On January 28, 2008, President Bush signed into law the National Defense Authorization Act for FY 2008 (“NDAA”). Among other things, § 585 of the NDAA amends the Family and Medical Leave Act of 1993 (“FMLA”) and makes eligible for leave two new categories of employees who have immediate family members called to active duty.

The first category entitled, “Military Injury Care-Giving Leave” permits a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks of leave 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.”

The Department of Labor is in the process of preparing comprehensive guidance regarding rights and responsibilities under this new legislation. In the interim, the DOL directs employers to act in good faith in providing leave under the new legislation. Because the NDAA amends the FMLA, FMLA-type procedures should be used as may be appropriate (for example, procedures regarding substitution of paid leave and notice).

Points for Employers to Note:

1. Eligible employees are entitled to this extended form of FMLA leave only once in a single 12-month period, although an employee might qualify again for a 26 week leave entitlement if a separate family member were injured.



2. Other FMLA leave already taken in a 12-month period would be counted with this form of leave toward the employee’s annual leave entitlement.



3. “Next of kin” is new and is defined as the closest blood relative of the injured or recovering service member.



4. At present, the same FMLA certification policies and procedures that an employer would use for an employee who requested traditional FMLA leave to care for a family member may be applied in this situation. That is, the employer may require certification of the family member’s injury, recovery, and/or qualifying need for care. It is important to note that the injured family member need not have a “serious health condition” as currently defined in the FMLA. Rather, for an employee to be eligible for this new form of FMLA leave, the family member must merely have an injury or illness incurred on active military duty that could render the person medically unfit to perform his or her military duties. An employee is also entitled to this leave while the family member is undergoing medical treatment, recuperation, or therapy for the covered injury or illness, even if the family member is on a temporary disability retired list relative to the injury or illness.

Effective Date: This provision of the NDAA is effective as of January 28, 2008, i.e., the date of the President’s signing.

The second category of leave entitled, “Family member Military Duty Exigency Leave” permits an employee to take FMLA leave for “any qualifying exigency” arising out of the fact that a covered employee’s 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.” Any leave taken for this purpose would be counted with other types of FMLA leave toward the employee’s 12-workweek limit in a 12-month period.

Points for Employers to Note:

1. Although there is no definition of “qualifying exigency” as of yet, that term must be accorded the broadest interpretation possible since the purpose and of intent the amendments is to provide maximum protection to affected employees. Until there is further guidance from the DOL, example of an “exigency” caused by a family member’s military call-up or service might include child or elder care (even without a serious health condition), or helping the family member prepare for departure for duty.



2. Employers will not be able to require employees requesting this leave to follow certification requirements related to the existing WH-380 “Certification of Health Care Provider” form, as no medical condition will be at issue. The new law does direct that regulations be issued regarding certification requirements for this type of leave. In the meantime, it should be reasonable for employers to request some type of written proof of the qualifying family member’s call-up or current military service prior to granting leave.



3. Employees should immediately amend their FMLA policy to include these two new categories of FMLA leave.

Effective Date: By its express terms, this provision of the NDAA is not effective until the Secretary of Labor issues final regulations defining “any qualifying exigency.”

If you have any questions, please contact Le Phan at (612) 373-8407 or hphan@felhaber.com.