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On Jan. 28, President George W. Bush signed H.R. 4986, the National Defense Authorization Act of 2008, into law. What does the NDAA have to do with the Family and Medical Leave Act?

Well, part of the NDAA amended the FMLA to address military-related leave issues. Specifically, the FMLA has been modified to require that businesses subject to the FMLA:

Provide eligible employees who are the spouse, son, daughter, parent or next of kin (closest living blood relative) of a wounded U.S. military member with up to 26 weeks of unpaid leave during any 12-month period to care for such a wounded individual (caregiver leave); and

Provide eligible employees who are immediate family members (spouse, son, daughter or parent) of soldiers, reservists, and/or members of the National Guard with up to 12 weeks of unpaid leave within a 12-month period when there is a “qualifying exigency” related to an individual’s impending call to active duty and/or being put on active duty (active duty leave).

The U.S. Department of Labor has indicated that the caregiver leave provisions of the amendment are effective immediately. In order for caregiver leave to apply, the covered service member must be suffering from a “serious injury or illness” – the amendment addresses serious injury or illness not “serious health condition,” which is required for other FMLA leave. A serious injury or illness is “an injury or illness incurred by the member in the 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.” Before an employer passes judgment on whether a serious injury or illness was incurred in the line of duty, consultation with counsel should take place, as “in the line of duty” does not exclusively mean “during combat.”

With respect to the newly introduced active duty leave, “qualifying exigency” has not yet been defined. The Labor Department, the agency responsible for issuing regulations related to the FMLA, recently set forth proposed regulations that, for the first time in about 13 years, will address certain issues under the FMLA. Interestingly, given the timing of the issuance of the DOL’s proposed regulations and the passage of the NDAA, the proposed regulations do not specifically address the definition of “qualifying exigency.” Rather, the DOL has summarized the changes created by the NDAA and seeks comments in connection with implementation of the final regulations as they pertain to the NDAA’s changes.

What employers need to know first and foremost is that the passage of the NDAA does not alter any of the other aspects or requirements of the FMLA. Accordingly, employers are well-advised to continue applying the FMLA as they have done previously. Employers must, however, immediately provide caregiver leave in addition to other FMLA-based leave. Though active duty leave does not go into effect until the Labor Department has issued final regulations on that topic, the DOL has encouraged employers to provide active duty leave immediately.

Clearly, an employer can easily find itself in a quandary if it decides to follow the Labor Department’s prompting and provide active duty leave immediately but does not adopt uniform policies with respect to such leave. If an employer does heed the Labor Department’s encouragement, it must put a policy in place to avoid inconsistent treatment of its employees who seek such leave.

Further, until the Labor Department has issued its final regulations that will, hopefully, provide the necessary guidance on the application of active duty leave, the employer should identify a single person or a small, well-integrated team of people to handle such active duty leave requests. Because active duty leave is based, in part, on a somewhat ambiguous term – “qualifying exigency” – there needs to be consistency with how that term is defined and applied by the employer. One person may look at a circumstance as constituting a qualifying exigency while the next person may reach the exact opposite conclusion. Presumably, the Labor Department’s final regulations will remove such potential inconsistent application from the process, but until then, employers must create their own consistent application. As such, a single person or a small team of individuals who communicate well is needed. By putting such gatekeeper(s) in place, an employer should avoid finding itself on the wrong end of a lawsuit involving inconsistent application of the FMLA.

Of course, employers might consider taking an entirely different route – not providing active duty leave until the Labor Department issues its final regulations. Although there appears to be no legal impediment to doing so, there are, of course, societal issues that argue against such a position. First, not providing such leave could be seen as undermining the military services. Regardless of one’s political views, few people want to see the individual men and women of the uniformed services adversely impacted in any way. Second, there are company morale issues – does the employer want to be one of the companies that does not provide the leave despite the fact that it is law and will become enforceable at a later point in time?

Third, perhaps an employer can use it as a selling point to attract employees. Fourth, although active duty leave is not required until the Labor Department has issued its final regulations, the Labor Department has expressed a desire that employers provide it sooner rather than later. In the end, it is the employer’s decision as to whether it wants to implement active duty leave prior to issuance of the Labor Department’s final regulations.

In the NDAA, the government has included certain military-related events as giving rise to the right to FMLA leave. Employers must be aware of this. In order to comply with the FMLA, employers must immediately provide caregiver leave – as such, employers should, if they have not done so already, amend their FMLA policies to provide for such leave. The issue becomes a bit trickier when an employer considers its obligation to provide active duty leave. The fact is an employer does not need to provide this leave until the Labor Department issues its final regulations addressing such leave and a key term, qualifying exigency, for such leave. That said, both the DOL and, arguably, society are lobbying for implementation immediately. Should an employer opt to provide this form of leave prior to the issuance of the final regulations, the employer must be circumspect in doing so. Any form of ad hoc implementation risks a discriminatory application of such rights.


TODD ALAN EWAN is a partner in the labor and employment law practice group of Mitts Milavec. Ewan advises and counsels clients in various aspects of the employer-employee relationship, including personnel policies, employment contracts, severance agreements, and noncompetition, nonsolicitation and nondisclosure agreements.

CAROLYN M. PLUMP is a partner in the firm’s labor and employment law practice group. Plump has successfully negotiated labor contracts, counseled clients regarding regulatory compliance, prepared corporate employment policies and handbooks, conducted investigations, and advised companies regarding the hiring, firing and disciplining of employees. She has significant experience representing clients in litigation, mediation and arbitration matters in federal court and before administrative agencies involving Title VII, FLSA, FMLA, ADEA, ADA, OSHA and the WARN Act.

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