HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Saturday, November 15, 2008

Rule Allows More Time Off For Families of Injured Troops

The Washington Post reports that the Labor Department released a new regulation yesterday allowing workers to take up to 26 weeks off each year to care for family members seriously injured in the military.  Michael A. Fletcher writes,

CalendarThe new rule grew out of a recommendation by the President's Commission on Care for America's Returning Wounded Warriors that was incorporated into legislation signed into law in January. The change will also allow relatives of active-duty National Guard members and military reservists to take off for up to 12 weeks to look after their affairs.

"We made sure we were as generous as we could be on this leave," said Victoria Lipnic, an assistant secretary of labor.

While they generally applauded the new leave provisions for military families, labor and family advocates were critical of other changes to the law, including rules on how employees must notify their bosses that they are taking leave.

The liberalized military leave entitlements are part of a series of modifications to the 15-year-old Family and Medical Leave Act that have been finalized by the Labor Department. The changes come after a nearly two-year review in which the department received more than 20,000 comments from worker advocates and employers. The rules will go into effect 60 days after their official publication on Monday.

"Everybody knew this was coming," said David W. James, a Labor Department spokesman. "There is no way it can be confabulated into being a last-minute regulatory change" by the outgoing Bush administration.

The changes also include a new requirement that workers notify employers before they miss work to care for family members or tend to their own health concerns. Currently, department officials say, the act is interpreted to allow people to take off and inform their employers as many as two days after the fact -- a provision that was protested by business owners.

"Lack of advance notice for unscheduled absences is one of the biggest disruptions employers point to as an unintended consequence of the current regulations," the department said in a fact sheet.

Also under the new rules, a worker with a chronic health condition is required to certify doctor visits at least twice a year for that condition.

The Family and Medical Leave Act allows workers to take up to 12 weeks of unpaid leave to care for family members or to recover from their own medical conditions. The act guarantees the leave and a continuation of health benefits, allowing workers to deal with family emergencies without risking losing their jobs.

Since the law's enactment, workers have used it 100 million times, according to family advocates, who had wanted changes that would make it easier for employees to take off under the law.

"The new FMLA regulations for workers take us in the wrong direction and are harmful and unnecessary," said Debra L. Ness, president of the National Partnership for Women & Families. "They will restrict access to protections that workers have relied on for 15 years."

AFL-CIO President John Sweeney also was critical of the changes to the law for nonmilitary workers. "Given the worsening economic situation facing families, we should be talking about how to expand successful laws like the FMLA to provide workers more job security and flexibility to deal with urgent family situations, not less," he said.

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