One of the FMLA-related provisions in the legislation will allow employees to take 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."

The other FMLA-related provision amends the FMLA to give more leave to employees whose family members are injured while serving in the military.  The provision reads:  "An eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered service member shall be entitled to a total of 26 workweeks of leave during a 12-month period to care for the service member.  The leave described in this paragraph shall only be available during a single 12-month period."

A covered "service member" is defined as 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."   For purposes of this legislation, "serious injury or illness" is defined as "an injury or illness incurred by the member in line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member's office, grade, rank, or rating."

The legislation also created a new category of eligible employee entitled to FMLA leave to care for an injured service member.  In addition to spouse, son, daughter, or parent, the legislation permits someone who is the "next of kin" to take FMLA leave for this purpose.  Next of kin is defined as the nearest blood relative to the service member.

Therefore, Employers with ( 50 or more employees ) - The provisions in the National Defense Authorization Act 2008  providing this leave are effective as of the date of the President’s signing. The Department of Labor is working quickly to prepare more comprehensive guidance regarding rights and responsibilities under this new legislation. In the interim, the Wage & Hour Division will require employers to act in good faith in providing leave under the new legislation. Because the NDAA amends the FMLA, FMLA-type procedures should be used as may be appropriate (for example, procedures regarding substitution of paid leave and notice).

Synopsis of the Law

Covered employers must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:

·         for the birth and care of the newborn child of the employee;

·         for placement with the employee of a son or daughter for adoption or foster care;

·         to care for an immediate family member (spouse, child, or parent) with a serious health condition; or

·         to take medical leave when the employee is unable to work because of a serious health condition.

 

 

Questions & Answers - Please Read - All of your questions are answered below.

 

Q: What are the new FMLA changes ?  -  ( Employers with 50 or more Employees )

 

1. Leave for “Qualifying Exigency”: The law modifies the FMLA by adding a new qualifying event for the 12-weeks of FMLA leave: a “qualifying exigency” (to be determined by the Secretary of Labor) arising out of the fact that the employee's spouse, child or parent 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.  When an employee requests leave for a qualifying exigency and the necessity for the leave is foreseeable, the employee must provide the employer with “reasonable and practicable” notice. Additionally, an employer may require that a request for leave for a qualifying exigency be supported by a certification that the service member is on active duty or has been called to active duty. By its express terms, this provision of the NDAA is not effective until the Secretary of Labor issues final regulations defining “any qualifying exigency.”

2. Leave to Care for Injured Service member: The law also provides that the spouse, child, parent, or “next of kin” (defined as the “nearest blood relative”) of a “covered service member” is entitled to a total of 26 workweeks of leave during a 12-month period to care for the service member. “Covered service member” means a service member who is “undergoing medical treatment, recuperation, or therapy, is otherwise in an outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.” “Serious illness or injury,” in turn, is defined as a condition that may render the service member “medically unfit to perform the duties of the member's office, grade, rank, or rating.” This leave is only available during a single 12-month period, and the 26-week limit would include any leave granted pursuant to the new “qualifying exigency” provision.

 

Q: When will the new FMLA law take effect ? -    ( Employers with 50 or more Employees )

A: President Bush signed the Act into Law - effective date commencing January 28, 2008.

Q: Will the new Act / Legislation require our company to post a new updated Federal Family and Medical Leave poster ?

A: Yes,  The information on the poster will need to be updated to include these additional employee leave rights under the new FMLA - National Defense Authorization Act 2008  ( H.R. 4986 ). However, at this time it is unclear whether the Department of Labor will issue a supplemental poster or an updated version of the current (Revised 2001) poster.

Q: Will our States FMLA Law Be effected by the New Federal Revisions ?

A: Most State FMLA posters will not be affected by the New Federal Law. However, many states may pass or revise their own FMLA / Military Revisions to their current laws and these may require a new State Poster.