On January 28, President George Bush signed into law the National Defense Authorization Act for Fiscal Year 2008 which includes two provisions that expand the benefits of the Family and Medical Leave Act (FMLA) to assist service members and their families. One provision requires employers with 50 or more employees to provide up to 12 weeks of unpaid leave a year for a “qualifying exigency” connected to the active duty status of an employee’s spouse, son, daughter or parent (“active duty leave”). The other provision entitles eligible family members to take up to 26 weeks of unpaid leave to care for a wounded servicemember (“caregiver leave”).

After President Bush vetoed HR 1585 for reasons not related to the expansion of the FMLA, Congress quickly addressed the provisions that precipitated the President’s veto and passed another version of the National Defense Authorization Act, HR 4986, when it returned to Washington in early January.

The new law contains other provisions for these newly created FMLA-protected service leaves. For example, both leaves may be taken on an intermittent or reduced schedule basis. The law also authorizes the substitution of paid leave for these new unpaid, FMLA-protected service leaves. It allows an employer to request a certification for servicemember family leave and authorizes the Secretary of Labor to define this process by regulations. Finally, it requires an employee to provide “reasonable and practicable” notice of leave that is foreseeable due to the qualifying exigency related to active duty.

The caregiver leave is effective immediately upon the President’s signature. The active duty leave, however, will not be enforced by the Department of Labor (DOL) until new regulations defining “qualifying exigency” have been promulgated – although the DOL has stated that employers should comply with the new law. The DOL’s website contains additional information regarding the FMLA amendments.

Note: This article was published in the January/February 2008 issue of The Employment Law Authority.

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