After vetoing the National Defense Authorization Act for FY 2008 (NDAA) earlier this month because of concerns over an unrelated provision dealing with Iraqi liability, President George W. Bush signed a revised NDAA into law on January 28, 2008. Section 585 of the NDAA amends the FMLA to permit a “spouse, son, daughter, parent, or next of kin” to take up to 26 work weeks of leave 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.”

Employers should immediately advise their human resources department about this expanded scope in coverage. The FMLA amendment in the NDAA providing this leave is effective immediately. While the Department of Labor is currently in the process of preparing better guidance regarding rights and responsibilities under the new legislation, employers will still be liable for any violations of the new laws in the absence of comprehensive guidance.

The new amendment allows an employee to take FMLA leave for “any qualifying exigency (as the Secretary [of Labor] shall, by regulation, determine) 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.” By its express terms, this provision of the NDAA is not effective until the secretary of Labor issues final regulations defining “any qualifying exigency.”