As Bush recently signed into law the National Defense Authorization Act, effectively expanding FMLA to give additional coverage to military personnel and their families, employers are already scratching their heads as to how this will affect the administration of additional leave requirements.

This, the first federal expansion of FMLA since its inception in 1993, has a few points of potential confusion:

  • There will be a period in which employers are expected to comply before all the regulations are finalized – some kinks in the legislation still are being ironed out.
  • There will be questions about "next of kin" language, as the law allows 26 weeks off for certain family members of an injured service person. Employers are often faced with gray areas when it comes to FMLA definitions, and this is a new ambiguity to contend with.
  • There will be questions related to the "any qualifying exigency" stipulation in the new law, which essentially allows the service member's next of kin to have up to 12 weeks off to spend time with him or her before a significant call up. The terms of this exigency will be defined by the Department of Labor in the coming weeks or months.

The new law has several immediate implications for employers:

  • Organizations must work to comply now. The new act was effective when signed into law Jan. 28. Compliance will mean staying up to the minute on clarifications and updated regulations within the new law as they become available.
  • Employers will need to develop new correspondence and certification documents to handle the additional categories of leave. Employers also should revise their corporate policy to reflect the new law and to document procedures so that all requests for leave are processed consistently. This is especially important for protecting against liability in light of the new law's current ambiguities.
  • Employers will need to stay up to date on how to request certification of leave and how much notification should be required for foreseeable leave in the case of a military exigency.
  • Employers, when presented with an FMLA leave request related to a military injury or exigency, should accept the information, investigate the grounds for the request and ask for expert help if questions arise.

Some 38 percent of employers have reported an increase in FMLA absences and 18 percent now outsource FMLA administration, according to a Mercer/Marsh survey in 2006. For virtually any employer with 50 or more employees, FMLA will continue to be a challenge. For brokers and consultants, the ever-complex nature of FMLA presents an opportunity. You can demonstrate your consultative value by helping clients find solutions to FMLA administration, as employers are increasingly looking to outsource this function.

Jim Brown is vice president of FMLASource Inc., an affiliate of ComPsych Corp. He oversees the company's absence management operations, helping both Fortune 500 and small corporations manage FMLA and other employee absences.

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