On January 28, 2008, the President signed the National Defense Authorization Act into law. This new law amends the Family and Medical Leave Act (FMLA) in two significant ways:
First, effective immediately, up to 26 weeks of caregiver (spouse, child, parent or nearest blood relative) leave are available during any 12-month period to employees caring for a recovering service member who sustains an injury or illness while on active duty that may render that person unable to perform the functions of the person's office, grade, rank or rating. The law requires that employers act "in good faith" to provide the required leave while the Department of Labor prepares guidance materials for implementation.
Second, the law creates a new category of leave by amending the list of qualifying reasons for FMLA leave. Under this amendment a close family member (spouse, child or parent) of a service member who is notified of an impending call to active duty or who has in fact been activated for such duty may be entitled to up to 12 weeks of FMLAqualifying leave. Leave under these provisions may be taken for any "qualifying exigency" arising out of the family member's active duty commitment, and leave may commence as soon as the family member is notified of an impending call to duty or order. The active duty leave provisions of the law will not go into effect until the Department of Labor issues final regulations defining the scope of the term "qualifying exigency." While the Department considers these regulations, it is encouraging employers to extend leave voluntarily to all qualifying employees.
Additionally, these amendments to the FMLA operate within the statute's existing framework. Accordingly, employers should apply existing recordkeeping and designation procedures and, where appropriate, should utilize related paperwork. Leave will also need to be coordinated with other types of leave already available to eligible employees. Going forward, we anticipate that employers will need to revise FMLA paperwork and policies to incorporate the recent changes.
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