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What are the new FMLA military leave protections?

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in FMLA Guidelines,HR Management,Human Resources,Leaders & Managers,Management Training

by David B. Ritter, Esq.

Q. I understand that the FMLA military leave rights have been expanded. Can my employees request leave to care for a family member who is a veteran undergoing medical treatment?

A. Yes. On Oct. 28, 2009, the National Defense Authorization Act for FY 2010 was signed into law, expanding the FMLA provisions related to “military caregiver leave.”

The new law permits an eligible employee to take up to 26 weeks of leave within a single 12-month period to care for a family member who is a veteran undergoing medical treatment, recuperation or therapy for a “qualifying injury or illness.” The veteran must have been a member of the armed forces (that includes members of the National Guard or Reserve) at any time during the five years preceding the date on which the veteran undergoes medical treatment, recuperation or therapy.

The new law covers injuries and illnesses incurred by the service member in the line of active military duty, and those that existed before the beginning of the service member’s active duty and that were aggravated by active duty service. The qualifying injury or illness may have manifested itself before or after the service member became a veteran.

Soldier home from Iraq for R&R—can employee use FMLA leave to visit his son?

Q. My employee’s son is currently deployed to Iraq. Can my employee request FMLA leave while his son has rest and recuperation in the United States?

A. Yes. The new law extends “qualifying exigency” leave to the families of ordinary members of the regular armed forces in addition to the families of members of the National Guard, the Reserve or certain retired members of the regular armed forces.

The new provisions permit an eligible employee to use his or her regular 12 weeks of FMLA leave during a 12-month period in connection with a “qualifying exigency” arising out of the fact that a spouse, parent, son or daughter is on “covered active duty.”

Under the new law, ordinary members of the regular armed forces are considered to be on “covered active duty” whenever they are deployed with the regular armed forces to a foreign country, regardless of whether they are deployed in support of a contingency operation.

Because rest and recuperation constitute a “qualifying exigency” under the act, your employee’s request for FMLA leave will be proper.

When is the effective date?

Q. When does the National Defense Authorization Act for 2010 go into effect?

A. The National Defense Authorization Act for FY 2010 law did not have an effective date. Therefore, assume that its provisions became effective when it was signed into law on Oct. 28, 2009.

While the provisions related to “military caregiver leave” do not appear to be effective until much-needed clarifying regulations are issued by the Secretary of Labor, employers must update their current policies and practices to ensure that their workplaces comply with the new changes to the FMLA.

How should our existing FMLA policy change?

Q.  What should my company do to ensure compliance with recent changes to the military leave provisions of the FMLA?

A To ensure compliance with the new changes to the FMLA, you should:

1. Revise current policies and practices to make sure they are consistent with the new changes to the FMLA.

2. Develop a strategy for effectively implementing the revised policy. Seek input from your management team, HR and your attorney to develop and implement a revised FMLA policy.

3. Apply the policy in a nondiscriminatory and nonretaliatory manner.

4. Provide adequate training to managers so they can implement your revised FMLA policy in an effective, consistent, nondiscriminatory and nonretaliatory manner.

5. Post the new FMLA poster available from the U.S. Department of Labor. Visit www.dol.gov to download a copy.

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