New Law Enhances FMLA Leave for Military Families

February 21, 2008

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Recent amendments to the Family and Medical Leave Act will allow postal workers and others covered by the law to take up to 26 weeks of leave to help eligible family members recover from a military service-related injury or illness.

Amendments to the Family and Medical Leave Act (FMLA) also will permit workers to take up to 12 weeks leave to fulfill family obligations if a spouse, child or parent is on active duty, or is being called to active duty.

The leave adjustments were approved by Congress as part of the FY 2008 National Defense Authorization Act (H.R. 4986), which President Bush signed into law.

The FMLA now permits a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks of leave during a 12-month period to care for a “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.” The FMLA leave amendment for service-connected injuries became effective immediately, on Jan. 28, 2008.

According to the Department of Labor (DOL), the active-duty provision permits workers to take up to 12 weeks of FMLA leave for “any qualifying exigency arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.” The active-duty provision will become effective when the DOL issues final regulations defining the terms of “any qualifying exigency.”

Meanwhile, union leaders are troubled that proposed new regulations issued on Feb. 11 will weaken medical privacy and other FMLA protections.

The FMLA was signed into law by President Clinton in 1993. It requires employers to grant eligible employees up to 12 workweeks of unpaid leave during any 12-month period due to a serious health condition, to care for an immediate family member with a serious health condition, to care for a newborn child, or for adopting a child or caring for a foster child.

The FMLA applies to government agencies and most businesses that employ 50 or more workers. To be eligible, employees must have worked for their employer for least 12 months and must have worked a minimum 1,250 hours during the 12-month period immediately preceding the FMLA leave.

[FMLA Leave Options for Military Familes]

Proposed FMLA Regulations Threaten Medical Privacy, Other Protections

Shortly after agreeing to expand leave for military families, the Bush administration proposed new regulations that would weaken employees’ medical privacy protections and make it more difficult for workers to use leave under the Family and Medical Leave Act (FMLA). Regulations proposed by the Department of Labor on Feb. 11, 2008, have caused concern among unions.

  • Current regulations prohibit employers from making direct contact with an employee’s physician. The proposed rules would create exceptions to this prohibition.
  • Eligible employees would be required to re-certify lifelong or chronic conditions at least twice a year, regardless of the length of the certification issued by a healthcare provider. (Employees would have to bear the costs of the additional trips to the doctor.) Under current regulations, such certifications last up to a year.
  • Current regulation prohibit the disclosure of a “diagnosis or prognosis” on any form. The proposed rule would allow employers to request but not require disclosure.
  • While the proposed regulations would allow eligible employees to seek damages against employers who fail to provide them proper notice of their rights under the FMLA, the burden of proof in such cases would be quite high and employees would have to show actual damages suffered.
  • Current regulations stipulate that a health problem can qualify as a serious condition when an absence is followed by two visits with a healthcare provider. The proposed regulations would restrict FMLA eligibility by requiring that follow-up treatment take place within 30 days of the start of a medical absence.
  • Current law requires employers to provide notice to employees within two business days. The proposed rule expands the period to five business days.

The APWU and other unions are currently reviewing the proposed regulations and plan to file objections within the 60-day public comment period before the new regulations can take effect. The Labor Department has until the end of 2008 to publish its final regulations.

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