Effective January 28, 2008, the Family and Medical Leave Act of 1993 (FMLA) was amended by the National Defense Authorization Act for Fiscal Year 2008 (NDAA) to allow a “spouse, son, daughter, parent, or next of kin” to take up to 26 work weeks 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.” This leave is only available during a single 12 month period and the employer may require that the request for this leave be supported by a certification issued by the health care provider of the son, daughter, spouse, parent, or next of kin of the employee.

Additionally, the FMLA was amended by the NDAA to allow employees to take its original leave of 12 work weeks during any 12 month period “because of any qualifying exigency (as the Secretary shall, by regulation, determine) 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.” The U.S. Secretary of Labor has not issued a regulation to determine what is a qualifying exigency, but it is encouraging employers to provide this type of leave to qualifying employees.

The U.S. Department of Labor is working in the preparation of guidance and/or regulation on these amendments to the FMLA. However, in the interim, employers must follow established FMLA procedures, as appropriate, and act in good faith in providing these new types of leave. Nolla, Palou & Casellas, LLC will closely follow any developments in this area and suggest that covered employers revise their current leave policies in order to incorporate the provisions of these amendments.