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Jan 2008
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January 31, 2008

National Defense Authorization Act Amends FMLA

On Monday, January 28, President Bush signed the 2008 National Defense Authorization Act (NDAA). The NDAA includes the first expansion of the Family and Medical Leave Act (FMLA) since the law's passage in 1993. The amendment creates two new categories of FMLA leave for family members of individuals serving in the U.S. military.

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."

This new category of leave is an exception to the normal 12-weeks-per-year limit on FMLA leave. 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 amended provision of the FMLA is effective immediately. The Department of Labor states that federal officials are working to provide additional guidance and that in the meantime employers are to "act in good faith in providing leave under the new legislation."

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 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."

The United States Department of Labor-Wage Hour Division has issued a release describing the NDAA amendments to the FMLA, including a copy of the Act as amended, at http://www.dol.gov/esa/whd/fmla/NDAA_fmla.htm.

The NDAA makes significant changes to the FMLA, some of which are in effect now. Human resources managers should familiarize themselves with these changes. Call any member of Warner Norcross & Judd's Labor and Employment Group for assistance with this task.
 

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