On January 28, 2008, President Bush amended the Family and Medical Leave Act (“FMLA”) to provide expanded coverage for military family members. This is the first expansion of the FMLA since its enactment in 1993.

The amendment creates two new forms of leave for families of service members: (1) leave to care for a service member who has experienced a “qualifying exigency” arising out of active duty; and (2) leave to care for a service member who has suffered a serious illness or injury. These new forms of military family leave may be taken intermittently.

(1) Active Duty Leave: An eligible employee who is the parent, spouse, son, or daughter of a service member who has experienced a “qualifying exigency” arising out of the service member’s active duty is entitled to take up to 12 work weeks of leave during any 12-month period for the care of the service member. Qualifying exigency has not yet been defined. As a result, this part of the amendment will not become effective until the Department of Labor issues regulations specifying what is a “qualifying exigency”.

(2) Caregiver Leave: An eligible employee who is the parent, spouse, son, daughter, or next of kin (nearest blood relative) of a service member who has suffered a serious illness or injury in the line of duty and while on active status is now entitled to a total of 26 work weeks of leave during a single 12-month period to provide care for the service member.

The FMLA amendments do not specify an effective date, which means the new legislation has immediate implications for employers (except for the “qualifying exigency” aspect). We encourage employers to inform their employees of the new leave entitlements and to update their FMLA policies to comply with the new law.