PUBLICATIONS

Employment & Labor E-Alert February 2008: Amendments to the FMLA Provide for Leave to Care for Family Members in the Armed Forces

2/11/2008

On January 28, 2008, President Bush signed into law H.R. 4986, the National Defense Authorization Act (the “NDAA”) for Fiscal Year 2008, Pub. L. 110-181. The full 1,505-page Act can be located at http://www.pubklaw.com/legis/hr4986.pdf. Among other things, the NDAA authorizes funding for the defense of the United States and its interests abroad, for military construction, and for national security-related energy programs.

Section 585 of the NDAA amends the Family and Medical Leave Act of 1993 (the “FMLA”) in two notable respects. First, Section 585 amends the FMLA to permit 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.”

This provision is effective as of January 28, 2008. The U.S. Department of Labor (the “DOL”) has advised that it will “quickly” prepare regulations to provide greater guidance regarding rights and responsibilities under this provision. In the interim, employers must “act in good faith” to provide leave under this new law.

The NDAA further amends the FMLA to permit an employee to take leave for “any qualifying exigency . . . 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 is not effective until the DOL issues final regulations defining the term “any qualifying exigency.” The DOL has advised that it is “expeditiously preparing such regulations.” In the interim, the DOL encourages employers to provide this type of leave to qualifying employees.

Employers should amend their FMLA policies to permit leave consistent with Section 585 of the NDAA. Employers should also provide training to their human resources employees to ensure that they understand and comply with the new amendment.

Rutan will provide a further update regarding the NDAA’s amendments to the FMLA once the DOL releases the promised regulations.