On Jan. 28, 2008, President Bush signed into law the National Defense Authorization Act (the “NDAA”). The NDAA amends the Family and Medical Leave Act of 1993 ( “FMLA”) to permit a spouse, child, parent or other next-of-kin to take up to 26 weeks of leave to care for a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment or is otherwise on the temporary disability retired list for a serious injury or illness. The provisions of the NDAA providing this additional leave became effective Jan. 28, 2008, and will require employers to modify the administration of their benefit plans immediately.

In addition to permitting FMLA leave to care for disabled next-of-kin in the Armed Forces, the NDAA permits an employee to take FMLA leave for any “qualifying exigency” that occurs because of a spouse, child or parent being placed on active duty or notified of a call to active duty. This provision of NDAA is not effective until the Secretary of Labor issues final regulations defining “qualifying exigency.” On Feb. 11, 2008, the Department of Labor (“DOL”) issued proposed regulations under the FMLA, which include guidance regarding the definition of qualifying exigency. The regulations are expected to become finalized later this year, but the DOL is encouraging employers to rely on the proposed regulations in the interim.

We recommend that employers take immediate action to bring their benefit plans into compliance with the requirements of the NDAA. Employers should update plan documents and communications, as well as systems and processes used to administer leaves under the FMLA, and benefits provided during and after such leaves. Employers should also begin planning how to implement the new rules regarding qualifying exigency leaves under their benefit plans.