On January 28, 2008, President Bush signed the National Defense Authorization Act (NDAA), which amends the Family Medical Leave Act and expands the leave requirements of the the FMLA. Because the new law amends the FMLA, it will only apply to employers with at least fifty employees.
Previously, an Employer was required to provide an eligible employee with leave to care for an employee's own serious illness or injury, a family member (as defined by the FMLA) with a serious illness or injury, or a newborn or adopted child. The law now provides for leave under two additional circumstances:
An employer must allow a "spouse, son, daughter, parent, or next of kin" to take up to 26 weeks of unpaid 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." A serious illness or injury is limited to 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."
An employer must also allow an employee to take up to twelve weeks unpaid 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 Secretary of Labor has been charged with defining the term "qualifying exigency" and is working to draft regulations. Qualifying exigency may include leave to assist a family member to take the necessary steps to prepare for active duty. This provision of the law is not effective until final regulations have been issued; however, in the interim, the Department of Labor is encouraging employers to provide this type of leave to eligible employees.
In light of these new requirements, employers are urged to immediately revise existing FMLA policies and to discuss these requirements with managers who may receive requests for leave. Additionally, employers who receive requests for "qualifying exigency" leave are urged to consider the facts and circumstances of each request and to act reasonably in considering the request. Lastly, employers should also keep in mind the requirements of the Uniformed Services Employment and Reemployment Rights Act (USERRA) and the Washington Veterans Employment and Re-employment Act (VERA), both of which require military leave for employees under certain circumstances.