Family Medical Leave Act Expanded to Military Service

Family Medical Leave Act Expanded to Military Service

On January 28, 2008, President Bush signed into law the National Defense Authorization Act (NDAA) which amends the Family Medical Leave Act of 1993 (FMLA). The Department of Labor has requested immediate compliance. In general, FMLA applies to employers with 50 or more employees.

The FMLA leave provisions incorporated into the law are designed to provide assistance to service members and their families with some of the hardships that can result from military service. The two new categories of leave are –caregiver leave” and –active duty leave.”

Caregiver Leave

The NDAA amends the FMLA to permit an employee to take up to 26 workweeks of leave to care for a spouse, son, daughter, parent, or next of kin in the Armed Forces, including 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.

Employers may still implement FMLA procedures like requiring substitution of paid leave and notice, for example. The leave is on an intermittent basis, but is only available for use in a single 12 month period.

Active Duty Leave

The NDAA also permits an employee to take FMLA leave for –any qualifying exigency” (i.e. urgent circumstances) 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. The term –any qualifying exigency” has not yet been defined by the Secretary of Labor, and this provision will not be effective until definitive regulations are published. In the interim, the Department of Labor encourages employers to use good faith efforts to provide active duty leave to qualifying employees.

The Department of Labor has already begun drafting regulations to implement the new FMLA provisions. The Department is also expected to publish a number of proposed changes to FMLA, including defining what is considered a –serious health condition,” as well as more detailed information regarding the medical certification process and notice requirements.