On January 28, President Bush signed into law the National Defense Authorization Act for Fiscal Year 2008 (NDAA), legislation that includes provisions expanding leave rights for military families under the Family and Medical Leave Act (FMLA). We reported on this legislation in a December client alert.
The NDAA expands the FMLA in three ways. First, there are two new categories of conditions that entitle eligible employees to take FMLA leave. Eligible employees may now take FMLA leave for “any qualifying exigency” arising out of a family member’s active duty or call to active duty. The legislation also allows eligible employees to take FMLA leave to care for a family member injured while serving in the military. Second, the legislation allows eligible employees to take up to 26 weeks of leave in a single 12-month period to care for an injured servicemember. Employees taking leave for this reason are entitled to a total of 26 weeks of leave, not 26 weeks plus 12 weeks of FMLA leave for other reasons. In addition, leave taken for this reason is restricted to one-time use. Entitlement to this type of leave does not renew every year like other types of FMLA leave. Third, the NDAA creates a new category of eligible employee entitled to FMLA to care for an injured service member. In addition to spouses, children, and parents, someone who is the “next of kin” is entitled to take FMLA leave for this purpose. “Next of kin” is defined as the nearest blood relative to the servicemember.
The NDAA did not contain an effective date. However, the Department of Labor (DOL) confirmed this week that the provisions of the NDAA providing leave to care for an injured servicemember became effective January 28, 2008, the date of the President’s signing. The provisions of the NDAA providing for FMLA leave for “any qualifying exigency” arising out of a family member’s active military service are not effective until the Secretary of Labor issues regulations defining “any qualifying exigency.” However, the DOL is encouraging employers to provide this type of leave to qualifying employees in the interim. The DOL is working quickly to prepare regulations providing more guidance under the new legislation but employers are expected to act in good faith in providing leave under the new legislation until final regulations are published.