New Amendments to FMLA – Leave for Families of Service Members

On January 28, 2008, President Bush signed into law the National Defense Authorization Act for 2008. Effective immediately, this law amends the federal Family and Medical Leave Act of 1993 (“FMLA”) in two ways. The FMLA now contains provisions that:

  1. Permit a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks 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;” and
  2. Allow up to 12 weeks of leave because of 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.

In sum, for employers covered under FMLA, the law increases the available time off from work for caregivers of injured service members from 12 to 26 weeks per year. The law also creates a new category of employees eligible for up to 12 weeks of FMLA leave—those who have immediate family members on active duty, or impending active duty.

The Department of Labor (“DOL”) has not yet issued any guidance regarding rights and responsibilities under this new legislation. The call-to-active-duty family leave provision will not be effective until DOL issues final regulations defining “any qualifying exigency.” In the interim, DOL encourages employers to act in good faith to provide this type of leave to qualifying employees. Other FMLA provisions, such as the requirements to restore returning employees to the same position as when their leave commenced and to continue group health plan coverage during leave, apply to these new categories of FMLA leave. Employers covered by FMLA will need to review and revise their FMLA policies, provide employees with notice of these changes, and watch for pending guidance from DOL.


This Employment Law Note is written to inform our clients and friends of developments in labor and employment relations law. It is not intended nor should it be used as a substitute for specific legal advice or opinions since legal counsel may be given only in response to inquiries regarding particular factual situations. For more information on this subject, please call Sebris Busto James at (425) 454-4233.