Recent FMLA Amendment — Leave for Servicemember’s Families

February 10th, 2008

On January 28, 2008, President Bush signed into law the National Defense Authorization Act of 2008 (NDAA), which amends the Family Medical Leave Act of 1993 (FMLA).  The NDAA includes provisions which provide families of servicemembers the right to unpaid leave of absence under certain circumstances.

First, the NDAA creates a new category of unpaid leave for eligible employees to take up to 12 weeks of leave “because of any qualifying exigency….arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.”  The NDAA does not include a definition of “qualifying exigency”, but it does call for the DOL to promulgate final regulations that will contain the definition.  Since there is no definitive answer yet what circumstances will qualify to trigger this right to leave, this provision is not yet effective.  It will not become effective until the DOL releases its final regulations.  However, employers are being encouraged to provide “qualified exigency” leave in the interim before the final regulations are available.

Second, the NDAA provisions extend the unpaid leave period for eligible employees from the FMLA’s 12 weeks to “a total of 26 workweeks of leave during a 12-month period to care for” a covered servicemember.  “Covered servicemember” is defined as a member of the “Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.”  A “serious injury or illness” is defined as “an injury or illness incurred by the member in the line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating.”  Unlike the “qualifying exigency” leave, this extended leave provision is effective as of January 28, 2008.

The NDAA limits the total amount of leave available under the FMLA to a combined total of 26 weeks in any 12 month period, provided that those 26 weeks include a leave to care for a covered servicemember due to serious injury or illness.  For example, if an eligible employee takes 12 weeks of leave under FMLA, then for the remainder of that 12-month period, only 14 weeks of leave would remain available under the NDAA amendments.  As with FMLA leave, the servicemember leave provided by the NDAA may be taken on an intermittent basis.

Employers need to immediately have their existing FMLA policies and procedures reviewed and amended to accommodate the NDAA changes.  Additionally, until the DOL issues final regulations which clarify some of the open issues left by the NDAA, employers need to tread very carefully when approached by employees with requests for military-related leaves.  Any concerns and questions should be reviewed with an employee benefits attorney to ensure the employer is compliant with the new amendments.

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3 Responses to “Recent FMLA Amendment — Leave for Servicemember’s Families”

  1. […] RECENT AMENDMENT TO FMLA PROVIDES LEAVE FOR SERVICEMEMBER’S FAMILIES By Sheila Aiken On January 28, 2008, President Bush signed into law the National Defense Authorization Act of 2008 (NDAA), which amends the Family Medical Leave Act of 1993 (FMLA). The NDAA includes provisions which provide families of servicemembers … […]

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