On January 28, 2008, President Bush signed the National Defense Authorization Act of 2008 (“NDAA”).  While the primary focus of the NDAA is to provide for defense funding for the United States and its interests abroad, the NDAA contained an important provision for all employers. Effective immediately, the NDAA amends the Family and Medical Leave Act (“FMLA”) to permit 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.”   Â
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In addition to the foregoing, the NDAA will soon permit employees to take FMLA leave for “any qualifying exigency (as the Secretary [of Labor] 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.”  By its express language, this latter provision in the NDAA is not effective until the Secretary of Labor is able to issue final regulations defining “any qualifying exigency.” Nevertheless, employers may wish to provide leave for “any qualifying exigency” in the interim.
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The Department of Labor (“DOL”) has indicated that it will work quickly and expeditiously to prepare and issue regulations related to the NDAA amendment, including comprehensive guidance defining both employee rights and employer responsibilities.  In the interim, the DOL has emphasized that employers should act in good faith while administering leave under the FMLA when the care of a member of the Armed Forces is at issue.  The DOL further urges employers to use FMLA-type procedures in these instances as appropriate (for example, procedures regarding substitution of paid leave and notice).
 Until the DOL issues its final regulations on the NDAA, the impact of the NDAA on FMLA remains uncertain.  Employers should be careful to review existing obligations under the FMLA and process claims for leave related to the care of a member of the Armed Forces very carefully. Employers should be mindful that the stated public-interest purpose behind FMLA and the NDAA amendments are to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity. Leave under the FMLA is intended to accommodate an employee’s need for reasonable leave and the employer’s legitimate business interests, while it promotes the goal of equal employment opportunity for those who may need reasonable leave.
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