Congress Expands Family Military Leave

On October 28, 2009, President Barack Obama signed the National Defense Authorization Act (NDAA) for the 2010 Fiscal Year, which includes provisions that expand the military leave entitlements of the Family and Medical Leave Act (FMLA). The NDAA amends both the “qualifying exigency” leave and military caregiver leave that became effective in January 2008.

Q: What specifically in the FMLA does this affect?

A: The new amendments affect FMLA provisions related to “qualifying exigency” leave and military caregiver leave. The new laws expand the leave available for employees, and more employees will be able to take family military leave.

Q: How has “qualifying exigency” leave been amended?

A: Prior to these new amendments, an eligible employee whose spouse, son, daughter or parent was on active duty or called to active duty in support of a contingency operation as a member of the National Guard or Reserves was entitled to qualifying exigency leave. The new law extends qualifying exigency leave to an eligible employee whose spouse, son, daughter, or parent is a member of any branch of the military, including the National Guard or Reserves, and who was deployed or called to active duty in a foreign country. In addition to extending qualifying exigency leave to eligible family members of a member of any branch of the Armed Forces, the new law eliminates the requirement that the active duty be in support of a contingency operation.

Q: How much “qualifying exigency” leave is an employee entitled to?

A: The new law did not change the leave entitlement. A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave during the normal 12-month period established by the employer for FMLA leave.

Q: Did Congress change the reasons that an eligible employee can take “qualifying exigency” leave?

A: The reasons for which an eligible employee can take qualifying exigency leave are unchanged. Such leave can still be taken for short-notice deployment, military events and related activities such as official ceremonies, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, and additional activities to address other events which arise out of the covered military member’s active duty or call to active duty status.

Q: How has military caregiver leave been amended?

A: The new amendments expand military caregiver leave in two ways: First, the new law extends military caregiver leave to eligible family members of veterans who were members of any branch of the military at any time within five years of receiving medical treatment that triggers the need for military caregiver leave. Now, employees who are family members of current service members or veterans that are undergoing medical treatment, recuperation, or therapy for a serious injury or illness incurred in the line of duty may take caregiver leave of up to six months as long as the veterans were members of the military within five years of receiving such treatment. This means that now a family member can take up to 26 weeks of FMLA leave to care for a veteran if he or she seeks medical treatment for a serious service-related injury or illness, incurred while in the line of duty, within five years of serving in the military. Employers do not have the option of using the typical FMLA calendar-year method for military caregiver leave – the 12-month period begins when the employee begins using caregiver leave.

Second, the new amendment expanded the definition of a “serious injury or illness” for purposes of determining eligibility for military caregiver leave. It has been expanded to include the aggravation by an active duty service member in the Armed Forces of existing or pre-existing injuries. Thus, employees may now take military caregiver leave for a family member whose pre-existing injury or illness was aggravated while on active duty. As for veterans, the definition requires that the injury or illness may manifest itself before or after the Armed Forces member became a veteran.

Q: When do the new amendments take effect?

A: The NDAA did not specify the date on which these amendments to the family military leave entitlements become effective. Thus, the presumption is that these changes took effect when President Obama signed the NDAA. It is anticipated that the U.S. Department of Labor will issue guidance to address those changes in the near future.

This article was drafted by the attorneys of Ogletree Deakins, a national labor and employment law firm that represents management. This information should not be relied upon as legal advice.

This article appears in the December 2009 issue