On January 28, 2008, President Bush signed an amendment to the Family and Medical Leave Act (FMLA) that extended greater protections to military families.  The amendment (H.R. 4986, the National Defense Authorization Act for FY 2008 (NDAA), Pub. L. 110-181) allows an employee to take up to 26 workweeks of leave to care for an injured or ill member of that employee’s immediate family who is a “covered service member” in the military.  The NDAA also permits an employee to take 12 weeks of FMLA leave for "any qualifying exigency" arising out of the fact that an immediate family member in the military is on active duty or has been notified of an impending call or order to active duty in support of a contingency operation.

The Family and Medical Leave Act (FMLA), which generally applies to employers who employee 50 or more people, was enacted in 1993 to provide employees with family and temporary medical leave under certain circumstances.  Eligible employees can take up to 12 weeks of unpaid 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 for 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 new provisions expand FMLA leave coverage.

The provisions for leave to care for an injured or ill military service member became effective on January 28, 2008.  Employees who are allowed to take this leave are limited to a "spouse, son, daughter, parent, or next of kin [the nearest blood relative]" of the injured or ill service member.  Covered service members are those in the Armed Forces, including members of the National Guard and Reserves.  To qualify for this leave, the Armed Forces member requiring care must be "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 injury or illness" is "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."  While the Department of Labor prepares guidelines for these new measures, employers will be required to act in good faith in providing leave pursuant to the new regulation.  Because this leave is FMLA leave, the same procedures should be used where appropriate.

The provisions for leave pursuant to "any qualifying exigency" arising out of a family member’s actual or impending active duty are not effective until the Secretary of Labor issues final regulations that define "any qualifying exigency."  The amendment does not define this phrase.  Although not yet mandatory, the Department of Labor encourages employers to provide such leave to qualifying employees in advance of the final regulations.  For an employee to qualify, his or her "spouse, or a son, daughter, or parent" must be called to active duty.