AMENDMENT TO THE FAMILY AND MEDICAL LEAVE ACT OF 1993
On January 28, 2008, President Bush signed into law the National Defense Authorization Act for FY 2008 ("NDAA") (H.R. 4986). Section 585 of the NDAA amends the Family and Medical Leave Act of 1993 ("FMLA") in two significant ways. First, it entitles eligible family members to take up to 26 weeks of unpaid leave to care for a wounded servicemember ("Caregiver Leave"). Second, it also entitles eligible family members to take up to 12 weeks of unpaid leave for a "qualifying exigency" related to the active duty status of certain individuals ("Active Duty Leave").
26 Weeks of "Caregiver Leave"
"Caregiver Leave" requires employers to provide up to 26 weeks of unpaid leave during a single 12-month period for an eligible employee who is the spouse, son, daughter, parent, or next of kin [nearest blood relative] of a "covered servicemember" to care for the "covered servicemember."
An eligible employee now may elect to take 26 weeks of unpaid leave for "Caregiver Leave" or 12 weeks of unpaid non military-related leave pursuant to traditional FMLA standards and 14 additional unpaid weeks for "Caregiver Leave" created by this amendment. An eligible employee may not take more than a total of 26 weeks in any 12-month period.
This addition to federal leave laws went into effect immediately upon the signing of the NDAA by the President (January 28, 2008).
12 Weeks of "Active Duty Leave"
"Active Duty Leave" requires employers to provide up to 12 weeks of unpaid leave during a single 12-month period in addition to previously authorized reasons "[b]ecause 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 Department of Labor ("DOL") is currently drafting regulations to define the term "qualifying exigency," which was not defined by the NDAA. Although "Active Duty Leave" will not go into effect until the DOL issues its final regulations, the DOL's Wage and Hour Division is encouraging employers to provide this leave now. The amendments to the FMLA raise many questions/ambiguities which hopefully will be addressed in the DOL's regulations.
What Employers Need to Know
In addition to the two new leaves running concurrently with other FMLA leave: (1) they may be taken intermittently or on a reduced leave schedule; (2) an employer may require that a request for "Active Duty Leave" be supported by a certification (specifics of which to be determined by the DOL) and a request for "Caregiver Leave" be supported by a health care provider certification; and (3) other FMLA requirements, such as those regarding reinstatement to the previous position, substitution of paid leave, and advance notice where practicable also apply to these two new leaves.
ADDITION TO CALIFORNIA MILITARY AND VETERANS CODE
Effective October 9, 2007, Section 395.10 was added to the California Military and Veterans Code. Section 395.10 requires employers with 25 or more employees to provide any employee who works an average of 20 or more hours per week and whose spouse is a member of the Armed Forces of the United States, National Guard or Reserves, who has been deployed during a time of military conflict, up to 10 days of unpaid leave when his or her military spouse is on leave from deployment. The employee must give notice to the employer within two business days of receiving official notice that the spouse will be on leave and certify in writing that the spouse will be on leave from deployment during the time leave is to be taken. The leave under Section 395.10(d) does not otherwise affect an employee's entitlement to any other form of leave that the employee is entitled to take and is in addition to the recent amendments to the FMLA.
What Employers Should Do
Employers should amend their leave policies and procedures to reflect these new changes. Employers should also act in good faith when requested to provide the "Active Duty Leave" pending the DOL's regulations and consult with experienced employment law counsel. Although there is no "penalty" (yet) for failing to provide these military-related leaves, the DOL is considering monetary damages up to 26 weeks of wages.
We will provide further updates as additional information becomes available. The DOL's website contains additional information regarding the FMLA amendments at www.dol.gov/esa/whd/fmla/NDAA_fmla.htm.
Veronica M. Gray is Chair of Nossaman's Employment Practice Group and represents employers in all areas of employment law. She can be reached at (949) 477-7663 or firstname.lastname@example.org.
 "Covered servicemember" is defined as a member of the "Armed Services, 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." (Emphasis added.) [In contrast, the FMLA (as well as the California Family Rights Act) uses the term "serious health condition."] "A serious injury or illness" is defined as "an injury or illness incurred by the member in line of duty or active duty…", which would include combat and noncombat related injuries/illnesses.
 Prior to the NDAA, eligible employees were entitled to up to 12 workweeks of unpaid FMLA leave during any single 12-month period for one or more of the following reasons: (1) birth of a child of the employee and in order to care for such child; (2) placement of a child with the employee for adoption or foster care; (3) in order for the employee to care for his or her spouse, son, daughter, or parent who has a serious health condition; or (4) the employee's own serious health condition.
 The DOL has acknowledged that comments by members of Congress indicate that the intent is to provide assistance to families who must address issues related to the servicemember's deployment.
 Assembly Bill 2134, currently pending in the California legislature, would conform the types of leave available under California law to the revised federal law and would expand the eligibility for the military service-related leave provisions to include an employee who is the grandparent, grandchild, or sibling of the service member.