On January 28, 2008, President Bush
signed into law the National Defense Authorization Act for 2008, which
amended the Family and Medical Leave Act (“FMLA”) to include two new
types of FMLA leave for the families of individuals serving in the
military. Except as noted below, the amendments took effect immediately
upon the President’s signature.
The FMLA, as amended, now permits a spouse, son, daughter, parent or
“next of kin” to take up to 26 weeks of leave to care for a member of
the Armed Forces, including a member of the National Guard or Reserves,
who is “undergoing medical treatment, recuperation or therapy, is
otherwise in outpatient status, or is otherwise on the temporary
disability retired list, for a serious injury or illness.” “Next of kin”
is defined for purposes of this provision to mean the nearest blood
relative of an individual. “Serious injury or illness,” for purposes of
this provision, is defined as “an injury or illness incurred by the
member in line of duty on active duty in the Armed Forces that may
render the member medically unfit to perform the duties of the member’s
office, grade, rank or rating.”
The FMLA, as amended, now also permits an employee to take up to 12
weeks of FMLA leave for “any qualifying exigency [to be defined by the
Secretary of Labor by regulation] arising out of the fact that the
spouse, or a son, daughter or parent of the employee is on active duty
(or has been notified of an impending call or order to active duty) in
the Armed Forces in support of a contingency operation.” The Department
of Labor has interpreted this provision to mean that it will not be
effective until the Secretary of Labor issues final regulations defining
the term “qualifying exigency.” The website of the Department of Labor
states that the agency is “expeditiously preparing such regulations.”
Like other provisions of the FMLA, the new law includes provisions
supporting the employer’s right to require certification in support of
the leave and advance notice where practicable. Also, employees must
meet the general requirements of eligibility for FMLA leave in order to
qualify for either of the newly created leaves.
Our recommendation:
Employers covered by the FMLA should immediately update their FMLA
policies to include these new bases for FMLA leave. Additionally, if you
have an employee handbook, it should be amended to include the new
provisions as well.
If you have any questions, please contact us.
Disclaimer: The materials contained in this advisory are for
informational purposes only. Nothing in this advisory should be
construed as legal advice or opinion. It is important that you consult
an experienced attorney concerning your particular factual situation. Do
not rely solely on this information.
