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National Defense Authorization Act of 2008

On January 28, 2008 the Family and Medical Leave Act (FMLA) was amended by the National Defense Authorization Act for Fiscal Year 2008 (NDAA). FMLA was significantly amended by adding two new types of leave for employees that have immediate family members serving in the Armed Forces, including members of the National Guard or Reserves (hereinafter referred to as "Service Member"). The two new types of leave under FMLA are known as the Qualifying Exigency Leave and the Service Member Family Leave.

To whom does the Act apply?
The Act applies to all employers that have at least 50 employees within a 75 mile radius.

What does the Act require employers to do?
The Act requires employers to grant employees leave for either a Qualifying Exigency Leave or a Service Member Family Leave.

• Qualifying Exigency Leave. The Qualifying Exigency Leave allows an eligible employee to take 12 work weeks of leave during a 12-month period. A qualifying exigency occurs when the employee's spouse, son, daughter, parent or next of kin (deemed to be the nearest blood relative of the employee) is on active duty or received notification of a call or order to active duty in the Armed Forces in support of a "contingency operation."
• Service Member Family Leave. The Service Member Family Leave allows an eligible employee who is the spouse, son, daughter, parent or next of kin (deemed to be the nearest blood relative) of a covered Service Member to take up to 26 weeks of leave during a 12-month period. A covered Service Member is someone who is: undergoing medical treatment, recuperation or therapy, is in outpatient status or is on the temporary disability retired list for a serious injury or illness. A serious illness or injury under this provision is meant to be one that is suffered while on active duty "that may render the member medically unfit to perform the duties of the member's office, grade, rank or rating."

When does the Act go into effect?
For any leave classified as Service Member Family Leave, those provisions became effective as of January 28, 2008. For any leave classified as Qualifying Exigency Leave, compliance will not be required until the Department of Labor issues final regulations.

How does the Act impact employers?
Employers must review their plan documents to determine if plan amendments are needed to reflect compliance with these new provisions. In addition, employers will need to review their FMLA paperwork to determine if any changes are needed to those forms, as well as any marketing materials that may describe how FMLA works.

In addition, the DOL issued an insert employer's should post with their current FMLA poster. Employers should be sure to post this insert as any employer who willfully violates this requirement may be assessed a civil monetary penalty not to exceed $100 for each separate offense.

Additional information
The DOL issued proposed regulations which have not yet been finalized. When final regulations are announced, we will let you know.