The
first expansion of the Family and Medical Leave Act
(FMLA) in nearly 15 years moved another step closer to
becoming law when the Senate voted 91-3 on Jan. 22,
2008, to approve a revised defense authorization package
(H.R.
4986). The bill includes a provision to
expand leave protections under the FMLA for the family
of U.S. soldiers.
The
House of Representatives passed the measure a week
earlier by a vote of 369-46. The legislation will now
move to the White House, where President Bush is
expected to sign it into law. The quick action by
Congress to pass the authorization bill came as no
surprise to political observers, who had predicted that
H.R. 4986 would be passed and enacted by the end of
January.
The
FMLA expansion included in H.R. 4986 is identical to the
provision included in an earlier version of the defense
authorization package (H.R.
1585), which the president vetoed in late
December. According to White House officials, the
president’s objections to H.R. 1585 stemmed from a
provision that would allow private citizens and U.S.
businesses to sue the government of Iraq and had nothing
to do with expanding FMLA protections for the families
of military personnel.
As
passed by Congress, the FMLA expansion will require
businesses to offer up to 26 weeks of unpaid leave to
employees who provide care to wounded U.S. military
personnel. Under the expansion, employers will be
required to provide 12 weeks of FMLA leave to the
immediate family members (spouses, children or parents)
of soldiers, reservists and members of the National
Guard who have a “qualifying exigency.” While the
measure does not define “qualifying exigency,” examples
could include overseas assignments, recalls to active
duty and troop mobilizations, sources say.
The
president has indicated that he supports the FMLA
expansion and agreed with recommendations made by the
Commission on Care for America's Returning Wounded
Warriors. As soon as the commission released the
recommendations in March 2007, members of Congress began
maneuvering to enact changes to the law.
So, the
bottom line for employers is that the FMLA expansion
will become law—and soon. According to the U.S.
Constitution, the president must sign or veto
legislation passed by Congress within 14 days. Sources
say that the president will now sign H.R. 4986, since
Congress moved to resolve problems with the Iraqi
lawsuit provision.
As
drafted and passed by Congress, the FMLA changes do not
include an effective date. Several attorneys familiar
with the measure say employers should consider that the
leave expansion will take effect immediately on the
president’s signature.
“The
way the legislation is drafted, you have to interpret
that the FMLA changes become effective as soon as the
president signs the bill,” said Frank Alvarez, a partner
with Jackson Lewis and national coordinator the law
firm’s Disability, Leave and Health Management Practice
Group.
However, employers shouldn’t panic about federal
regulators breathing down their necks, sources say. The
chief congressional sponsors of the FMLA expansion have
stated that they were aware employers would need time to
comply with the new leave requirements.
Still,
it is important for employers to act quickly and get
ready now to comply with the changes to the FMLA.
Alvarez says HR departments should start working as
soon as possible with their in-house counsels or
corporate attorneys to devise a plan for complying with
the new requirements.
“Employers need to be aware that the new leave options
will be available and should be prepared to notify
employees about the changes,” he said. “The FMLA is all
about notification. Any employer that is prepared to
notify [its] employees about these new leave options
will be ahead of the game.”
Officials with the Department of Labor have stated that
that they will be drafting new regulations and
guidelines for the FMLA expansion, but until those
regulations define “qualifying exigency,” employers
should interpret the term broadly, sources familiar with
the issue agree.
“It’s
fairly broad term to begin with and until employers
receive some guidance from the Labor Department, it’s
probably a good idea to be flexible and not to be overly
restrictive when granting the leave,” Alvarez said. “If
the reasons for the leave request sound reasonable, then
why wouldn’t an employer grant the leave?”
If you have any questions regarding FMLA or any other
human resources topic, please contact Dave Hansen
hansend@hr-onesource.com
or Jack Lipovac
lipovacj@hr-onesource.com at (515)
221-1718.
