February 2, 2010

How new FMLA regulations affect military families

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Most of us know the Family and Medical Leave Act (FMLA) as the law that protects an employee's job if they need time off to care for a new child or an ailing spouse or parent. But the FMLA also applies to people who need to care for an injured or debilitated family member returning from active military duty. And as of January 16, 2010, the law extends to military families with a member who's about to be or is currently deployed.

For more details on when military families dealing with a deployment can take advantage of the FMLA -- and an idea of how employers are likely to respond to such requests for family leave -- I spoke with employment attorney Jay Zweig, a partner with national law firm Bryan Cave LLP.

First let's get the key details of the FMLA straight: The 12 weeks of protected leave the law allows for workers who qualify (26 weeks for families caring for an injured military member) are unpaid.

"That puts a hardship on both the employee and the employer," Zweig said. "The employee because most people can't afford to take unpaid time, and the employer because they have to hold open a position for months when they're already short staffed."

Then there's the matter of who qualifies under the law. If your company employs less than 50 workers in a 75-mile radius, the law doesn't apply to you. As Zweig noted, you can work for a national retail chain, but if your particular store only employs 25 people and there isn't another store for 100 miles, the law doesn't apply to you.

Military families who do qualify for FMLA leave can use it to help with everything from getting their financial, legal, and childcare affairs in order before a deployment to spending extra time with family upon returning from combat, Zweig said. And, he added, parents left behind by a deployment can take off the 12 allowable weeks of unpaid time intermittently -- for example, if they need to leave work early on occasion to pick up their kids from school and make them dinner.

We've all read about how discrimination against pregnant women and women on maternity leave is alive and well in the workplace, despite the existence of the FMLA and the Equal Employment Opportunity Commission (EEOC). So, I asked Zweig, how should military families with a deployed spouse, child, or parent expect employers to react if they make a legitimate request for FMLA leave?

Because this change in the law is so new, Zweig explained, there's not much information on how well employers are upholding it. That said, Zweig advises employers who receive FMLA leave requests from deployed military family members to "err on the side of granting the leave, as long as the employee's request appears legitimate." And, he reminds employers, "Most people are going to take the least amount of leave that they can because it's unpaid."

To learn more about the FMLA, see the U.S. Department of Labor Web site.

Michelle Goodman is the author of "My So-Called Freelance Life" and "The Anti 9-to-5 Guide." E-mail Michelle at mgoodman@nwjobs.com

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