Labor & Employment Law

Although the amendments take effect immediately, the law does not define what is considered a ?qualifying exigency.? The Department of Labor will issue regulations defining the threshold of what be considered a ?qualifying exigency? and the level of certification that can be requested by an employer. At present, the "any qualifying exigency" basis for leave is not effective until those regulations are issued by the Department of Labor. In the interim, the Department "encourages employers to provide this type of leave to qualifying employees." Plain english: employers should tread lightly in this area. Until regulations are promulgated, the safe bet is for employers to treat any significant upheaval to the employee that is related to a family member?s active duty or call to active as a ?qualifying exigency.?

These amendments also allow an employee to take up 26 weeks off to care for a spouse, child, parent, or next of kin that is a ?member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.? This 26 week service member leave includes the twelve weeks of FMLA the employee would otherwise be entitled to during the year and is not in addition to the 12 weeks allowed under the FMLA.

We will keep you posted on this issue as soon as the Department of Labor issues its regulations.

Nothing in this Blog should be considered legal advice or to form an attorney-client relationship. The observations given are general in nature and should not be relied on for specific legal circumstances. Nothing can substitute for the advice of seasoned legal counsel who can address the application of the law to your specific matter.