On January 28, 2008, President Bush signed the National Defense Authorization Act for FY 2008 (NDAA) (P.L. 110-181), which includes the first-ever expansion of the Family and Medical Leave Act (FMLA). Under the new law, eligible employees are entitled to take FMLA leave relating to a covered family member's service in the Armed Forces. Specifically, leave is available in two situations:
- Qualifying exigency. An eligible employee may take up to 12 weeks of FMLA leave during any 12-month period for "any qualifying exigency" arising from the fact that the employee's spouse, son, daughter or parent is on (or called to) active duty in the Armed Forces in support of a contingency operation. The term "any qualifying exigency" is not explained in the law, however. This provision will become effective after the U.S. Department of Labor (DOL) issues final regulations defining "any qualifying exigency."
- Care for injured or ill service member. An eligible employee, who is the spouse, son, daughter, parent or next of kin of a member of the Armed Forces (including the National Guard or National Reserves), may take up to 26 weeks of FMLA leave during a single 12-month period to care for a covered service member. The leave applies to service members who, for a serious injury or illness, are undergoing medical treatment, recuperation or therapy, or are otherwise in outpatient status or on the temporary disability retired list. The injury or illness must be incurred by the service member in the line of active duty and have the potential to render the service member unfit to perform the duties of his or her office, grade, rank or rating. This provision became effective when the law was signed.
Because the NDAA amends the FMLA, general FMLA procedures (such as those relating to notices and substitution of leave) must be used as appropriate. Other FMLA requirements (such as restoring a returning employee to an equivalent position and maintaining group health coverage for the employee) continue to apply.
In late 2008, the Department of Labor issued revised FMLA regulations that address the new law and many other issues that pertain to compliance and court cases.