On January 28, 2008, President Bush signed into law the National Defense Authorization Act for FY 2008 (NDAA),
which, among other things, significantly expands the federal Family and Medical Leave Act of 1993 (FMLA) to provide
protected leave for employees with family members serving in the United States military. (The Uniformed Services
Employment and Re-employment Rights Act “USERRA” provides much broader leave rights for employees who
themselves perform military service and training.)

The FMLA already requires covered employers (private employers with 50 or more employees) to provide an eligible
employee (one who has worked for the employer a combined total of 12 months; has worked at least 1,250 hours in the
twelve months preceding the leave; and who works at a worksite with at least 50 employees within a 75-mile radius) up
to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:

• for the birth and care of the newborn child of the employee;
• for placement with the employee of a son or daughter for adoption or foster care;
• to care for a covered family member (spouse, child, or parent) with a serious health condition; or
• to take medical leave when the employee is unable to work because of the employee’s own serious health
condition.

The NDAA Amends The FMLA In Two Major Ways:

(1) To provide a spouse, son, daughter, parent or “next of kin” of a member of the U.S. military up to 26 weeks of
leave to care for the service member “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.” This is
being called the “caregiver” provision.
(2) To permit an employee to use the standard 12 weeks of FMLA leave for “any qualifying exigency (as the
Secretary [of Labor] shall, by regulation, determine) arising out of the fact that the spouse, 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.”
Although the amendment adds two new categories of qualifying leave, to the extent an employee also uses FMLA leave
for other qualifying reasons, the combined total of all of the FMLA-qualifying leave will be counted toward the
employee’s FMLA 12-week (or in the case of caregiver leave, 26-week) allotment.

The caregiver provision became effective on January 28, 2008, when President Bush signed the NDAA into law. The
Department of Labor (DOL) has not published regulations providing guidance on employee rights and employer
responsibilities under the caregiver provision. Until the DOL publishes such regulations, it is requiring employers “to act
in good faith in providing leave under the new legislation” and to use “FMLA-type procedures” as appropriate in
administering leave under this provision.

The qualifying exigency provision will not go into effect until the Secretary of the DOL issues regulations
defining “any qualifying exigency.” However, in the interim, the DOL is encouraging employers to provide this type
of leave to eligible employees until the regulations are available. Presumably, if such leave is requested by the employee,
and granted by the employer in good faith, prior to the effective date and the publication of the implementing regulations,
the time granted can be drawn down against the employee’s 12-week allotment.

What Employers Should Do Now:
Employers should immediately notify managers (and any other employees in decision-making roles) of the two new
categories of leave under the FMLA so they will recognize these newly protected absences. Employers should also
immediately amend their existing FMLA policies to include the two new categories of leave for eligible employees.
(Expect to make further revisions when the regulations are issued.)

Although employers have little guidance on administering these new leaves in the absence of regulations from the DOL,
here are a few things to keep in mind:

• The caregiver provision (alone) expands the traditional 12-week leave limit up to 26 weeks of unpaid leave
during one 12-month period.
• It appears that the FMLA allotment is all-inclusive, and that ALL categories of FMLA-qualifying leave will count
cumulatively toward the 12-week leave FMLA allotment (or 26-week allotment in the case of the caregiver
category).
• Similar to existing rules for baby bonding time and care for the employee’s own parent with a serious health
condition, spouses who both work for the same employer must share their caregiver leave (max. 26 weeks).
• The new legislation explicitly states that leave under the “qualifying exigency” provision may be taken
intermittently, conditioned only on the employee’s compliance with the notice and certification requirements of
the FMLA (which have yet to be determined for the “qualifying exigency” category).
• The legislation provides for intermittent leave in the caregiver category when it is medically necessary, similar to
the showing of medical necessity required to be granted intermittent leave to care for a family member with a
serious health condition, or because of the employee’s own serious health condition.
• The “qualifying exigency” provision likely will be broadly defined to include bonding time with a family member
who is being deployed to a combat zone.
• Because the DOL has not yet defined what certification will be sufficient to prove entitlement to leave under the
“qualifying exigency” provision, employers should be cautious about what documents they require to support this
type of leave.
• Several states, including California, Illinois, Indiana, Maine, Minnesota, Nebraska and New York have military
family leave laws and the FMLA does not pre-empt those laws; thus, employers will need to analyze the state law
and the FMLA and coordinate leave under both.

Regulations Addressing Pre-Existing Provisions Of The FMLA Were Just Published

Although DOL has not yet issued the regulations implementing the changes made effective by the NDAA, on February
11, 2008, they released the long-awaited revisions to the regulations for the pre-existing provisions of the FMLA. These
proposed regulations still have to go through a comment period before they become final and effective, but we are getting
our first look at them now. Although employer advocates had hoped, and lobbied, for tighter control of the definition of
"serious health condition" and the use (and abuse) of intermittent leave, DOL officials have said that the proposed
revisions make "only modest changes" to the regulations.

Stay tuned as the DOL regulations addressing the old and the new FMLA provisions are published. HROI will provide
updated analysis of the recently-published proposed regulations very soon.

For additional information, contact:
Shelly Freeman, President of HROI
816.460.5210
sfreeman@hroi-lg.com
Chari J. Young, Of Counsel
816.460.5211
cyoung@hroi-lg.com

HROI, LLC
2345 Grand Boulevard, Suite 1675
Kansas City, MO 64108
Fax: 816.460.5201
Web: www.hroi-lg.com