January 30, 2008

President Bush signed the National Defense Authorization Act (NDAA) on Monday, January 28, 2008.  The NDAA, which goes into effect immediately, amends certain provisions of the Family & Medical Leave Act (FMLA).

As amended by the NDAA, the FMLA now allows a "spouse, son, daughter, parent, or next of kin" to take a total of 26 workweeks of leave to take care of "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 legislation defines "serious injury or illness" as an "injury or illness incurred by the member in line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member's office, grade, rank, or rating."

The amendment also permits an employee to take FMLA 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."  The Department of Labor (DOL) will define “qualifying exigency” in later regulations.

Currently, employers will be required to act in good faith in providing FMLA leave under this new amendment while the DOL works to prepare comprehensive guidance on the new provisions.