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Congress passes new law expanding family medical military leave

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in FMLA Guidelines,Human Resources

by Al Robinson and Denise Giraudo, Esqs.

Just when you thought you had implemented all the necessary changes to your family- and military-leave policies, the law has again changed. On Oct. 28, President Obama signed the National Defense Authorization Act (NDAA) for the 2010 fiscal year, which includes provisions that expand the military leave entitlements of the FMLA.

The NDAA amends both the “qualifying exigency” leave and military caregiver leave rules that became effective in January 2008. The new law expands the leave available for employees, and more employees will now be able to take military family leave.

Redefining ‘qualifying exigency’

Prior to the 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 Reserve 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 Reserve) 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.

Length of leave, reasons

The good news is that the new law does not change the actual 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.

The reasons for which an eligible employee can take qualifying exigency leave are also unchanged. Such leave can still be taken to deal with issues surrounding:

  • Short-notice deployment
  • Military events and related activities such as official ceremonies
  • Child care and school activities
  • Financial and legal arrangements
  • Counseling
  • Rest and recuperation
  • Post-deployment activities
  • Additional activities to address other events that arise out of the covered military member’s active duty or call to active duty status.

Military caregiver changes

The new amendments expand military caregiver leave in two ways:

1. 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 a family member can now 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.

2. The new amendment expands the definition
of a “serious injury or illness” for purposes of determining eligibility for military caregiver leave.

It has been expanded to include an active duty service member’s aggravation 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 states that the injury or illness may manifest itself before or after the armed forces member became a veteran.

Effective date

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 Obama signed the law.

The U.S. Department of Labor is expected to issue guidance to address these changes in the near future.

As a practical matter, you must now review your leave policies to make sure they comply with the new law. If you have any questions, be sure to contact your attorney before denying leave to someone who may be covered by the new law.


Authors: Al Robinson is a shareholder, and Denise Giraudo is an associate, in Ogletree Deakins'  Washington, D.C., office.

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