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Have You Updated Your FMLA Policies?

March 2008

On January 28, 2008, President Bush signed into law the Support for Injured Service Members Act (the “Act”), which expands the categories of leave under the Family Medical Leave Act (“FMLA”). Under the new Act, there are two additional categories of protected FMLA leave: (1) Active Duty Family Leave and (2) Injured Servicemember Leave.

Active Duty Family Leave is available to an eligible employee with a spouse, parent or child who is on or has been called to active duty in the Armed Forces. The employee may take up to twelve (12) weeks FMLA leave when they experience a "qualifying exigency." While the Act does not currently define what constitutes a “qualifying exigency,” it is expected that the Secretary of Labor will be shortly issuing regulations clarifying this term. Active Duty Family Leave may be taken for a qualifying exigency intermittently or on a reduced schedule.

Injured Servicemember Leave is available to an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember who incurs a serious injury or illness on active duty in the Armed Forces. A covered servicemember is defined as "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." Eligible employees may take up to twenty-six (26) weeks of leave in a 12-month period (including regular FMLA leave). Injured Servicemember Leave may be taken intermittently or on a reduced schedule when medically necessary over the course of twelve (12) months. This form of new leave is also a one-time leave; that is, it is only available to an eligible employee during a single 12-month period.

It should be noted that the standard for Injured Servicemember Leave is different than the standard under the original FMLA provisions. While the original FMLA refers to and applies the term “serious health condition,” the Injured Servicemember Leave is available where the covered servicemember suffsers a serious injury or illness, which is defined under the Act as “an injury or illness incurred by the member in line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member's office, grade, rank, or rating.” As such, it seems evident that the types of medical conditions or injuries that will warrant granting Injured Servicemember FMLA Leave will be much more expansive than that under the original FMLA.

While the Department of Labor has issued new proposed regulations further clarifying the FMLA and these new forms of leave, the final regulations have not been issued. Regardless, the Act became effective upon enactment and employers who are covered under the FMLA are required to comply with its provisions. Covered employers are advised to err on the side of caution and develop workplace policies for compliance with these new FMLA leave categories so eligible employees may exercise their rights under the law, as necessary.


For more information, please feel free to contact:

Catherine P. Wells

(973)530-2051 / cwells@wolffsamson.com.

Denise J. Pipersburgh

(973)530-2090 / dpipersburg@wolffsamson.com.