On January 28, 2008, President Bush signed into law the National Defense Authorization Act, which amends and expands the Family Medical Leave Act (FMLA) to provide leave rights to family members of those in the Armed Forces. The new amendment entitles employees to 12 weeks of leave due to any “qualifying exigency” arising out of the fact that an employee’s family member is on active duty or has been notified of an impending call to active duty in the Armed Forces. What constitutes a “qualifying exigency” will be determined when the Department of Labor (DOL) issues its implementing regulations.

The Act also entitles immediate family members and next of kin to 26 weeks of leave during a 12 month period to care for covered servicemembers. The term “covered servicemember” means 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 terms of the Act are effective immediately, and the DOL is working to issue implementing regulations. The regulations should clarify many of the uncertainties created by the statutory amendments and provide additional guidance to employers. In the interim, the DOL advises employers to act in good faith and to follow “FMLA-type procedures” where appropriate, as the Act amends the FMLA. The DOL also warns that the term “qualifying exigency” is not effective until the DOL issues regulations defining the term, but that, in the interim, employers are encouraged to provide this type of leave to qualifying employees.

On a related note, FMLA regulations have almost single handedly guided employers in their efforts to comply with the FMLA. And, on that front, the DOL has sent proposed FMLA regulatory amendments – which should clarify some of the more familiar areas of employer confusion under the FMLA – to the Office of Management and Budget. Those regulations will be available in the Federal Register shortly.