MILITARY - Family and Medical Leave Act

The 2008 National Defense Authorization Act ("NDAA"), signed by President Bush on January 28, 2008, significantly expands the Family Medical Leave Act ("FMLA") for families of military service members. The law, which became effective immediately, amends the FMLA to provide two new forms of leave. Employers should become familiar with these changes and begin the process of updating their FMLA policies and related forms to ensure continued compliance.

The FMLA amendments add the following leave entitlements for eligible employees:

On An Annual Basis: Up to 12 weeks of leave for an "exigency" related to active duty service by the employee's immediate family member; and

Once During An Employee's Employment: Up to 26 weeks of leave to care for a spouse, son, daughter, parent, or next of kin who is a member of the armed forces and who is undergoing medical treatment or who is medically unfit to perform military duties due to an injury or illness incurred while on active duty.

Certain challenges may arise for employers in applying these amendments, especially in the near term. For example, because terms such as "exigency" and "next of kin" are not defined in the law, employers will have to do their best to reasonably interpret these terms. Another issue relates to certification. While employers may require certification, employers' existing forms --- and those available from the Department of Labor ("DOL") --- do not address the circumstances and eligibility criteria relating to the new military leave entitlements. The DOL has not indicated when it will release a new certification form, regulations, or any other information related to compliance with the amendments.

Other provisions of the new FMLA amendments include:

A requirement that an employee seeking a leave related to an "exigency" must provide as much notice to the employer as is "reasonable and practicable;"

The addition of a "next of kin" category of employee eligible for leave, while the FMLA previously only required leave to care for "immediate family members."

It is also important to note that a service member's lack of medical fitness for duty due to illness or injury is not the same as a "serious health condition" as that term applies elsewhere in the FMLA.

Employers must also keep in mind that employees who enlist or are called up for military service are already entitled to leave from their jobs and reinstatement under the federal Uniformed Services Employment and Reemployment Rights Act ("USERRA").

The FMLA amendments became effective immediately upon the President signing them into law. The Secretary of Labor will now begin work on regulations to implement the new provisions, but employers are required to comply with the law even before the regulations can be developed.