Employers should consider updating existing FMLA policies and any accompanying request forms to account for this new category of leave.

On January 28, 2008, President Bush signed into law the National Defense Authorization Act of 2008 (NDAA), which included two major amendments to the Family Medical Leave Act (FMLA) designed to help families of U.S. servicemembers. Prior to these amendments, the FMLA provided eligible employees with 12 weeks of unpaid leave in two circumstances: to care for a new baby or adopted child, or to care for the serious health condition of the employee or the employee’s immediate family member. The NDAA amendments have expanded the FMLA to provide protected leave for eligible employees who must care for a family member who was injured or became ill while serving in the Armed Forces, or who otherwise qualify for leave as a result of a family member being called up for duty.

Servicemember Family Leave

The first new category of leave is called “Servicemember Family Leave,” and employers who are covered by the FMLA are required to offer it to eligible employees as of January 28, 2008. Under this new category of leave, an eligible employee who is the spouse, son, daughter, parent or next of kin of a covered servicemember is entitled to a total of 26 workweeks of leave in a 12-month period to care for the covered servicemember. A “covered servicemember” is defined as “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.” To qualify, the serious illness or injury must be “incurred . . . in [the] line of duty on active duty.” In short, eligible employees are entitled to more than six months of FMLA leave to care for immediate family members who become ill or are injured in the line of duty. This is more than twice the amount of leave authorized under the other provisions of the FMLA.

Exigent Circumstances Leave

The second new category of leave is for eligible employees who have a “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.” The NDAA does not define “qualifying exigency” and instead calls for the U.S. Secretary of Labor to prepare regulations to define this new eligibility criterion. Until the regulations are published, employers are not required to grant leave under this new category. In the meantime, however, the U.S. Department of Labor is encouraging employers to voluntarily provide leave to eligible employees who present the kind of circumstances this category of leave is designed to address. An example of the kind of situation this new category of leave is likely cover is when a stay-at-home mom is called up for duty and a family member must take leave from work to care for the children.


In light of the new amendments, workplaces that are covered by the FMLA must provide “Servicemember Family Leave” to all eligible employees who request such leave as of January 28, 2008. In addition, employers should consider updating existing FMLA policies and any accompanying request forms to account for this new category of leave. At this point, it is unclear when the U.S. Secretary of Labor plans to publish the expected regulations, but as the situation develops, further guidance will be forthcoming.