On January 28, 2008, President Bush signed the National Defense Authorization Act for FY 2008, Pub. L. 110-181, which contained provisions expanding the leave available to certain family members of an individual in the Armed Forces under the Family and Medical Leave Act of 1993 (FMLA).

Leave to care for injured service-member

Under the new law, employers must provide up to 26 workweeks of leave to a qualifying employee 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.” A qualifying employee includes the “spouse, son, daughter, parent, or next of kin” of the service-member. This leave may be taken intermittently or on a reduced leave schedule when medically necessary.

An employer may require the employee to substitute any accrued paid vacation leave, PTO, family leave, or medical or sick leave for any part of the 26-week period. An employer is not required to provide paid sick leave or paid medical leave in any situation in which the employer would not normally provide such leave.

Leave to spend time with family member called to or on leave from active duty

This provision requires employers to provide leave for “any qualifying exigency…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.” “Any qualifying exigency,” has not been defined, however, it is generally understood to include a service-member’s deployment and leave from active duty. When such leave is foreseeable, the employer may require an employee to provide reasonable and practical notice to the employer.

This provision is not effective until the Secretary of Labor issues final regulations defining “any qualifying exigency,” however, employers are encouraged to provide leave to qualifying employees to spend time with a family member prior to deployment or on leave from active duty.

General Provisions

These amendments do not affect the majority of FMLA provisions, including those addressing employer coverage, employee eligibility requirements, health insurance continuation, and reinstatement rights.

An employer who employs both a husband and a wife entitled to either type of leave described above, may aggregate the husband and wife’s leave.

An employer may require that a request for leave be supported by a certification 1) issued by the health care provider of the eligible employee or of the son, daughter, spouse, or parent of the employee, or of the next of kin of an individual, in the case of leave taken to care for a service member; or 2) issued at such time and in such manner as the Secretary of Labor may by regulation prescribe, in the case of leave taken for any qualifying exigency.

In response to these amendments, employers should:

1) Amend their FMLA policies to provide employees with leave required by the amended FMLA, and

2) Notify employees of these new leave entitlements.