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Expanded FMLA Will Complicate Coordination of Leave 
 

1/29/2008  By Allen Smith 
 
 


Coordination of compliance between federal and state leave mandates just became more complex because of the expansion of the Family and Medical Leave Act (FMLA) that was signed into law on Jan. 28, 2008.

New coordination-of-leave issues will arise mainly because of the FMLA’s new leave mandate for family members of people who are on or about to go on active duty, according to Conrad Kee, a Jackson Lewis attorney and reservist who has served in Iraq. This mandate creates an entitlement for up to 12 weeks of leave for the spouse, son, daughter or parent of a person on or about to be on active military duty for any “ qualifying exigency,” a phrase that the U.S. Department of Labor (DOL) must clarify through rulemaking. In effect, the active duty leave mandate expands the types of family leave—as opposed to medical leave—available to these workers, as long as they have worked 1,250 hours in a 12-month period at a site with at least 50 employees within 75 miles. The new leave may be taken intermittently.

By contrast, the FMLA’s new requirement for caregiver leave for wounded service members does not raise the same coordination issues with state laws, Kee told SHRM Online. The new caregiver mandate grants an eligible employee who is the spouse, son, daughter, parent or next of kin—defined as the nearest blood relative—of a covered service member up to 26 workweeks of unpaid leave during one 12-month period to care for a wounded service member. A husband and wife who work for the same employer can use no more than 26 weeks combined for this new leave.

All Not in the Family

Military family leave laws already exist in California, Illinois, Indiana, Maine, Minnesota, Nebraska and New York. The FMLA does not pre-empt these state laws.

Many of the state leave laws apply to small employers not covered by the FMLA, and some protect employees not covered by the federal law, though only one applies to the children of service members.

An assignment for HR and employers in the early part of 2008 will be “to figure out state by state when you can run these leaves concurrently and serially,” Margaret Hart Edwards, an attorney with Littler Mendelson in San Francisco, told SHRM Online. If the leave under state law is similar to a “qualifying exigency,” employers might be able to run them concurrently, except in California.

In California, leave mandated by state law is in addition to federal law, according to Susan Webman of FortneyScott in Washington, D.C., and the principal drafter of the Uniformed Services Employment and Reemployment Rights Act while she was the primary legal and policy advisor at the DOL.

California’s law, which Gov. Arnold Schwarzenegger signed on Oct. 9, 2007, requires employers with more than 25 employees to provide up to 10 days of unpaid leave if a military spouse is on leave from deployment in a combat zone. In California, domestic partners would have the same legal rights as spouses, despite the military’s “don’t ask, don’t tell” policy.

California’s law was modeled on New York’s law, the first of its kind when it was enacted in 2006, according to Edwards. The New York law also requires up to 10 days of unpaid leave for the spouse of a person on active duty in a combat zone, but, like the FMLA, does not grant the same rights to domestic partners as it does to spouses. Unlike the expanded FMLA, children and parents do not have the right to military family leave under the state law.

In Illinois, small employers (those with 15 to 50 employees) must provide up to 15 days of unpaid military family leave to the spouse or parent of a soldier called to military service. Larger employers have to provide up to 30 days of leave. Edwards said that Nebraska’s military family leave law is almost “a carbon copy” of Illinois’.

Employers with 50 or more employees must provide active duty leave for up to 10 days under Indiana’s law for employees who are grandparents, siblings, spouses or parents of individuals ordered to active duty. Grandparents and siblings are not covered by the FMLA’s expanded active duty mandate, though they might be next of kin eligible for the FMLA’s new caregiver leave for wounded service members.

Maine takes a different approach, mandating that employers with 15 or more employees provide 15 days of leave before, after or during deployment to the spouse, domestic partner or parent of someone called to active duty.

Of the state military family leave laws, only Minnesota mandates time off for the children of those on active duty. Minnesota’s law mandates up to 10 days off if an employee is the parent, child, sibling or spouse of someone killed or injured on active military duty.

Qualifying What?

Until the DOL issues regulations clarifying the meaning of a “qualifying exigency,” employers are in “a very awkward period,” Edwards observed. The DOL already is on the verge of issuing revised proposed FMLA regulations and may take this opportunity to issue proposed regulations for the new military family leave requirements, according to Lisa Horn, manager of health care for the SHRM Government Affairs Department.

The DOL has stated on its web site that the new caregiver leave is effective as of Jan. 28, 2008, but that the active duty leave for family members “is not effective until the Secretary of Labor issues final regulations defining ‘any qualifying exigency.’” The DOL noted that it “is expeditiously preparing such regulations. In the interim, DOL encourages employers to provide this type of leave to qualifying employees.”

Edwards remarked that if she were drafting the DOL regulations, “I would be collecting state laws and trying to develop a definition of ‘qualifying exigency’ that would swallow the reasons referred to in state laws.” She said that this “would be a favor to employers.” If the DOL provides a “good definition, hopefully it would provide some way to fit the state and federal laws together.”

Sue Willman, SPHR, an attorney with Spencer Fane Britte & Browne LLP in Kansas City, Mo., noted that the phrase “qualifying exigency” is broad and could include shutting down a house for a service member, snow-blowing walks or mowing the lawn while a family member is on active duty.

It’s understandable that an employee may want to take time off work to bond with a family member on the verge of going off to Iraq or elsewhere where the loved one faces the possibility of being killed or injured. Time away for family members to bond will be protected leave under the expanded FMLA, Willman said. She cautioned employers not to ask for documentation of the need for active duty leave until the DOL provides guidance.

Willman suspects “that some states that have the leave laws may amend the laws to be consistent” with the expanded FMLA.

As for the FMLA amendments, she observed that they have “opened the door to FMLA expansion. Employers have to be more sensitive that it could be expanded in other ways.”

Allen Smith, J.D., is SHRM’s manager of workplace law content.

 


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