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NAW News

Family and Medical Leave Act

Legislative Issue Update - June 2008

[updated June 2008]

With passage of the National Defense Authorization Act the 110th Congress provided the first legislative expansion of the Family and Medical Leave Act (FMLA) since its enactment in 1993, the expansion applying to military families as follows:

  • 12 weeks of FMLA leave may be taken when a spouse, son, daughter or parent who is on active duty has been notified of an impending call or order to active duty in the Armed Forces in support of a contingency operation.
  • A spouse, son, daughter, parent or nearest blood relative may take 26 weeks of unpaid leave during a single 12-month period to care for a recovering service member; i.e., a member of the Armed Forces who suffered an injury or illness while on active duty that may render the person unable to perform the duties of the member’s office, grade, rank or rating.

Regulations are needed to fully implement this expansion of the FMLA, however, employers should consider these provisions to have become effective when the law was enacted (January 28, 2008).

The Department of Labor (DoL) is working to finalize regulations implementing this expansion of FMLA in conjunction with its rulemaking to update existing FMLA regulations. NAW submitted comments in this rulemaking as did the National Coalition to Protect Family Leave (NCPFL) of which NAW is a member. While far from perfect, NAW applauded DoL’s proposed regulations “which will move FMLA implementation toward the Department’s stated goal ‘to improve communication between workers, employers, and healthcare providers … provide needed clarity for both workers and employers about the law’s coverage … (and) reduce uncertainty in the workplace for everyone’.” We are hopeful and optimistic that this positive regulatory initiative will result in a final rule before the 2008 elections.

The House of Representatives has passed legislation to liberalize the application of FMLA’s hours-of-service eligibility requirement to airline crew members. The bill (H.R. 2744) is pending in the Senate Health, Education, Labor, and Pensions (HELP) Committee along with a similar Senate bill (S. 2059, Clinton, D-NY and 28 cosponsors). On June 19, the House passed H.R. 5781, Federal Employees Paid Parental Leave Act of 2008 (Maloney, D-NY) on which the Bush Administration has issued a veto threat. This bill is pending in the Senate Homeland Security and Governmental Affairs Committee.

Several other pieces of legislation have been introduced in both houses of Congress to expand the FMLA. Some of the suggested expansions include:

  • Covering part-time employees.
  • Covering employees of smaller employers.
  • Adding circumstances or events that qualify for FMLA leave.
  • Providing paid leave.

Other leave-related measures that bear mention (although not expansions of FMLA) include S. 910 (Kennedy (D-MA) and 24 cosponsors)/H.R. 1542 (DeLauro (D-CT) and 92 cosponsors) to mandate that employers of 15 or more employees provide seven days of paid sick leave. S. 910 is pending in the Senate HELP Committee, while H.R. 1542 has been referred to the House Committees on Education and Labor, Oversight and Government Reform, and House Administration.