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Statement of Need: The FMLA requires covered employers to grant eligible employees up to 12 workweeks of unpaid, job-protected leave a year for specified family and medical reasons, and to maintain group health benefits during the leave as if the employees continued to work instead of taking leave. When an eligible employee returns from FMLA leave, the employer must restore the employee to the same or an equivalent job with equivalent pay, benefits, and other conditions of employment. FMLA makes it unlawful for an employer to interfere with, restrain, or deny the exercise of any right provided by the FMLA. In addition, section 585(a) of the National Defense Authorization Act for FY 2008 (NDAA), Public Law 110-181, amended the FMLA effective January 28, 2008, to permit an eligible employee who is the “spouse, son, daughter, parent, or next of kin of a covered servicemember” to take up to a total of 26 workweeks of leave during a single 12-month period to care for the covered servicemember, defined as “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." The NDAA amendment to FMLA also permits an eligible employee to take up to 12 workweeks of 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.” Regulations implementing these amendments were published November 17, 2008, and took effect January 16, 2009 (73 FR 67934). The Department is reviewing the implementation of these new military family leave amendments and other revisions of the current regulations.

Summary of the Legal Basis: These regulations are authorized by section 404 of the Family and Medical Leave Act, 29 U.S.C. 2654.

Alternatives: After completing a review of the implementation of the new military family leave amendments and other revisions of the regulations implemented in January 2009, regulatory alternatives will be developed for notice-and-comment rulemaking.

Anticipated Costs and Benefits: Preliminary estimates of the anticipated costs and benefits of this initiative will be determined once regulatory alternatives are developed.

Risks: This rulemaking action does not directly affect risks to public health, safety, or the environment.