New Federal Legislation Alters Military Family Leave Entitlements Under FMLA

On October 28, 2009, President Obama signed the National Defense Authorization Act for Fiscal Year 2010 (NDAA of 2010) and the legislation went into effect immediately. The legislation includes expansions to the provisions of the federal Family and Medical Leave Act (FMLA) that provide leave due to a qualifying exigency and military caregiver leave to families of military personnel.

Leave Due to a Qualifying Exigency. Under the FMLA, as amended in 2008 and as interpreted by the applicable DOL regulations, eligible employees are entitled to take 12 weeks of FMLA leave due to a qualifying exigency that arises out of the fact that the employee's spouse, son, daughter or parent in the National Guard or Reserves is on active duty or has been notified of an impending call or order to active duty. Under the NDAA of 2010, leave due to a qualifying exigency has been expanded to include members of the regular Armed Forces who are deployed to a foreign country.

Military Caregiver Leave. Under the FMLA, as amended in 2008 and as interpreted by the applicable DOL regulations, eligible employees may take up to 26 workweeks of military caregiver leave during a single 12-month period. Military caregiver leave is available to employees who are the spouse, son, daughter, parent or next of kin of a covered servicemember who has a serious injury or illness incurred in the line of duty on active duty.

The NDAA of 2010 expands the definition of a covered servicemember to include any veteran who is undergoing medical treatment, recuperation or therapy for a serious injury or illness and who was a member of the Armed Forces, the National Guard or Reserves at any time during the five-year period preceding the treatment, recuperation or therapy. Previously, military caregiver leave was available only to care for a current member of the Armed Forces, National Guard or Reserves with a serious injury or illness.

The NDAA of 2010 also expands the definition of a serious injury or illness to include a pre-existing injury or illness that was aggravated by the covered servicemember's service in the line of duty on active duty. Previously, military caregiver leave was unavailable to care for the aggravation of existing injuries.

Additionally, the new legislation provides that in the case of veterans, a serious injury or illness includes a qualifying injury or illness that was incurred or aggravated in the line of duty on active duty in the Armed Forces and that manifested itself before or after the member became a veteran. Previously, military caregiver leave was unavailable to provide care for a servicemember whose injury or illness manifested itself after the servicemember left military service.

FMLA Poster and Policies. The DOL regulations require employers to post a general notice regarding employee rights and responsibilities under the FMLA. The notice must include, at a minimum, all the information in the DOL poster that is included as an appendix to the regulations.

However, the description of military family leave entitlements in the DOL poster is no longer an accurate statement of the law under NDAA of 2010. Pending guidance from the DOL regarding the poster, employers should review and revise their own policies, as appropriate, and make leave available to eligible employees to the full extent of the expansions under the NDAA of 2010.