New and Pending Changes to the FMLA

January 31, 2008

On January 28, 2008, President Bush signed into law the National Defense Authorization Act for Fiscal Year 2008 (NDAA), H.R. 4986. Among other things, the NDAA contains important amendments to the Family and Medical Leave Act (FMLA) regarding an employee’s entitlement to leave.

New FMLA Amendments

As a general rule, the FMLA grants eligible employees up to twelve weeks of unpaid leave during a twelve month period to address an employee’s or an immediate family member’s serious health condition, or due to the birth, adoption or placement of a child in the employee’s care. The NDAA’s amendments to the FMLA expand leave rights in two situations.

First, the NDAA adds “qualifying exigency” to the list of reasons an employee may qualify for up to 12 weeks of unpaid FMLA leave. According to the NDAA, a “qualifying exigency” may arise when the spouse, son, daughter or parent of the employee is on active duty or has been notified of an impending call or order to active duty. The NDAA, however, fails to define the term “qualifying exigency,” and instead directs the Secretary of Labor to prepare regulations to clarify when this new eligibility criteria applies. Thus, while the Department of Labor (DOL) has encouraged employers to begin granting leave to qualified employees in these circumstances immediately, the amendment does not take effect until the clarifying regulations are adopted.

The second, perhaps more dramatic, change permits an employee who is a spouse, son, daughter, parent or next of kin (nearest blood relative) of a “covered servicemember” to take up to 26 weeks of FMLA leave to care for the covered servicemember. A covered servicemember is defined by the NDAA to be a member of the Armed Forces, including the National Guard or Reserves, who is undergoing medical treatment, recuperation or therapy, or is otherwise still on outpatient status or on a temporary disability retired list for a serious injury or illness. If an employee and his/her spouse are employed by the same employer, they may take a combined total of 26 weeks of leave under this section. Unlike the “qualifying exigency” amendment, this provision became effective upon the President’s signing of the NDAA into law on January 28, 2008.

Additional Pending Changes

While the amendments to the FMLA in the NDAA are the first amendments adopted since the FMLA became law approximately 15 years ago, they are likely not the last. The DOL sent additional proposed, new regulations to the White House’s Office of Management and Budget (OMB) for consideration last week. The substance of the additional proposed amendments has not been disclosed, but is expected to be published in the Federal Register within the next 90 days. Speculators have suggested that the amendments may include a requirement that employees give prior notice of the need for FMLA leave as well as changes to the medical certification process.

Employers should take this opportunity to ensure managers and human resources staff are aware of the expanded leave rights and of the potential for changes in the future. In addition, employers should examine their FMLA policies to ensure their terms are consistent with current law.