National Defense Authorization Act
On January 28, 2008, the National Defense Authorization Act became law, amending the Family Medical Leave Act (FMLA). Among other things, this law permits eligible employees who are family members of military personnel to take a combined leave of up to 26 weeks to care for their family members who have been wounded during active military duty. This, of course, assumes that the employer is covered under FMLA and that the employee is otherwise eligible to take FMLA leave.
For purposes of this new legislation, an eligible employee is defined as one who is the spouse, child, parent, or next of kin of a “covered servicemember”. A “covered servicemember” is “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 Act does not permit employees to take leave to care for a reservist who is injured while performing regular reserve duties. If, however, a reservist is injured while performing the usual reserve duties, the reservist or family member will still be entitled to 12 weeks of FMLA leave, if otherwise eligible.
Under the new Act, an employee may elect, or an employer may require, substitution of any of the employee’s accrued vacation, paid time off, personal leave, family leave, medical or sick leave for any part of the protected 26-week period.
The Amendment requires that when such leave is foreseeable, the employee must provide such notice to the employer as is reasonable and practicable. An employer may also require that an employee’s request for leave related to active duty or a call to active duty be supported by a certification.
The leave provided by this Act is separate from the law recently passed by California, which provides up to ten days of unpaid leave to the “qualified spouse” of a member of the Armed Services, National Guard or Reserves who is on leave from deployment during a period of military conflict.
The U.S. Department of Labor is expected to issue regulations soon with respect to this amendment. Until then, employers should proceed with caution in their handling of an employee’s request for military-related leave to assure compliance with the new Act. Impacted employers should take immediate steps to train their human resources personnel on the Act’s requirements and amend existing policies and distribute them to their employees so that they become aware of these new rights.