On January 28, 2008, President Bush signed into law the National Defense Authorization Act of 2008 (“NDAA”). The NDAA expands the categories of protected leave under the Family and Medical Leave Act (“FMLA”) by requiring employers to grant eligible employees leave (1) to care for covered service members or (2) because of any qualifying exigency arising out of the fact that a covered family member is on active duty or has been notified of an impending call to active duty status. A covered service member is 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.”
As of yet, the Department of Labor (“DOL”) has issued no proposed regulations to implement leave on the basis of a qualifying exigency. The NDAA implies that the provision mandating leave for a qualifying exigency will not become effective until the DOL issues regulations defining “qualifying exigency.” The DOL has expressly stated that “this provision of the NDAA is not effective until the Secretary of Labor issues final regulations defining ‘any qualifying exigency.’” The DOL has requested comments from the public by April 11, 2008 as to how it should define a “qualifying exigency.” In the meantime, it is “expeditiously” preparing such regulations. The DOL’s “initial view,” which may change before issuance of final regulations, is that “there must be some nexus between the eligible employee’s need for leave and the service member’s active duty status” and that “qualifying exigencies should be limited to non-medical related exigencies.”
In the meantime, employers may be uncertain whether they must provide leave for a qualifying exigency. On its web site, DOL “encourages employers to provide this type of leave to qualifying employees.” During this period of regulatory uncertainty, granting leave liberally to any employee who requests leave on the basis of a “qualifying exigency” will help employers avoid liability if a qualifying exigency is later determined to have existed.
The request for comments, along with proposed changes to current DOL regulations, can be found on the DOL website.