On January 28, 2008, President Bush signed the National
Defense Authorization Act for FY 2008, Pub. L. 110-181, which
contained provisions expanding the leave available to certain
family members of an individual in the Armed Forces under the
Family and Medical Leave Act of 1993 (FMLA).
Leave To Care For Injured Service-Member
Under the new law, employers must provide up to 26 workweeks
of leave to a qualifying employee 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." A qualifying employee includes the "spouse,
son, daughter, parent, or next of kin" of the
service-member. This leave may be taken intermittently or on a
reduced leave schedule when medically necessary.
An employer may require the employee to substitute any
accrued paid vacation leave, PTO, family leave, or medical or
sick leave for any part of the 26-week period. An employer is
not required to provide paid sick leave or paid medical leave
in any situation in which the employer would not normally
provide such leave.
Leave To Spend Time With Family Member Called To Or On
Leave From Active Duty
This provision requires employers to provide leave for
"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." "Any qualifying exigency," has not
been defined, however, it is generally understood to include a
service-member's deployment and leave from active duty.
When such leave is foreseeable, the employer may require an
employee to provide reasonable and practical notice to the
This provision is not effective until the Secretary of Labor
issues final regulations defining "any qualifying
exigency," however, employers are encouraged to provide
leave to qualifying employees to spend time with a family
member prior to deployment or on leave from active duty.
These amendments do not affect the majority of FMLA
provisions, including those addressing employer coverage,
employee eligibility requirements, health insurance
continuation, and reinstatement rights.
An employer who employs both a husband and a wife entitled
to either type of leave described above, may aggregate the
husband and wife's leave.
An employer may require that a request for leave be
supported by a certification 1) issued by the health care
provider of the eligible employee or of the son, daughter,
spouse, or parent of the employee, or of the next of kin of an
individual, in the case of leave taken to care for a service
member; or 2) issued at such time and in such manner as the
Secretary of Labor may by regulation prescribe, in the case of
leave taken for any qualifying exigency.
In response to these amendments, employers should:
Amend their FMLA policies to provide employees with leave
required by the amended FMLA, and
Notify employees of these new leave entitlements.
The content of this article is intended to provide a
general guide to the subject matter. Specialist advice should
be sought about your specific circumstances.
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It is important that you have updated financial powers of attorney and New Hampshire Advance Directives, clearly nominating your spouse (or another) as the primary person to make decisions in the event of incapacity.