New amendments affecting the Family Medical Leave Act of 1993 (FMLA) that President Bush signed into law January 28th, 2008.

To keep you informed: Two new amendments that could affect your employees.

On January 28, 2008, President Bush signed into law some significant amendments to the Family and Medical Leave Act of 1993 (“FMLA”) that provide leave to the families of persons serving in the Armed Forces. Employees who qualify for this newly created military family leave may be entitled to a maximum of 26 weeks of unpaid leave rather than the 12 weeks of unpaid leave available under the other sections of the FMLA.

The Amendments create two new types of leave. The first allows the spouse, son, daughter, parent or next of kin of a covered service member to take leave to care for that individual. To qualify, the service member must suffer a serious illness or injury in the line of duty that renders him or her unfit to perform the duties of his or her office, grade, rank or rating. While the amendment does not define “line of duty,” the service member need not be wounded in combat. This type of leave became effective upon the President’s signature.

The second new type of leave is available due to “any qualifying exigency” that arises out of the fact that the spouse, son, daughter, or parent of an employee who is on active duty or has been notified of an impending call to active duty in the Armed Forces. This “call to duty” leave will become effective once the Department of Labor issues regulations to define the scope of the provision, the employees rights, and the employer’s obligations.

The amendments do not change the pre-existing portions of the FMLA. Employers with fewer than 50 employees who were exempt from the FMLA remain exempt. Likewise, employees that have worked for the employer for less than 12 months or less than 1,250 hours during the previous 12 month period qualify for neither the old nor new types of FMLA leave.

Finally, these amendments have no affect upon the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), which governs an employer’s obligations when one of its employees serves in the Armed Forces. Unlike the FMLA, all employers are subject to USERRA, no matter how small the business may be and no matter how long the service member has been an employee.

Employers subject to the FMLA should display a notice of these new types of leave where it posts the required federal and Ohio employment law disclosures. If you have an employee handbook, a brief memorandum amending the company’s FMLA policy should be distributed to all employees. Once the Department of Labor issues its final regulations, these notices will need to be revised to ensure that the employer is in full compliance with the law.

Should you have any questions regarding the Family Medical Leave Act, the new amendments or need assistance updating your company’s policy, please feel free to contact me, Scott T.  Stirling,  at 937-223-1130 or by email at sstirling@pselaw.com.