On Monday January 28, 2008, President Bush signed into law H.R. 4986, the National Defense Authorization Act for FY 2008, which expands the Family and Medical Leave Act of 1993 (FMLA) by providing additional leave to family members of military personnel. The expansion creates two new categories of permitted leave:

Service Member Family Leave: Effective immediately, an eligible employee who is the spouse, son, daughter, parent or next of kin (nearest blood relative) of a “covered service member” shall be entitled to a total of 26 workweeks of unpaid leave during a 12-month period to care for the service member. A “covered service member” means a member of the Armed Forces, including members of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in an outpatient status or is otherwise on the temporary disability retired list for a serious illness or injury. A serious illness or injury means an illness or injury incurred on active duty that may render the covered service member unfit to perform the duties of the member’s office, grade, rank, or rating.

This leave is available for a single 12-month period and may be taken intermittently or on a reduced leave schedule. The 26 workweeks is a combined total with other FMLA leave entitlements. A husband and wife who work for the same employer may be limited to taking a total of 26 workweeks of leave during a 12-month period. An eligible employee may elect, or an employer may require the employee to substitute any accrued paid vacation leave, personal leave, family leave, or medical or sick leave of the employee for any part of the 26-week period.

Any Qualifying Exigency Leave: The family leave entitlements (birth and serious health conditions) have been expanded to also permit an eligible employee a total of 12 workweeks leave during any 12-month period for 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 as been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation. Although this provision is not effective until the Secretary of Labor issues final regulations defining “qualifying exigency”, the DOL is encouraging employers to comply now.

According to Frank Del Barto, a member of the Firm’s Employment and Labor Practice Group, the expansion of the FMLA to include care for wounded service members and “qualifying exigencies” can have an immediate impact on many employers. Although the Department of Labor is expected to issue new regulations that will define “qualifying exigency” shortly, employers are expected to make a good-faith effort to comply immediately. In the Firm’s experience with the Department of Labor, good-faith means that employers should interpret the new FMLA provisions in the broadest possible way so as to provide the new benefits to affected employees. The Firm will be developing a sample FMLA policy to accommodate these new types of leave. Frank notes that all FMLA related employment policies, handbook sections, and procedures must be updated to reflect these new requirements. Frank also suggests that employers take this opportunity not just to update the FMLA provisions but to also review their policies and handbooks for general compliance with applicable laws.