Employment Law Updates

Family and Medical Leave Act Amended to Benefit Service Members

On January 28, 2008 President Bush signed into law the National Defense Authorization Act (NDAA), which among other things amends the Family Medical Leave Act (FMLA) for the first time since its passage in 1993. The NDAA amends the FMLA in two important ways:

First, prior to the NDAA amendment, an eligible employee could have utilized up to 12 weeks of FMLA leave in a 12-month period for any of the following four reasons:

(1) the birth of a child or to care for a newborn child;

(2) the placement of a child with the employee in an adoption or foster care setting;

(3) to care for a spouse, child or parent with a serious health condition; or

(4) to address the employee's own serious health condition.

As a result of the NDAA, there is now a fifth reason an eligible employee may utilize FMLA leave:

•(5) "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 define "qualifying exigency" and this provision will not take effect until the U.S. Department of Labor (DOL) issues regulations clarifying this term. On February 11, 2008, the DOL issued proposed revisions to the regulations underlying the FMLA, in part to flesh out the new requirements under the NDAA. The proposed revisions will be in a period of public comment until April 11, 2008. While awaiting the DOL's guidance on "qualifying exigenc[ies]," employers may take note that Congress's intent behind the NDAA was to provide active service members with a system of family support necessary to getting affairs in order prior to active duty deployment. For example, an active service member may require the assistance of family members (the eligible employees who may now request FMLA leave under this provision) to address financial affairs and childcare issues prior to serving away from home. Until the final regulations are issued, the DOL advises employers to act in good faith in providing "qualifying exigency" leave under the NDAA legislation.

Second, employers are now required to provide up to 26 weeks of unpaid FMLA leave during a single 12-month period for an eligible employee who is the spouse, son, daughter, parent or next of kin (nearest blood relative) of a "covered service member" to care for the "covered service member." A "covered service member" 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." Under this amendment, an eligible employee receives more than double the leave time available under the original categories. This provision became effective on January 28, 2008.

Covered employers (generally those with 50 or more employees) should promptly revise FMLA policies and leave forms to reflect these amendments. The 26-week provision is already in effect and must now be a part of an employer's overall approach to FMLA leave. The "qualifying exigency" provision is still the subject of DOL clarification. However, as the DOL advises, employers should indeed act in good faith when faced with an eligible employee's request for FMLA that could fall under the "qualifying exigency" provision. Until the DOL issues final regulations clarifying specifics, employers should consult qualified employment counsel with questions about leave requests even remotely related to military service.