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National Defense Authorization Act Amends FMLA

In December, we notified you that the U.S. House of Representatives had passed legislation which would amend the Family and Medical Leave Act (FMLA). On Monday, January 28, President Bush signed that legislation, the 2008 National Defense Authorization Act (NDAA). The NDAA is significant because it is the first expansion to the FMLA. The NDAA amends the FMLA to cover family members of individuals serving in the military. Specifically, the NDAA creates two new categories of FMLA leave.

 

Leave to Care for Family Member With Service-Related Injury or Illness

 

The NDAA amends the FMLA to allow a "spouse, son, daughter, parent, or next of kin" to take up to 26 weeks 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." The NDAA defines "next of kin" (another expansion of the FMLA) as an individual's "nearest blood relative."

 

The 26 weeks of leave may be taken intermittently or on a reduced schedule, but may be taken only during one 12-month period. The 26-week limit includes any other FMLA leave taken in that period. So, for example, if an employee who is "next of kin" to an injured service member had already taken six weeks of FMLA leave because of the employee's own serious health condition, the employee could take up to 20 more weeks of leave related to the service member's disability. This legislation represents an expansion from the typical 12-week limit of FMLA leave.

 

This amended provision of the FMLA is effective immediately.

Family Leave for 'Service Related Exigencies'

 

The NDAA further amends the FMLA to allow employees to take FMLA leave: ". . . Because of any qualifying exigency (as the Secretary shall, by regulation, determine) 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 new category of leave may also be taken intermittently or on a reduced schedule, and counts toward the normal 12-week maximum for annual leave, or toward the new 26-week maximum where leave to care for an injured service member is used.

 

This provision of the amended FMLA is not effective until the Secretary of Labor issues final regulations defining the term "any qualifying exigency."

 

In connection with this new category of leave, "An employer may require that a request for leave . . . be supported by a certification issued at such time and in such manner as the Secretary may by regulation prescribe. If the Secretary issues a regulation requiring such certification, the employee shall provide, in a timely manner, a copy of such certification to the employer."

If you have any questions regarding this, or any other legal issue, please feel free to contact a member of Greenebaum's Labor and Employment Practice Group. Click here for a complete roster.

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