On Monday, January 28, 2008, President Bush signed into law H.R. 4986, the National Defense Authorization Act, thus ushering in the first amendments to the Family and Medical Leave Act (“FMLA”) since its passage in 1993. The bill creates two significant additions to the FMLA:

  • it expands the qualifying reasons for which an employee may obtain leave and
  • creates an entirely new form of leave — "Servicemember Family Leave."

Although the bill is silent on when the changes to the FMLA go into effect, the Department of Labor ("DOL") has announced that the amendments went into effect upon the President's signature. Accordingly, employers must act to update their policies and procedures but must also recognize that further policy revisions will be required once the DOL develops regulations to implement the amendments.

Expanded Entitlement To Leave

Previously, the FMLA provided leave to eligible employees: 1) for the birth of a child or for the placement of a child with the employee for adoption or foster care; 2) to care for a spouse, child or parent with a serious health condition; and 3) suffering from a serious health condition that renders the employee unable to perform the functions of his or her job. The Amendment adds a new qualifying reason making leave available:

  • because of a "qualifying exigency,"
  • arising from the fact that the employee's spouse, child or parent is on active duty or called to active duty in the Armed Forces, and
  • in support of a "contingency operation."

This leave may be taken on an intermittent or reduced schedule basis.

The ultimate impact of this change on FMLA usage cannot yet be gauged as the bill fails to define "qualifying exigency." Employers must, therefore, wait for the DOL to issue regulations defining what constitutes a "qualifying exigency." Although the DOL recently presented regulations to the White House, the contents of those regulations were not made public, nor has the DOL published proposed regulations to accompany the FMLA amendments.

What constitutes a "contingency operation" is defined by the military. As a general rule, this will include operations in which members of the Armed Forces may become involved in hostilities or which result in a call to active duty. Therefore, those service members currently on active duty or called to active duty due to conflicts in Iraq and Afghanistan would be considered to be involved in a “contingency operation.”

Servicemember Family Leave

With this new Servicemember Family Leave, employers must become accustomed to new and different terminology and standards. For example, Servicemember Family Leave does not hinge on the now familiar concept of serious health condition. Additionally, Servicemember Family Leave is available to employees who are the spouse, parent, child or next of kin of a "covered service member" in need of care. Covered service members include those undergoing treatment or who are on the military's temporary disability retired list due to a "serious injury or illness." This last term refers to an injury or illness incurred in the line of duty and on active duty that renders service members unfit to perform the duties of his or her office, grade, rank or rating. Finally, unlike other leave under the FMLA, Servicemember Family Leave may be taken for up to 26 weeks during a single 12-month period. It may also be taken on an intermittent or reduced schedule basis. Servicemember Family Leave is unpaid and employers remain free to require employees to substitute paid leave for all or part of the 26-week period.

Look for further alerts as the DOL publishes regulations to define the scope of these amendments. Click here to view the full text of the FMLA, as amended.