The National Defense Authorization Act amends the FMLA to expand leave time for military family members

The Family and Medical Leave Act (FMLA) was enacted in 1993 to provide employees with family and temporary medical leave under certain circumstances. Under the Act’s original provisions, eligible employees were permitted to take up to 12 weeks of unpaid leave for the birth and care of a newborn child of the employee, placement with the employee of a son or daughter for adoption or foster care, care for an immediate family member (spouse, child, or parent) with a serious health condition, or medical leave when the employee is unable to work because of a serious health condition.

On January 28, 2008, President Bush signed into law H.R. 4986, the National Defense Authorization Act for Fiscal Year 2008 (NDAA). The NDAA effectively amends the FMLA to expand available leave time for families of military service members.

The amendment to the FMLA provides two types of leave to eligible employees: (1) leave for care for an injured service member; and (2) leave due to active duty of a family member. These types of leaves are available to employees during a single twelve month period and run concurrently with any FMLA leave for which the employee is eligible. The amendments give the "spouse, son, daughter, parent, or next of kin" of a member of the Armed Forces up to 26 weeks of leave to care for the service member "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 "an injury or illness incurred by the member in 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."

The NDAA also permits an employee to take a 12-week FMLA leave for "any qualifying exigency (as the Secretary of Labor will define by regulation) 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 applicable test for employee eligibility remains as it has been for FMLA leave. To be eligible, the employee must have been employed by the employer for at least twelve months and have worked at least 1,250 hours during the immediate previous 12 months. Also, the employer must employ at least 50 employees within a 75 mile radius of the worksite.

The Department of Labor is working "expeditiously" to prepare final guidelines regarding the responsibilities of employers with regard to the NDAA; proposed regulations will be published in the Federal Register on February 11, 2008. However, until the regulations are finalized, employers should act in good faith in providing leave under the new legislation.

Employers should become familiar with the new legislation, and with the added obligations required under the Act. Accordingly, employers should review their FMLA policies and revise the provisions as necessary to include leave as provided in the NDAA amendments.