On January 28, 2008, President Bush signed into law the Support for Injured Servicemembers Act ("the Act") as part of the updated Defense Authorization Bill for Fiscal Year 2008 (Public Law 110-181). The Act provides leave under the Family and Medical Leave Act ("FMLA") to employees with family members in the military — creating new entitlements to protected FMLA leave for eligible employees. In addition to leave on the occasion of the birth or placement for adoption or foster care of a child, in order to care for a spouse, son, daughter or parent with a serious health condition, or because of the employee's own serious health condition (all of which were previously covered), the new provisions provide leave for eligible employees under the following circumstances:

1. Employees who are the spouse, child or parent of servicemembers in the Armed Forces (including members of the National Guard or Reserves) may take up to 12 weeks of leave when the servicemember is notified of a call to duty or is on active duty. The leave is triggered by a "qualifying exigency" related to the servicemember's active duty — though what constitutes a "qualifying exigency" is still to be defined the Department of Labor. As with the existing provisions of the FMLA, employees must provide notice of the need for such leave, when possible, and employers may require certification of the need for the leave.
   
   
2. Effective immediately, eligible employees who are the spouse, child, parent or closest blood relative of servicemembers undergoing medical treatment, recuperation or therapy for a serious injury or illness incurred in the line of duty can take up to 26 weeks of leave during a 12-month period in order to care for the servicemember. Leave under this new caregiver provision is available only during a single 12-month period, and the combined FMLA leave total during the 12-month period cannot exceed 26 weeks.

Leave under these new provisions may be taken intermittently or on a reduced schedule when necessary. And, because this new law is an amendment to the existing statute, provisions regarding certification, eligibility for leave, substitution of paid leave, restoration to position, and other areas of the FMLA framework are applicable to these new provisions.

The Department of Labor is expected to issue regulations to define "qualifying exigency" and to provide additional guidance on these new leave provisions. We will keep you apprised of the status of these regulations and will be able to provide more information about the Act upon their issue. In the meantime, employers should modify their policies to reflect these new provisions and should make good faith efforts to comply with them when considering a leave request by a close relative of a servicemember.