On January 28, 2008, President Bush signed into law the National Defense Authorization Act for FY 2008, which, among other things, amends and expands the Family Medical Leave Act (FMLA). Employers should be aware that this amendment requires employers to: 

1. Give an eligible employee who is the “spouse, son, daughter, parent, or next of kin” of a member of the Armed Forces who has sustained an injury or illness in the line of duty to take up to a total of 26 workweeks of job-protected leave during a single 12-month period to care for that service member. (“Next of kin” means the nearest blood relative of the injured service member.)
   
2. Provide up to 12 weeks of FMLA leave in any 12 month period to an eligible employee because of a “qualifying exigency” arising out of thefact that the employee’s spouse, child, or parent is on active duty or has been notified of an impending call to active duty. The term “qualifying exigency” has not yet been defined, but will be through DOL rulemaking.

When does the amended law take effect?

The provisions of this law that permit leave to care for an injured service member are effective as of the date of the President’s signing – January 28, 2008. The U.S. DOL reports that the provisions that permit leave for a “qualifying exigency” are not effective until the final regulations defining the term are issued. DOL also has reported that it is working quickly to prepare guidance regarding rights and responsibilities under this new law, and that in the interim, employers will be required to “act in good faith” in providing such leave.

Other important provisions for employers to consider:

• Leave to care for an injured service member can be taken on an intermittent or reduced schedule basis when medically necessary.
• Leave because of a “qualifying exigency” involving a call to active duty may be taken intermittently or on a reduced schedule basis, subject to certification conditions that will be defined through rulemaking. 
• The leave is unpaid. However, existing provisions governing substitution of paid leave apply.
• Medical certification can be required to support leave to care for an injured service member.

Next steps for employers:

Given the notice requirements imposed by the FMLA, employers should begin notifying their employees about these new leave rights now. Maine employers also will need to takes steps to effect proper coordination of these new rights with existing FMLA rights and Maine laws regarding military and family leave. To view the full text of the amended law, go to: http://www.dol.gov/esa/whd/fmla/fmlaAmended.htm