The National Defense Authorization Act of 2008, a $700 billion military spending bill, was recently signed into law by President Bush. Buried within the bill were dozens of modifications to the Family and Medical Leave Act of 1993 (“FMLA”) designed to create two new forms of FMLA leave. These two new forms of leave are intended to address the need for family members to provide care for wounded service members who are injured in the line of duty, and to provide leave from work to deal with non-medical obligations created by a family member’s call to active duty status. 

  • Service Member Medical Leave – A parent, spouse, child or the nearest blood relative of a soldier may take 26 weeks of leave to care for a soldier injured in the line of duty, while serving on active duty in the armed forces
  • Active Duty Exigency Leave – An employee make take 12 weeks of leave in the event that the employee’s spouse, child or parent is on active duty status or has received an order to active duty status, in support of a “contingency operation.”

Although these changes seem relatively straightforward, in practice, they are likely to prove much more complicated to administer.

Service Member Medical Leave – One of the most notable elements of the Service Member Medical Leave provisions is the amount of leave available—26 weeks—instead of the 12 weeks available for all other forms of FMLA leave. Although the injury or illness must be sustained in the line of duty, while on active duty status, it does not have to be sustained in combat or in a combat zone. Medical leave is available for the spouse, parent, child or next closest blood relative of an injured soldier. This is the only form of FMLA leave which grants rights to the “closest blood relative.” A child under the FMLA includes not only biological children, but also an adopted or foster child, stepchild or a child who has had a loco parentis relationship to the soldier. The current regulatory definition of a child under the FMLA regulations would exclude children age 18 or older, although it is not clear that Congress intended such a limitation to apply to the Service Member Medical Leave provisions. The new law limits the 26 weeks of leave for an injured soldier’s family member to one 12 month period. Although ambiguously drafted, it appears that this provision is intended to prevent an employee from taking an additional Service Member Medical Leave in subsequent leave years, unlike other forms of FMLA leave, which renew each year. The statutory language does not indicate whether an employee would be entitled to an additional Service Member Medical Leave after changing employers, or whether an additional medical leave would be available if a soldier suffered a combat injury in a subsequent deployment. Clarification of these issues likely will not occur until the Department of Labor (“DOL”) promulgates regulations. Other types of FMLA leave may not be combined with Service Member Medical Leave to exceed the 26 week limitation in a single 12-month period. Like other forms of FMLA medical leave, Service Member Medical Leave may be taken intermittently or on a reduced-schedule basis, if medically necessary for the soldier’s condition.

Active Duty Exigency Leave – A spouse, parent or child of a soldier is entitled to leave for a “qualifying exigency” if a soldier is called to active duty or is currently on active duty status in support of a contingency operation. Contingency operations include certain military operations so designated by the Secretary of Defense, including Operations Iraqi Freedom and Enduring Freedom (Afghanistan), as well as military operations which result in calls to active duty or retention on active duty status by authority of the President or Congress during times of emergency or natural disaster. As literally worded, the new leave entitlement does not require that the soldier actually be deployed overseas, as long as the soldier’s call to duty or active duty status is “in support of” a contingency operation. Congress provided absolutely no definition of what would constitute a “qualifying exigency.” Instead, Congress left the definition of such “exigency” to the Department of Labor to determine by regulation. Although no date for such regulatory rulemaking has been set, DOL officials have stated publicly that they anticipate that qualifying circumstances may include the making of child care arrangements, financial or legal preparations to address the soldier’s deployment, attending official ceremonies or programs and attending farewell or arrival events for the soldier or his or her unit. In an ironic twist, while this legislation would grant leave rights to family members prior to a soldier’s deployment, the new law does not provide any leave rights whatsoever for the soldier who is about to be deployed.

WHAT EMPLOYERS NEED TO DO NOW

Because Congress did not define the “qualifying exigency” circumstances under which Active Duty Exigency Leave should be available, that section of the law will not become effective until DOL has implemented regulations. DOL nevertheless encourages employers to voluntarily provide such leave in the interim, based on their own discretion. On the other hand, the provisions implementing medical leave for injured soldiers’ family members went into effect immediately when signed on January 28, 2008. As a result, employers must immediately start providing such leave and must amend their family leave policies promptly. The FMLA requires employers to have in place written FMLA leave policies which are contained in the employer’s handbook or are otherwise provided to each employee. In addition, DOL has issued a new posting which should be placed next to an employer’s existing FMLA poster. A copy of this new posting requirement is attached to this bulletin