Alert: FMLA Expansion Inches Closer with House Passage of Revised Defense Spending Bill

By a vote of 369 to 46, the U.S. House of Representatives on Wednesday, January 16, 2008, passed a revised military spending bill that includes the first major expansion of the Family and Medical Leave Act in 14 years. 

The legislation creates two new forms of FMLA leave.  An eligible employee may take up to 12 weeks of FMLA leave because of a "qualifying exigency" arising out of the fact that the employee is on or has been called to active duty in the Armed Forces.  The Department of Labor is left to determine what constitutes a "qualifying contingency."

An eligible employee who is the primary care giver of an service-member with a combat-related "serious injury or illness" may also take up to 26 weeks of FMLA leave in a single 12-month leave year to care for the injured service-member.  The restriction to a single leave year limits this type of leave to a one-time use.  A "serious illness or injury" is independently defined as an injury or illness incurred in the line of duty that may render the member medically unfit to perform their duties.  This may be very different than how a "serious health condition" is currently defined. 

Interestingly, the legislation also creates a new category of eligible employee entitled to FMLA leave to care for an injured service-member.  In addition to spouse, son, daughter, or parent, the legislation permits someone who is the "next of kin" to take FMLA leave for this purpose.  Next of kin is defined as the nearest blood relative to the service member.  And you thought the FMLA could not get any more complicated!   

As you may recall from earlier posts, President Bush surprised lawmakers by vetoing the bill because of a provision unrelated to the FMLA that allowed American victims of state-sponsored terrorism under Saddam Hussein to sue for civil damages.  Fearing the seizure of assets, the Iraqi government pressured President Bush to veto the legislation.  The House revised the legislation by deleting the offending language.

According to an article by David M. Herszenhorn in the Thursday, January 17, 2008 edition of the  New York Times, the Senate is expected to approve the revised bill next week.  President Bush is expected to sign the legislation.   

Comment: Expansion of the FMLA may be law by the end of the month.  Presumably, the Department of Labor will issue provisional implementing regulations in short order soon thereafter.