Yesterday, President George Bush signed into law the National Defense Authorization Act for Fiscal Year 2008 which includes two provisions that expand the benefits of the Family and Medical Leave Act (FMLA) to assist service members and their families. One provision requires employers with 50 or more employees to provide up to 12 weeks of unpaid leave a year for a "qualifying exigency" connected to the active duty status of an employee's spouse, son, daughter or parent ("active duty leave"). The other provision entitles eligible family members to take up to 26 weeks of unpaid leave to care for a wounded servicemember ("caregiver leave").

After President Bush vetoed HR 1585 for reasons not related to the expansion of the FMLA, Congress quickly addressed the provisions that precipitated the President's veto and passed another version of the National Defense Authorization Act, HR 4986, when it returned to Washington earlier this month.

Section 585 of the newly-enacted National Defense Authorization Act contains the following two new FMLA requirements affecting servicemembers and their families, which became effective when the President signed the bill.

Active Duty Leave

The new active duty leave creates an additional basis for an employee to take FMLA leave. Specifically, this new reason for FMLA leave created by Congress is for a "qualifying exigency" that arises from the fact that the employee's spouse, son, daughter or parent is on active duty or has been notified of an impending call or order to active duty. While Congress created this new category for leave, it did not define the term "qualifying exigency" and has directed the Secretary of Labor to issue regulations to determine what constitutes such an exigency. This new basis for FMLA leave supplements the existing four (4) reasons an eligible employee could take up to 12 weeks of leave each year contained: (1) the birth of a child and to care for such child; (2) the placement of a child for adoption or foster care; (3) caring for a spouse or immediate family member with a "serious health condition"; and (4) where an employee has a serious health condition such that they are unable to work.

Caregiver Leave

The other FMLA-related provision contained in the defense bill is a new FMLA servicemember family leave program. It specifically provides that an eligible employee may take up to 26 weeks of FMLA leave to care for a spouse, son, daughter, parent or next of kin ("nearest blood relative") who is a covered servicemember. The servicemember must have a "serious illness or injury" incurred while on active duty that may render the member unable to perform the duties of his or her office, grade, rank or rating and for which the member is: (1) undergoing medical treatment, recuperation or therapy; (2) an outpatient; or (3) on a temporary disability retired list. The provision also defines several key terms of this new leave program including "covered servicemember," "next of kin" and "serious injury or illness" as it applies to a member of the Armed Forces. The new FMLA caregiver leave is available only during a single 12-month period.

Other Provisions

The new legislation contains other provisions for these newly created FMLA-protected service leaves. For example, both leaves may be taken on an intermittent or reduced schedule basis. The legislation also authorizes the substitution of paid leave for these new unpaid, FMLA-protected service leaves. It allows an employer to request a certification for servicemember family leave and authorizes the Secretary of Labor to define this process by regulations. Finally, it requires an employee to provide "reasonable and practicable" notice of leave that is foreseeable due to the qualifying exigency related to active duty.

The Department of Labor (DOL) recently announced that it has sent proposed changes to the existing regulations governing the FMLA to the Office of Management and Budget for approval. While the changes have not been outlined, the DOL may include clarification on the new active duty and caregiver leaves in addition to a variety of other issues associated with the existing FMLA regulations. These areas may include provisions that courts have invalidated, the medical certification and notification requirements, and the waiver-of-rights provisions. Any proposed regulations that go beyond defining a "qualifying exigency" to include reforms of the existing FMLA regulations are subject to criticism and could delay the generally accepted new active duty and caregiver leaves. However, the DOL hopes to avoid any such consequences by ensuring that no one loses any FMLA protections