DUFF , WHITE & TURNER, L.L.C.

Attorneys And Counselors At Law

SCHOOL LAW
"ISSUE OF THE MONTH"
March 2008

Family and Medical Leave Act Expanded To Cover
Family Members of Military Personnel

Congress passed the Family and Medical Leave Act (FMLA) in 1993 to assure that eligible employees could take up to 12 weeks of leave, during a designated 12-month period, for the birth or adoption of a child, the serious illness of a spouse, parent or child, and the employee's own serious health condition. On January 28, 2008, President Bush signed into law the 2008 National Defense Authorization Act (NDAA). One of the purposes of the 2008 NDAA is to amend the FMLA to expand its coverage to employees with family members in the military who are on active duty or who are being called up for active duty.

The amended FMLA will now allow for up to 12 weeks of leave during the employer's designated 12-month period for an employee whose spouse, son, daughter or parent is on active duty-or has been notified of an impending call to active duty-for any "exigency" situation. An employee who wishes to take leave for an exigency situation must provide notice to the employer as soon as is "reasonable and practicable" whenever the necessity for the leave is foreseeable. Additionally, an employee who is the spouse, son, daughter, parent, or next of kin of a service member who has been injured during military service will be entitled to a total of 26 weeks of leave during the designated 12-month period to care for the service member, provided the injury results in the service member being unable to perform his or her duties.

It also should be noted that employees taking leave either for an exigency situation and/or to care for a family member injured during military service will be entitled to a combined total of 26 weeks during a single 12-month period. For example, if an employee has taken 12 weeks of FMLA leave for an exigency situation, and then requests leave to care for an injured service member, the employee may only take another 14 weeks of leave, for a total of 26 weeks; the employee would not be eligible to take another full 26 weeks for the care of the injured service member during that 12-month period.

In light of these recent changes in the law, employers covered by the FMLA, including school districts, should revise their policies and administrative procedures. Revisions need to include the new categories of employees who are eligible for leave under the FMLA, the circumstances under which they may be eligible for leave, and the conditions that will apply to their leave. Because the U.S. Department of Labor has proposed changes to the FMLA regulations, districts may wish to wait until new FMLA regulations are finalized before revising their board policies and procedures. The new regulations are expected to clarify issues related to the amended FMLA, such as the definition of the term "exigency," as well as other general FMLA issues, such as those related to notice and medical verification requirements. The South Carolina School Boards Association has indicated that it will issue a revised sample policy and/or administrative rule to reflect the amendments to the FMLA once the regulation changes are finalized. In the meantime, the provisions of the amended FMLA will be applicable to district employees.

When making the necessary revisions to board policies and procedures, districts may want to take the opportunity to clarify other existing areas of confusion or concern. One such area relates to when FMLA will be triggered, particularly in cases where the need for the FMLA leave was not foreseeable and when the request for FMLA leave has not been initiated by the employee. Employers are authorized to tentatively designate leave as FMLA leave, and should do so in all cases where an employee has been absent for a designated period of time, usually anywhere from three to ten days. District policies and procedures should specify the procedures for designating FMLA leave in such cases, and for notifying the employee of their obligations at that point, to include the requirement that a physician's statement be provided. Policies and procedures also should clearly state the consequences for failing to comply with any of the policy requirements, including the submission of the physician's statement.

Another area of confusion relates to the concurrent use of sick leave and FMLA leave, in that many employers and employees are under the impression that FMLA leave is not to be initiated or utilized until all accrued sick leave has been exhausted. Such a practice is not required under the FMLA and is not recommended, particularly given that school district employees often have a large amount of accrued sick leave. State law protects a school district employee from termination until the employee has been absent for more than 90 consecutive days. However, an employer would be prevented from exercising the option to terminate after 90 consecutive days if the absent employee was eligible for and had not yet exhausted FMLA leave. Thus, policies and procedures should specify that employees will be required to use sick leave and FMLA leave concurrently.

A related issue that often arises concerns the duration of the approved FMLA leave. Because the FMLA provides that employees may take up to a specified number of weeks of FMLA leave, employers are under the impression that they must approve whatever amount of time the employee requests, provided it does not exceed the maximum amount of leave specified in the statute. Policies should clarify that FMLA leave need only be approved for the period of time warranted, based on the physician's statement. If the physician's statement does notadequately support the need for leave for the full amount of time requested, a shorter period of leave may be approved, subject to an extension of the leave at the conclusion of the approved period, provided further medical verification is submitted.

If you would like more information about the amended FMLA, or the necessary revisions to your policies and procedures, please feel free to contact us.