On December 14, 2007, Congress passed the 2008 National Defense Authorization Act, which includes provisions amending the Family and Medical Leave Act of 1993 (“FMLA”) to allow employees to take 26 weeks of leave from work per year to care for injured service members who have a serious medical condition. The amendments also allow an eligible employee to take up to 12 weeks of leave because of any “qualifying exigency” arising out of the fact that a covered employee’s spouse, child or parent is on or has been called to active duty in the Armed Forces.

The new law covers leave to care for members of the Armed Forces, National Guard, and Reserves, who have suffered a serious injury or illness in the line of duty while on active duty. The serious injury must render the members medically unfit to perform the duties of their grade, office, rank, or rating. Additionally, service members who are undergoing medical treatment, therapy, are in outpatient status, or otherwise are on the temporary disability retired list, for a serious injury or illness also are included for eligible leave. For this type of leave, the statute expands the definition of covered employee to include the “next of kin,” or nearest blood relative, of a covered service member.

The amendments allow an eligible employee up to 12 weeks of leave if a member of the employee’s immediate family is called to active duty and that call to active duty causes a “qualifying exigency.” The Department of Labor has not yet defined a “qualifying exigency.” It appears this “qualifying exigency” provision was adopted to allow families of service members leave to adjust and prepare to the dynamic of having a family member away from home while on active duty.
The amendments did not change the hours worked, length of employment, or eligibility requirements for employees or employers. Because the National Defense Authorization Act amends the original 1993 FMLA statute, other FMLA requirements, such as the requirement that employers restore returning employees to the same position as when their leave commenced and continue group health plan coverage during the leave, will apply to employees eligible for the new types of leave.
In light of these amendments, employers covered by the FMLA should amend their FMLA policies to provide employees with notice of these new rights.
If you have questions about your company’s FMLA policies, please contact one of the employment law attorneys at Trepanier MacGillis Battina P.A.
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Minneapolis employment law attorney Craig W. Trepanier practices extensively in the field of employment law, including representing employees in FMLA matters and advising employers on their FMLA policies. Craig may be reached at 612.455.0502 or craig@trepanierlaw.com. Trepanier MacGillis Battina P.A. is a Minnesota employment law firm located in Minneapolis, Minnesota.