The Family and Medical Leave Act of 1993 (“FMLA”) is a federal law that requires employers to grant unpaid leave to employees under certain circumstances. Since 1993, the FMLA has required covered employers to grant eligible employees up to twelve weeks of unpaid leave during any twelve-month period for the birth or care of the employee’s newborn child; for the placement of a child with the employee for adoption or foster care; to care for a spouse, child, or parent with a serious health condition; or for the employee’s own serious health condition. On December 14, 2007, Congress amended the FMLA to add two new reasons for taking unpaid leave and to greatly expand the amount of leave available to employees under one of those new reasons.

The New FMLA Provisions

Under the amendments, employers must grant eligible employees up to twelve weeks of unpaid leave during any twelve-month period “[b]ecause of any qualifying exigency” arising from the employee’s spouse, child, or parent being on active duty or ordered to active duty in the armed forces. The amendments direct the Secretary of Labor to issue regulations defining what a “qualifying exigency” is. Although it may take a substantial amount of time for the Secretary of Labor to implement the necessary regulations, Congressional leaders are working with the Department of Labor to have unofficial guidance on the meaning a “qualifying exigency” issued as soon as possible after the amendments are signed into law.

Additionally, the amendments provide that employers must grant eligible employees up to twenty-six weeks of unpaid leave to care for a wounded service member. Under this provision, the service member must be the employee’s spouse, child, or parent, or the employee must be the service member’s next of kin. Employees are entitled to only one twenty-six week leave period to care for a wounded service member (that is, the right does not renew once a new twelve-month period begins), and although the leave may be taken on an intermittent or reduced-schedule basis, all of the twenty-six weeks of leave must be used during a single twelve-month period.

Practical Implications 

The FMLA amendments, included in the National Defense Authorization Act for Fiscal Year 2008, now move to the White House for President Bush’s approval. President Bush is expected to sign the legislation, perhaps before Christmas. The National Defense Authorization Act for Fiscal Year 2008 does not stipulate an effective date. Thus, the bill, including the FMLA amendments, will probably become law as soon as President Bush signs it. Because employers may face requests for leave under the new FMLA provisions in the very near future, employers need to be aware of the new requirements and be ready to comply with the changes as soon as possible. Once President Bush signs the bill, employers will need to revise their policies to include the new types of leave protected by the FMLA.