On January 29, 2008 President Bush signed the National Defense Authorization Act, which includes a provision amending the Family and Medical Leave Act for military families. Specifically, the amendments expand the leave available under the FMLA by adding two qualifying events related to an eligible employee who is a family member of a member of the Armed Forces: (1) increased leave to act as caregiver for a family member who is an injured member of the Armed Forces; and (2) increased leave for “qualifying exigencies” arising from a family member’s active duty military deployment.

Caregiver Leave for an Injured Service Member

A “covered servicemember” is “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” that occurred while on active-duty. Pursuant to the caregiver leave amendment:
 

“an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember shall be entitled to a total of 26 workweeks of leave during a 12-month period to care for the servicemember.”

These provisions are immediately effective. The Department of Labor states that it “is working quickly” to develop a more comprehensive guidance regarding employer and employee rights and responsibilities under the amendment. In the interim, DOL advises employers “to act in good faith in providing leave” and notes that “FMLA-type procedures” should be used as appropriate, such as “procedures regarding substitution of paid leave and notice”.

Family Leave Due to a Call to Active Duty

Pursuant to the active duty leave amendment, an eligible employee may take FMLA leave for “any qualifying exigency (as the Secretary [of Labor] shall, by regulation, determine) 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.”

Unlike with the caregiver leave amendment, the active duty provision is not effective until DOL promulgates final regulations defining “any qualifying exigency.” DOL states that it is “expeditiously preparing such regulations.” Until that happens, “DOL encourages employers to provide this type of leave to qualifying employees.”

FMLA Changes On The Horizon

Employers should also be on the look-out in the next few months for DOL to propose changes to its existing FMLA regulations. The proposed amendments are expected to, among other things, address intermittent leave and the definition of a “serious health condition.”

Team Bullard will continue to monitor developments in this area and to update you regularly. If you have any questions regarding the FMLA amendments, or any other labor, employment and benefits issues, we would be happy to help.