On Monday, President Bush signed into law a bill that extends coverage of the Family and Medical Leave Act ("FMLA") to family members of U.S. service members. In some cases, family members may be able to take up to 26 weeks of leave. In other cases, the leave may extend beyond the traditional definition of family members to include "next of kin."

The new law provides coverage to family members of U.S. service members in two situations: (1) to employees who face certain "exigencies" arising from a family member's active military duty or call to active duty, and (2) to employees who are caring for a wounded service member.

This FMLA expansion is part of the National Defense Authorization Act of 2008, which was quickly resurrected and passed by Congress after President Bush vetoed a similar bill in December based on the White House's concern over a provision in the defense act that was unrelated to the FMLA expansion.

FMLA Leave For "Exigencies" Related To Active Duty Of U.S. Service Members

An employee may now be entitled to FMLA leave because of a "qualifying exigency" arising out of the fact that the employee's spouse, child, or parent is on active duty or has been notified of an impending call or order to active duty in the U.S. armed forces. Such employees are eligible for the same twelve weeks of leave per rolling twelve-month period that is currently available under the FMLA for serious health conditions.

Congress did not define what is a "qualifying exigency," instead leaving it up to the Department of Labor to issue regulations specifying what events will qualify. For the first time, however, Congress appears to have extended FMLA coverage to situations that are not necessarily related to medical conditions or the birth or adoption of a child.

The Department of Labor is believed to have sent proposed regulations defining "qualifying exigency" to the White House for approval, as part of a larger proposal to amend the FMLA's regulations in order to clear up uncertainty and reduce FMLA abuse. The proposed new regulations will not be made public for weeks or possibly months. Until they are finalized, exactly what situations will trigger an entitlement to leave will remain unclear, and the new law's broad terms should be construed loosely.

Where the need for leave due to the active duty of a family member is foreseeable, the employee must provide such notice to the employer as is reasonable and practical under the circumstances. The new law also allows the employer to require certification of the need for leave, but has left it to the Department of Labor to determine what type of certification employers can require.

FMLA Leave To Care For Injured Or Ill U.S. Service Members

An employee may now be entitled to up to twenty-six weeks of FMLA leave to care for an injured or ill service member. This is the first time Congress has expanded FMLA leave beyond the traditional twelve weeks of leave. However, unlike traditional FMLA leave, which provides twelve weeks of leave in every rolling twelve-month period, the twenty-six week leave to care for an ill or injured service member is available only during a single twelve-month period. During that single twelve-month period, the employee's total amount of FMLA leave for any purpose may not exceed twenty-six weeks.

For an employee to qualify for this extended leave, the employee must be the spouse, child, parent, or—in another FMLA first—the "next of kin" of a service member who was injured or became ill in the line of duty and is undergoing medical treatment, recuperation, or therapy, or is otherwise on outpatient or temporary disability retired status. "Next of kin" is defined as the "nearest blood relative" of the service member.

These leaves apply to family members of service members in the U.S. Armed Forces, the National Guard, or the Reserves. Traditional FMLA notification and certification rules apply to leave to care for a service member. Employees may take both new types of FMLA leave as a single block of time off, or may take time off intermittently, under the same rules as traditional FMLA leave. Likewise, employers can require employees to substitute vacation, sick time, or other paid leave for the new types of leave, where paid leave would ordinarily apply to the time off.

Though the President has signed the bill into law, Congress did not provide an effective date for the extended FMLA provisions, and it is apparent that it will take time for the Department of Labor to promulgate final regulations filling in key gaps. Many commentators are nevertheless assuming that the law will be effective immediately. Employers should be aware of the new law and should begin to prepare for leave requests that could fall under its expanded coverage – this would include modifying existing FMLA policies to notify employees about the two new types of leave.