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« Simple, Effective & Illegal | Main | Military Family Leave Notice »
Wednesday
Mar122008

New Military Family Leave Law

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Employers must follow new undefined law.

There are two new types of leave under federal law for families of active service members - active duty family leave and injured service member family leave. What are your obligations under this new law? We do not know. The statute passed by Congress requires you to follow rules that will be adopted by the Secretary of Labor. You must follow this new law effective January 28, 2008 even though no new rules have been adopted.

The purpose of the law is admirable. Service members should visit with their families before they are deployed or when they are on leave. Service members should also be able to have family members care for them if they are recovering from a serious illness or injury sustained in the line of duty.

It is unfortunate that in the rush to pass the law, lawmakers did not take time to think through when the law should apply. Quite frankly, the brave men and women in our armed forces, their family members and employers such as you deserve better.

Here is what we do know. These new leave provisions are set out in amendments to the Family Medical Leave Act (FMLA). To qualify, employers must meet the general FMLA requirements and whatever new regulations are adopted.

There are, however, important differences between traditional FMLA leave and these new provisions. Employees that qualify for injured service member leave are entitled to a one-time combined total of 26 weeks of leave in a 12 month period. This is different than the usual 12 weeks of FMLA leave. The service member’s next of kin is entitled to take injured service member family leave. This is too different than the traditional FMLA qualification. Also, the term “serious injury or illness” is different than regular FMLA leave’s “serious health condition.” What different requirements do these separate definitions impose? No one knows. Hopefully, the regulations, once issued, will tell us.

Until the regulations are issued, you are required to do your best in complying with the leave requirements. If an employee requests one of these new types of leave, consult with an attorney to advise you on any recent decisions or regulations and to guide you through the process.

Alan Thayer
Business Attorney
 

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