Recent FMLA Changes Explained

On January 28, 2008, President Bush signed the 2008 National Defense Authorization Act (NDAA). It expands the Family and Medical Leave Act (FMLA) in two significant ways for families of injured military service members and those called to active duty.

First, effective immediately, the NDAA requires employers to provide up to 26-weeks of unpaid leave in a 12-month period to the spouse, son, daughter, parent or next-of-kin of a service member injured in the line of duty.

Second, the NDAA entitles the spouse, son, daughter or parent of a military service member on active duty, or on notice of an impending call to active duty, up to 12-weeks of unpaid leave in a 12 month period based on “any qualifying exigency”. However, this provision will not become effective until the Department of Labor (DOL) issues final regulation defining a “qualifying exigency”. The DOL’s website now “encourages” employers to provide such leave to eligible employees until it issues the final regulations.

In order to qualify for leave pursuant to the NDAA amendments, an employee still must comply with other provisions of the FMLA (be employed for at least a total of 12 months and worked at least 1250 hours in the previous 12-month period for an employer with 50 or more employees). Note, also, that if an employee requests FMLA leave to care for an injured service member and that employee has already taken FMLA leave in the past 12 months, the 26-week leave period will be reduced by the amount of leave previously taken.