On January 28, President Bush expanded leave entitlements under the federal Family and Medical Leave Act (FMLA) through his signing of the National Defense Authorization Act (NDAA) for Fiscal Year 2008. (The NDAA is an annual act that authorizes various requirements for National Defense.) The FMLA leave provisions incorporated into the law are designed to provide assistance to service members and their families with some of the hardships that can result from military service. The two new categories of leave are "caregiver leave" and "active duty leave." It is important to note that only the "caregiver leave" portion of the law is effective immediately. The "active duty leave" portion will not be effective until the Secretary of Labor publishes guidance and procedures for such leave.

Caregiver Leave: This portion of the NDAA allows a "spouse, son, daughter, parent or next of kin" to take up to 26 weeks of leave to care for a member of the Armed Forces, including a member of the National Guard and Reserves, who is undergoing medical treatment, recuperation or therapy, is otherwise on outpatient status, or is otherwise on the temporary disability retired list, for serious injury or illness. Employers may still implement FMLA procedures like requiring substitution of paid leave and notice, for example. The leave is available on an intermittent basis, but is only available for use in a single 12 month period.

Active Duty Leave: This category of leave would address situations in which an employee faces "any qualifying exigency" arising out of the fact that the "spouse, or son, daughter, or parent of the employee is on active duty or has been notified of an impending call or order to active duty." The term "any qualifying exigency" has not yet been defined by the Secretary of Labor and this provision will not be effective until definitive regulations are published. In the interim, the Department of Labor encourages employers to use good faith efforts to provide active duty leave to qualifying employees.

Employers will need to amend their FMLA policies to incorporate the new provisions and add the insert to their current FMLA poster.