On January 28, 2008, President Bush signed the 2008 Defense Authorization Act (H.R. 4986), which amended the Family and Medical Leave Act ("FMLA") to provide two new leave rights to employees with family members in the Armed Forces.

First, eligible employees may take up to 26 weeks of military family leave in a single 12-month period to care for family members injured during military service.  A “spouse, son, daughter, parent, or next of kin” may take this leave to care for a member of the Armed Forces, including the National Guard or Reserves, suffering from a serious injury or illness.  “Serious injury or illness" means an injury or illness incurred on active duty that may render the service member medically unfit to perform the duties of his or her office, grade, rank, or rating. 

Second, an employee may take up to twelve weeks of military family leave for “any qualifying exigency" arising out of the fact that the spouse, son, daughter, or parent of the employee is on active duty or has been notified of an impending call to active duty in the Armed Forces in support of a contingency operation.  Although the FMLA amendments relating to leave to care for an injured service member are effective immediately, the meaning and scope of a “qualifying exigency” and the rights and obligations related to that prong of the new military family leave will not become effective, according to the Department of Labor, until the Secretary of Labor issues new regulations defining qualifying exigencies.

On February 11, 2008, the DOL issued a Notice of Proposed Rule Making (“NPRM”) that addresses the definition of “qualifying exigencies.”  The DOL has invited comment on the meaning of “qualifying exigencies” as well as other proposed regulations relating to military family leave.  The NPRM suggests that qualifying exigencies related to deployment might include the following: making arrangements for child care, making financial and legal arrangements to address the service member’s absence, attending counseling related to the active duty of a service member, attending official ceremonies or programs where the military requests participation of family members, and attending farewell or arrival arrangements for a service member.

The NPRM also proposed certain changes to existing regulations under the FMLA.  Some of the more significant proposed changes would establish (1) that light duty work does not exhaust FMLA leave, (2) that time on FMLA leave may be counted against an employee in granting awards based on attendance, and (3) that, contrary to a recent Fourth Circuit Court of Appeals ruling, employees may voluntarily settle claims based on alleged past FMLA violations.  As mentioned, these changes to the FMLA regulations are only “proposed” at this time.  We will publish a more detailed description of the final regulations when they are issued.

In the meantime, employers should be alert for leave requests that might qualify for one of the military family leaves described above and have an action plan in place to deal with such requests and should consult counsel in questionable circumstances in order to avoid liability under the FMLA.

For more information on the FMLA or other employment law related issues, please contact David Woodard at dwoodard@poynerspruill.com or at 919.783.2854 or Kevin Ceglowski at kceglowski@poynerspruill.com or 919.783.2853.