurrently with similar state Family Military
Leave laws. Currently, Illinois, Indiana, Maine, Minnesota, Nebraska
and New York have enacted some form of Family Military Leave law. While
the entitlements for such leave differ from state to state, these laws
generally provide leave benefits to the families of servicemembers prior
to, during and immediately following the servicemember's deployment.
It is important for employers in these states to know, and comply, with
the applicable state requirements as well as the provisions of the
recently amended FMLA.
*Patrick J. Hoban practices in all areas of
labor and employment law, including military leave. Pat represents
private and public sector employers. Prior to becoming an attorney, Pat
served as an officer in the United States Navy and was a Navy reservist
while employed as a municipal firefighter. For more information on
military leave or any labor or employment issue, contact Pat at
216.696.4441 or pjh@zrlaw.com.
