Legal Ease/School Law Notes: Military family leave expanded: What board members need to know
By R. Craig Wood
Our military service men and women risk their lives to preserve our freedoms and protect our way of life.
In recognition of the sacrifices they and their families make on our behalf, Congress passed legislation -- signed into law by President Bush in January -- to expand military families’ rights under the Family and Medical Leave Act (FMLA).
FMLA grants eligible employees 12 weeks of leave in a 12-month period for serious illness, the serious illness of a family member, or the birth or adoption of a child.
The newly enacted National Defense Authorization Act amends the FMLA to provide eligible employees two important new leave rights.
Eligible employees now are entitled to 12 weeks of leave due to “any qualifying exigency” arising out of the fact that the employee’s spouse, son or daughter, or parent is on active duty or has been notified that he or she is about to be called to active duty.
What constitutes a “qualifying exigency” has not yet been defined by the Department of Labor, but the coverage surely will be much broader than the conditions previously covered by the FMLA. Activities such as making financial and legal arrangements for the service member, locating or providing childcare, attending ceremonies, and participating in counseling would all likely constitute qualifying exigencies.
Until the federal government issues regulations, school districts would be well advised to grant leave liberally to family members of service men and women who claim they are in need of such leave to support their military family member.
The new law also addresses relatives of service members who are injured or become seriously ill.
An eligible employee who is the spouse, son or daughter, parent, or next of kin of a service member who is recovering from a serious illness or injury sustained while on active duty is entitled to up to 26 weeks of leave to care for the service member.
This provision greatly broadens the FMLA in several ways. It adds “next of kin” to the list of eligible employees. It defines next of kin as the nearest blood relative of the individual, so it could include an aunt, uncle, or cousin.
It broadly defines illness or injury to include anything that renders the service member unable to perform his or her active duty requirements. And it expands the traditional three months of leave to six months.
There are, of course, times that both the first and second types of leave could occur in the same year. The law limits the total leave eligibility to 26 weeks in a 12-month period, so an employee would not be able to add 12 weeks of exigent circumstance leave to 26 weeks of injury recovery leave.
School board members and administrators must become familiar with these new legal requirements. Relying on past practices will result in violations of the expanded new FMLA.
The new law gives us the opportunity to support the families who sacrifice so much by sending their children or spouses into harm’s way for our benefit.
R. Craig Wood is managing partner of the Charlottesville, Va., office of the law firm McGuire Woods LLP, and is a member of the board of directors of NSBA’s Council of School Attorneys.
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