March 2008
FMLA LEAVE EXPANDED FOR FAMILIES OF ACTIVE
DUTY SOLDIERS
President Bush recently signed the National Defense
Authorization Act of 2008, which made two significant amendments to Family and Medical Leave Act ("FMLA") coverage for families of military personnel. In particular, these changes affect
(1) employees who become primary caregivers for a close relative soldier injured during active duty and need leave to care for that relative ("Care Leave") and
(2) employees whose close relative soldiers are on active duty or have been called to active duty and need leave to assist with family duties associated with that call up for active duty ("Duty Leave").
In This Issue
FMLA Leave Expanded for
Families of Active Duty Soldiers
Care Leave
Duty Leave
Other Recent Developments
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Employment Law Practice Group
Care Leave
Effective immediately, the statute provides that an eligible employee may take up to
26 weeks of FMLA leave to care for 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." Eligible employees include those who are the "spouse, son, daughter, parent or next of kin" of the soldier needing care.
This dramatic increase in available leave time - previously employers were only required to allow 12 weeks of leave - is triggered by need to care for a soldier who has suffered injury or illness in "the line of duty." Qualifying injuries and illnesses are not restricted to those suffered in combat and include non-combat illnesses that prevent a soldier from seeing to his or her regular duties. Because Care Leave only covers caregivers for soldiers on "active duty," caregivers for reservists injured during the performance of their usual reserve monthly or annual training duties are not covered by Care Leave. Regular FMLA leave may still apply in that situation, however.
Duty Leave
This part of the amendment does not change the standard FMLA 12-week leave allowance but instead adds a new category of person to whom it must be afforded.
When an employee's spouse, child or parent goes on active duty (or is informed of a call to active duty) and the employee thereby suffers what the statute calls a
"qualifying exigency," employers must allow the employee to take FMLA leave.

The statute does not define "qualifying exigency" and instead directs the
Department of Labor (the "DOL") to do so by regulation. For this reason, the Duty
Leave provision is not effective immediately and its scope will not be clear for some time. Employers may safely assume, however, that Duty Leave is intended to help employees who suffer complications associated with the call-up of a family member to active duty. This might include time off to make arrangements for child care and other family dislocation issues. Despite the fact that the Duty Leave provision is not immediately effective, the DOL is encouraging employers to provide this type of leave to employees in the period before it becomes official and employers would be wise to take these issues into consideration in allocating leave.
Given these significant changes, Kennedy Covington recommends that employers review and revise their FMLA policies and procedures to conform to the new law and consult counsel when employees request Care or Duty Leave.
Other Recent Developments
Compliance policies must be implemented. In a ruling issued on January 23, 2008, the U.S. Court of Appeals for the Fourth Circuit (which governs North Carolina and
South Carolina federal courts, among others) upheld an award of damages and punitive damages against an employer for failing to provide reasonable accommodations to a disabled worker. EEOC v. Fed. Express Corp., 513 F.3d 360,
2008 WL 186150 (4th Cir. 2008). The case provides a useful reminder that employers are not insulated from liability and punitive damages simply by virtue of having adopted an Americans with Disabilities Act compliance policy. Instead, employers must be able to show that employees and managers are trained on the policy, that they are encouraged to use it and that the company as a whole follows the policy in normal practice.
Employers must provide "reasonable," not "total," accommodation.
In a favorable decision for employers, the Fourth Circuit also recently determined that an employer must provide "reasonable" - not total - accommodation to employees who wish to observe religious holidays. EEOC v. Firestone Fibers & Textiles, Co., --- F.3d ---,
2008 WL 352103 (4th Cir. 2008). The employer did its best to accommodate the employee, a member of the Living Church of God, but the "extraordinary number of hours" requested for religious observances was simply unreasonable and impossible to accommodate under the employer's particular circumstances and under the rules of a Collective Bargaining Agreement. The court noted in particular that it was appropriate to consider the impact on the employer and on other employees when determining the reasonableness of an accommodation.
New Regulations Forthcoming.
On February 11, the DOL issued new proposed regulations under the FMLA, reorganizing - and attempting to address employer criticism of - the existing regulations. The new regulations will not be final for some time and are still subject to significant revision, but employers should expect new guidance from the DOL in the not too distant future concerning key FMLA topics, including required employee notice, medical certification, fitness-for-duty certification, designation of leave, substitution of paid leave, and voluntary settlements between employer and employees of prior FMLA violations. Kennedy
Covington will provide a full analysis of the new regulations as soon as they are finalized.

Kennedy Covington is one of the largest law firms in the Carolinas with offices in Charlotte,
Raleigh, Research Triangle Park, Columbia and Rock Hill. Our attorneys use their diverse experience and knowledge to counsel clients in varied industries such as banking and finance, real estate, technology, health care, manufacturing and the services sector. At Kennedy
Covington, we give more than a legal opinion; we provide a business perspective.
This newsletter is published as a service to clients and others interested in employment law issues. The information provided herein is general in nature and should not be relied upon as legal advice as to specific factual situations. Our employment law practice group welcomes your comments or inquiries about this newsletter or about any specific matters you may wish to discuss with us.
Employment Law Attorneys
Amie Flowers Carmack
Beverly A. Carroll
Andrew M. Habenicht
Glenn E. Ketner, III (Bo)
Felicia Washington Mauney
Daniel J. Palmieri
Russell F. Sizemore
Shannon S. Spainhour (Missy)
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