Section 585 of the National Defense Authorization Act for FY 2008 amends the Family and Medical Leave Act by expanding leave coverage for family members of those serving in the Armed Forces.

On January 28, 2008, the Family and Medical Leave Act ("FMLA") was amended for the first time since its passage in 1993. The amended Act expands the scope and duration of permissible leave. The legislation is effective immediately and prudent employers are wise to review and revise their FMLA policies and practices accordingly.

The amended Act provides for two additional categories of leave, both involving family members of the Armed Forces. First, the amended Act allows a spouse, son, daughter, parent, or next of kin to take up to 26 weeks of leave to care for a member of the Armed Forces who is injured in the line of duty. Such "Servicemember Family Leave" is limited to a single 12-month period, meaning that such leave can only be taken once. This category of leave is effective immediately.

The second category of leave allows an employee to take up to 12 weeks of leave for "any qualifying exigency" that arises out of the fact that the spouse, son, daughter or parent of the employee is on active duty or has been notified of an impending call or order to active duty. The Department of Labor is currently preparing regulations that will define those activities that are deemed "qualifying exigencies;" however, such activities may include child or elder care or helping a family member prepare for departure for duty. This category of leave is not effective until the Secretary of Labor issues final regulations defining "any qualifying exigency."

Both types of leave continue to be unpaid leave, consistent with the other forms of leave authorized under the FMLA. Further, the 12 weeks of leave provided for in the event of a "qualifying exigency" count against the 26 weeks of Servicemember Family Leave.

• An employer cannot discipline an eligible employee for absences that are protected by the FMLA, even if, by its own fault, the employer is not aware that the absence qualifies for the FMLA. If the employee has given the organization enough information to suggest that the absence might be for an FMLA-qualifying reason, it is up to the organization to find out if the absence is covered.
• According to the FMLA, the employee is not required to expressly assert rights under the FMLA; however, if the employer knows that leave is needed for a serious health condition, the protection of the FMLA may automatically attach to the absence.
• An employer should notify an employee in writing within a reasonable time, one to two business days if feasible, if the leave qualifies as Family and Medical Leave.
• Federal regulations require the organization to maintain records pertaining to all requests for Family and Medical Leave for three years.

At this point, particularly given the absence of any interpretive regulations regarding the new provisions, managers should be reminded to follow Prescriptive Rule^® #3 and Get Help when dealing with a potential FMLA leave issue.

Resources
A copy of the Family and Medical Leave Act, as amended, can be found on the Department of Labor's website. 

The latest updates and guidance from the Department of Labor can be found here.

Frequently Asked Questions about the FMLA: Dept. of Labor elaws® - Family and Medical Leave Act Advisor

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