FMLA Expansion Signed into Law

Barnes & Thornburg LLP
February 17, 2008 | COMMENTS

On January 28, 2008 President Bush signed into law the National Defense Authorization Act (NDAA), which expands the Family and Medical Leave Act (FMLA) to include leave for military families. In late December 2007, the president vetoed an earlier version of the law.

Now that the expansion has been signed into law, employers must provide 26 weeks of FMLA leave during a single 12-month period to permit a “spouse, son, daughter, parent, or next of kin” 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.” This portion of the expansion became effective upon the president's signature.

Another provision of the NDAA, however, will require additional guidance from the Department of Labor (DOL) before it becomes effective. Specifically, employees are entitled to 12 weeks of FMLA leave for any “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.” This provision will not become effective until the DOL issues final regulations defining “any qualifying exigency.” In the meantime, the DOL encourages employers to provide this type of leave.

Although the DOL has not updated its FMLA forms or issued comprehensive regulations to implement the NDAA, employers are expected to act in good faith when providing leave under this new legislation. To that end, employers should review their FMLA policies, procedures and forms and make any appropriate changes.

This Barnes & Thornburg LLP publication should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation. For more information about the NDAA, or other employment law questions, visit www.btlaw.com/laborandemploymentlaw.