On January 28, 2008, President George Bush signed into law an expansion of the benefits available to employees under the Family and Medical Leave Act of 1993 (FMLA). Since its enactment in 1993, the FMLA has required covered employers to grant eligible employees up to 12 weeks of unpaid leave during any 12-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. Under the new provisions, which were contained in the National Defense Authorization Act for FY 2008, Public Law 110-181, employers must also grant eligible employees leave for two additional qualifying events:
Up to 12 weeks of unpaid leave during any 12-month period "[b]ecause of any qualifying exigency" arising from the employee's spouse, child or parent being on active duty or having been notified of an impending call or order to active duty in the Armed Forces in support of a contingency operation. When the need for leave is foreseeable, the employee is to provide the employer notice as is reasonable and practicable. The term "qualifying exigency" is yet to be defined in regulations to be issued by the Secretary of Labor.
Up to 26 weeks of unpaid leave during any single 12-month period for a spouse, son, daughter, parent or nearest blood relative to care for a recovering service member (defined as an Armed Forces member who suffered an injury or illness in the line of duty while on active duty that may render the person unable to perform the duties of the member's office, grade, rank or rating). Unlike other types of FMLA leave, employees are entitled to only one leave period to care for a wounded service member; the right to caregiver leave for an injured service member does not renew when a new 12-month period begins. The caregiver leave must be combined with any other FMLA leave taken during the same 12-month period, for a combined total of 26 weeks.
Other FMLA provisions—including requirements for employer coverage and employee eligibility, health benefit continuation and reinstatement rights—remain unchanged and will apply to the new types of leave. Employees may take these leaves on an intermittent basis.
Pending issuance of implementing regulations, the U.S. Department of Labor (DOL) has released guidance indicating that the caregiver leave provision is effective as of January 28, 2008, and that employers should act in good faith to provide this leave. The guidance further states that the call to active duty family leave provision will not be effective until the Secretary of Labor issues final regulations defining "any qualifying exigency." In the interim, the DOL encourages employers to provide this type of leave to qualifying employees. The DOL's initial guidance can be found at www.dol.gov/esa/whd/fmla/NDAA_fmla.htm.
Covered employers will need to revise their policies to include the new types of leave protected by the FMLA, provide employee's with notice of the change, and remain alert for further guidance and implementing regulations from the DOL.