President Bush has signed legislation amending the Family and Medical Leave Act of 1993 (FMLA) to provide FMLA leave to primary caregivers of service members with combat-related injuries.
The new law defines a “combat-related injury” as an injury or serious illness that was incurred (as determined under criteria prescribed by the Secretary of Defense) either,
– As a direct result of armed conflict;
– While an individual was engaged in hazardous service;
– In the performance of duty under conditions simulating war; or
– Through an instrumentality of war.
The term “service member” includes only a member of the Armed Forces.
Under this Amendment, an eligible employee who is the primary caregiver for a service member with a combat-related injury is entitled to a total of 26 work-weeks of leave during any twelve-month period to care for the service member.
This Amendment adds a new category of leave to the FMLA. However, it does not expand coverage under the Act. In other words, if an employer is not covered under the current Federal FMLA, this Amendment will not apply to such an employer.
The Amendment also permits employers to require the employee to take unused vacation or sick time in connection with any such leave. In addition, like all other types of leaves permitted by the FMLA, it allows employers to require certification of entitlement to this new category of leave.
Employers should be familiar with the types of certification which can and should be required with respect to various categories of leaves available under FMLA. For this new category of leave, it is important to note that the leave is not available simply because a family member has returned from the military. The individual must have a combat-related injury before a caregiver can qualify for this type of leave. Also, this leave only applies to service members; it would not, for example, apply to employees who are injured while working for contractors in Iraq; nor would it apply to an individual who had a non-combat-related injury while in the military.