Signed into law on January 28, 2008, the National Defense Authorization Act (NDAA) amends the Family and Medical Leave Act (FMLA). The FMLA previously required businesses with more than 50 employees to grant eligible employees 12 workweeks of leave for:
the birth and care of the newborn child of the employee; placement with the employee of a son or daughter for adoption or foster care; care of an immediate family member (spouse, child, or parent) with a serious health condition; or
medical leave when the employee is unable to work because of a serious health condition.
The amendment expands the situations eligible for FMLA leave and allows an eligible employee to take up to 26 workweeks to care for a spouse, child, parent, or next of kin that is 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 change is effective immediately, but the US Department of Labor has not yet released the comprehensive guidance on rights and responsibilities under the amendment. Until such provisions are outlined, employers must act in good faith in providing leave to those caring for family in the Armed Forces.
In addition, the NDAA also allows for employees to take FMLA leave for “qualifying exigency” (to be determined, by the Secretary of Labor) arising from the employee’s spouse, child, or parent being on active duty (or has been notified of impending order to active duty) in the Armed Forces in support of a contingency operation. This provision is not yet effective until the Secretary of Labor, by regulation, defines “qualifying exigency.” The Department of Labor is quickly working to finalize these regulations. In the meantime, they encourage employers to also act in good faith and provide this kind of leave to qualifying employees.
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