Many employers may feel they are currently in a state of limbo with respect to their FMLA policies and obligations. As we reported on our Blog in January, the FMLA was amended on January 28, 2008 to include “any qualifying exigency” arising out of the fact that the spouse, son, daughter or parent of the employee is on active duty in the military or has been notified of an impending call to active duty status as an additionally qualifying reason for up to 12 weeks of leave. The amendment also created a new leave entitlement of up to 26 weeks of leave for an employee who is the spouse, son, daughter, parent or next of kin of a servicemember who is recovering from a serious illness or injury sustained in the line of duty on active duty. 

The military family leave amendment took effect immediately, but left some key issues arising from the new leave categories unresolved. For example, rather than defining what constitutes a “qualifying exigency,” the Congress directed the Department of Labor to define the term in regulations. The DOL is also expected to develop new forms that employees, employers and medical providers can use in reference to the new leave categories. As of today, the DOL has not yet issued even proposed regulations for the military family leave amendment, and the final regulations and military leave forms may still be months away. At the same time, employers also are waiting to see what the DOL will do with respect to the proposed changes to the original FMLA regulations that were released for public comment in February of this year.

Many employers may be waiting for the DOL to issue the new FMLA regulations before revising their policies to include the new military family leave categories. This seems reasonable, but has not been expressly endorsed by the DOL as an acceptable approach. Thus, employers may be acting at their own peril if they wait too long to amend their FMLA policies to incorporate the new leave categories and to address additional issues related to the FMLA amendment. One thing that all employers covered by the FMLA should do immediately if they have not already done so is to post the Notice that the DOL did issue that advises employees of their new rights to military family leave. A copy of that posting is attached hereto, and the Notice can be obtained directly from the DOL’s website. Posting of the DOL’s Military Family Leave Notice on employee bulletin boards where other employment law notices are posted is required by the FMLA. Moreover, by complying with this posting requirement, employers can say that they have informed employees of their new rights, albeit not as comprehensively as they will when they revise their employee handbook policies.