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FMLA Expanded By National Defense Authorization Act To Provide Military Family Leave

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On January 28, President George W. Bush signed into law the National Defense Authorization Act for Fiscal Year 2008, which expands the federal Family and Medical Leave Act (FMLA) in two important ways, both of which are intended to assist service members' families.


1. Active Duty Leave. Eligible employees with a spouse, child, or parent who is on, or has been called to, active duty in the Armed Forces may take up to 12 weeks of unpaid leave upon experiencing a "qualifying exigency." The term qualifying exigency is yet to be defined; the Department of Labor (DOL) is expected to issue proposed regulations in the coming weeks that will do just that.


When the need for leave is foreseeable, the employee must provide the employer with "reasonable and practicable" notice. Also, an employer may require that a request for leave be supported by certification.


2. Caregiver Leave. Eligible employees who are the spouse, child, parent, or "nearest blood relative" of a service member who has incurred a "serious illness or injury" while on active duty in the Armed Forces are permitted to take up to 26 weeks of unpaid leave in a single 12-month period to care for the injured service member.


A serious illness or injury is defined as one that was incurred in the line of active duty that renders the service person medically unfit to perform the duties of his/her office, grade, rank, or rating.


Here, too, an employer can request certification of the need for leave.


Note: Both active duty leave and caregiver leave can be taken on an intermittent or reduced leave basis. In addition, an employee may elect, or an employer may require the employee, to substitute accrued paid leave for either active duty or caregiver leave.

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