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FMLA: President Signs Military-Related FMLA Changes

On January 28, 2008, President Bush signed into law H.R. 4986, the National Defense Authorization Act for FY 2008 (“NDAA”). Section 585 of the NDAA amends the Family and Medical Leave Act of 1993 (“FMLA”). The NDAA provides two new types of FMLA leave to employees with family members serving in the military:

1. Caregiver Leave: Permits a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks of leave to care for 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.” The leave described in this paragraph is only available during a single 12-month period. This caregiver section is effective January 28, 2008.

2. Call to Duty Leave: The NDAA also permits an employee to take FMLA leave for “any qualifying exigency (as the Secretary [of Labor] shall, by regulation, determine) 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.” Technically, this provision of the NDAA is not effective until the Secretary of Labor issues final regulations defining “any qualifying exigency.”

The USDOL is currently preparing more comprehensive guidance regarding rights and responsibilities under this new legislation. In the interim, the USDOL has required employers to act in good faith in providing leave under the new legislation. It should be noted, since the NDAA amends the FMLA, FMLA-type procedures should be used as may be appropriate (for example, procedures regarding substitution of paid leave and notice).

Employers will need to be prepared for these significant changes to the FMLA. Employers should revise and reissue FMLA policies and administration forms and procedures as appropriate. Employers should also train managers and supervisors concerning these new provisions and communicate the new FMLA eligibility rights to employees. Until the USDOL regulations are issued, employers should proceed with caution in addressing an employee’s request for military-related leave. Employers with questions concerning the new requirements or employee leave rights should contact an attorney in Berchem Moses & Devlin’s Labor & Employment Group.