Hammersley Stone - AGC of Wisconsin

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Tom Godar Whyte Hirschboeck Dudek, S.C. In almost all cases, these changes will require employers to review and redraft their policies regarding Family and Medical Leave. 24 Wisconsin Constructor / Issue 1 • 2008 HUMAN RESOURCES Employment Developments: Expansion of the FMLA to Those Serving in the Military For the first time since passage of the FMLA in 1993, a significant expansion of this law has occurred. Congress passed, and on January 28, 2008 President Bush signed the National Defense Authorization Act (“NDAA”). The NDAA requires employers to provide 12 weeks of FMLA leave to immediate family members of reservists or members of the National Guard who are called to serve in active duty. This new law would also require employers to offer up to 26 weeks of unpaid leave to employees who must provide care for family members wounded while serving in the military. Injured Service Member The NDAA would apply not only to spouses, children and parents, but also to the next of kin (defined as the “nearest blood relative of that individual”) of a service member injured in the line of duty. The new law provides coverage for those who are defined as a “member of the Armed Forces, including a member of the National Guard or our reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise an outpatient status, or is otherwise on temporary disability retired list for a serious injury or illness.” Such “serious injury or illness” must have occurred in the line of duty and while on active duty in the Armed Forces. Family Member Leave The other explanation under the FMLA provides that employees may be eligible for up to 12 weeks of leave when a son or daughter, a spouse, or a parent of an employee has been called to active duty. In order for this eligibility to occur, the Secretary of Defense must determine that the military operation is a “contingency operation,” which normally means preparing to engage in hostile or defensive activities on behalf of the United States. The definition of “qualifying exigency,” that would allow an employee who is a parent or spouse or child of a service member to take time off, has not yet been defined. It is important to know that in both cases, the leave time is combined with other leave time eligible in a one-year period, and not expanding the leave pool by 26 or 12 weeks. While the NDAA does offer some insights as to how this law will be applied, there clearly needs to be additional regulation to fill out an employ-
er’s obligations. For instance, an employer may ask an employee to provide a certificate from the healthcare provider offering support to the service member’s health condition when the service member is injured in the line of duty. However, when a leave is related to a qualifying contingency, the certification that the employer may require has been left for the Secretary of the Department of Labor to create. The effective date for the provisions pertaining to employees taking off up to 26 weeks to care for an injured service member is January 28, 2008 according to the DOL, as that is the day the President signed the measure. However, the DOL has suggested that provisions regarding the 12 week leave for a “qualifying exigency” will not go into effect until regulations defining such qualifying exigency are completed by the DOL. However, employers are asked to comply with this law in “good faith.” Of course, officials with the Department of Labor will now take time to draft regulations implementing these changes. In almost all cases, these changes will require employers to review and redraft their policies regarding Family and Medical Leave so long as they are otherwise obligated to comply with the law which affects employers of 50 employees or more. Legislative as well as judicial developments affect all employers, including those in the long-term care arena. Look to the AGC and counsel to help you keep abreast of the changes in the employment arena. ■ Thomas Godar is a shareholder at Whyte Hirschboeck Dudek’s Madison office, and is part of the firm’s construction group. During his twenty-five years of private practice, Mr. Godar has worked with a variety of construction companies, from road builders and large residential developers to small and large general and specialty contractors. Mr. Godar provides counsel on labor and employment issues, but also advises clients on pre-litigation matters, lien law questions and commercial disputes. Whyte Hirschboeck Dudek has been an Associate Member of the AGC of Wisconsin since 2004. Wisconsin Constructor / Issue 1 • 2008 25
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