Employers frustrated by the passage of the National Defense Authorization Act (NDAA) in January 2008 and its lack of critical definitions and terms will be relieved to know that the Department of Labor (DOL) has clarified its position on the effective date of the recent amendments. The amendments created a new reason for leave under certain "qualifying exigencies" and created an entirely new form of leave, "Servicemember Family Leave." The portion of the NDAA allowing leave due to qualifying exigencies is not effective until the DOL issues final regulations defining the scope of the leave. In contrast, the provisions creating Servicemember Family Leave were effective January 28, 2008.

The DOL issued a notice of rulemaking on February 11, 2008, seeking comment on the service-related portions of the FMLA. The comment period closes April 11, 2008, and the DOL has indicated that it hopes to issue final regulations soon thereafter. In the interim, the DOL is encouraging employers to begin granting leave for "qualifying exigencies." Employers who choose not to implement this form of leave until publication of the final regulations must nevertheless continue to comply with applicable state laws (including Indiana's) providing for military family leave.

In addition to reviewing their existing FMLA policies and procedures, employers should also provide notice to employees of the changes to the law. The DOL has created a sample notice that is available at  http://www.dol.gov/esa/whd/fmla/NDAAAmndmnts.pdf, although employers should tailor this example based on their own circumstances.