On January 28, 2008, President Bush signed into law the National Defense Authorization Act for Fiscal Year 2008, which includes two major amendments to the Family and Medical Leave Act (“FMLA”).  The amendments expand the benefits of the FMLA to assist military members and their families.  The first amendment requires employers with fifty or more employees to provide up to twelve weeks of unpaid leave each year for a “qualifying exigency” related to an employee’s spouse, son, daughter, or parent who is on “active duty” or has been notified of an impending call to “active duty” (“Active Duty Leave”).  The second amendment entitles eligible family members to take 26 weeks of unpaid leave in a single year to care for a wounded spouse, son, daughter, parent or next of kin (“Caregiver Leave”).

Active Duty Leave

Prior to the amendment, employees eligible for FMLA could take up to twelve weeks of unpaid leave for the following reasons:

• the birth of a child and to care for such child;

• the placement of a child for adoption or foster care;

• caring for the spouse or an immediate family member with a “serious health condition”; and

• where an employee has a serious health condition such that they are unable to work.

The new amendment adds another reason:  An employee is entitled to FMLA because of any “qualifying exigency” arising out of the "active duty" of an employee’s spouse, son, daughter or parent, or when such person is notified of an impending call to duty.  Although the amendment does not define “qualifying exigency,” the Secretary of Labor has been directed to issue regulations to clarify the meaning of that term.  Whether a service member’s leave is related to exigency may, in fact, not be the same as a “serious health condition” as that term is otherwise defined in the FMLA.  Other key terms such as “covered service member,” “next of kin,” and “serious injury or  illness” are defined by the law.

Caregiver Leave

            The second new leave entitlement is “Caregiver Leave.”  Caregiver Leave is available only during a single twelve-month period and is available to an employee to care for a spouse, son, daughter, parent or next of kin of a “covered service member” who has a “serious illness or injury.”  A “covered service member” is a member of the Armed Forces who is:

• undergoing medical treatment, recuperation or therapy;

• in an outpatient status; or

• on the temporary disability retired list for a serious injury or illness.

A caregiver may take up to twenty-six weeks of FMLA during a single twelve-month period.  Key terms defined by the law are “covered service member,” “next of kin,” and “serious injury or illness.”

            The FMLA amendments contain other provisions for the new categories of FMLA-protected leave.  While the Department of Labor should begin working on regulations to assist employers with the implementation of these amendments, it will take some time before new DOL forms are created to address eligibility and certification relating to the new leave entitlements.

            Meanwhile, employers should amend their FMLA policies to reflect the expanded rights extended to military families. Further, if any employee requests leave in any way related to the employee’s military service or that of a family member, make sure you contact counsel before proceeding.

            For more information on this or other employment law issues, please contact Patti Weisberg or one of our other Employment lawyers