EMPLOYMENT LAW ALERT: President Bush Signs Law that Expands FMLA Leave to Families of Servicemembers

January 2008



On January 28, 2008, President Bush signed the National Defense Authorization Act for Fiscal Year 2008 (the “Act”) which includes the first major expansion of the Family Medical Leave Act (“FMLA”) since its enactment in 1993.  The Act provides for two new types of FMLA leave related to families of military servicemembers.  In addition to current FMLA leaves, eligible FMLA employees will be able to take leave as follows:

  1. Leave For “Any Qualifying Exigency”:  The law adds a new qualifying event for an employee to take a 12-week FMLA leave when an employee’s “spouse, son, daughter, parent, or next of kin is on or has been called to active duty in the Armed Forces in support of a contingency operation.”  The Department of Labor will determine and issue final regulations defining “any qualifying exigency. 
  2. Care of Servicemember:  The law also permits a “spouse, son, daughter, parent, or next of kin” to take up to 26 weeks of FMLA leave during a 12-month period to care for a “member of the Armed Services,” including a member of the National Guard or Reserves, who is “undergoing medical treatment, recuperation, or therapy, is otherwise in an outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.”  A “serious illness or injury” is defined as “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.” 

Of particular note is that the expansion of the FMLA has created a new category of employees eligible to take FMLA leave to care for an injured servicemember.  “Next of kin,” defined as “the nearest blood relative” of the injured servicemember is added to the eligible employees permitted to take leave.

Although the final regulations are forthcoming from the Department of Labor, employers should provide this type of leave to qualifying employees as the law became effective upon President Bush’s signature.  Under both of these categories, the leave may be used on an intermittent basis.  During the single 12-month period for leave to care for a servicemember, an eligible employee is entitled to a combined total of 26 workweeks of unpaid leave for any combination of this caregiver leave and the exigency or other leave qualifying under current FMLA regulations.  The employee is entitled to up to 12-weeks for a combination of the exigency and other types of current leave under the FMLA.

The DOL has provided employers a temporary poster notifying employees of their rights to take FMLA leave related to an employee's family military servicemembers. Post this poster with the current FMLA poster until the regulations are finalized, which is expected to be sometime during the 2008 summer.

If you have any questions, or need assistance in revising your FMLA policy, or any other policies or employment law issues, please contact your attorney at Moss & Barnett.

(January, 2008)